Nevada Reports 1964 (80 Nev.) PDF

80 Nev.
1, 1 (1964)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 80
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80 Nev. 1, 1 (1964) Department of Highways v. Roman Catholic Bishop
THE STATE OF NEVADA, On relation of Its Department of Highways, Appellant, v.
ROMAN CATHOLIC BISHOP OF RENO, a Corporation Sole, ROBERT J. DWYER,
Incumbent, Vestee, Respondent.
No. 4713
January 16, 1964 388 P.2d 202
On motion to dismiss appeal.
Action wherein the Second Judicial District Court, Washoe County, Thomas O. Craven,
Judge, rendered judgment, and the State appealed. The Supreme Court held that state legal
research assistant's inexperience in appellate procedure, and misreading of rule, was not
excusable neglect with respect to State's failure to docket record on its appeal within
maximum time permitted.
Motion granted.
80 Nev. 1, 2 (1964) Department of Highways v. Roman Catholic Bishop
Harvey Dickerson, Attorney General, Robert J. Potter, Deputy Attorney General, Eli
Grubic, Special Deputy Attorney General, of Carson City, for Appellant.
Belford & Anglim, of Reno, for Respondent.
1. Appeal and Error.
State legal research assistant's inexperience in appellate procedure, and misreading of rule, was not
excusable neglect with respect to State's failure to docket record on its appeal within maximum time
permitted. NRCP 73(g), 75(a).
OPINION
Per Curiam:
In this case the State failed to docket the record on appeal within the maximum time
permitted by NRCP 73(g). It had secured a district court order extending the time within
which to do so to a day not more than 90 days from the date of filing its notice of appeal. The
record on appeal was finally filed with this court 23 days late. Because of this the respondent
moved to dismiss the appeal. The State seeks to defeat the motion by the affidavit of a legal
research assistant of the highway department, purporting to show excusable neglect. It
appears from that affidavit that 88 days had passed without any action by the State to secure
the record on appeal. Indeed, not even a designation of the contents of such record was filed
(NRCP 75(a)), though this must be done promptly after the appeal is taken. The excuse
offered for such neglect is the inexperience of the research assistant with appellate procedure,
and his misreading of the plain language of NRCP 73(g). We do not consider that the excuse
offered constitutes excusable neglect. Cf. McDowell v. Drake, 77 Nev. 136, 360 P.2d 257.
The respondent's motion to dismiss is granted.
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80 Nev. 3, 3 (1964) Kowalchuk v. Hall
JOE KOWALCHUK, MATT BERNARD, RAY EDISON, BOB CARVER,
GLEN MENDENSHAUSEN and PETE STRUZIS, Appellants, v. DONALD T. HALL and
ANDY ANDERSON, Respondents.
No. 4646
January 20, 1964 388 P.2d 201
Appeal from judgment of the First Judicial District Court, Douglas County; Frank B.
Gregory, Judge.
Specific performance case. The lower court gave summary judgment for the defendant.
The plaintiffs appealed. The Supreme Court, Thompson, J., held that purchasers of lots in
subdivision from seller and subdivider who allegedly failed to keep his promise to pave all
roads in subdivision had adequate legal remedy and not remedy of specific performance,
where alleged promise was made after dedication of roads to county, and cost to pave roads
was ascertainable as well as any consequential damages flowing from failure to pave.
Judgment affirmed.
Carl F. Martillaro, of Carson City, for Appellants.
Cameron M. Batjer, of Carson City, for Respondents.
1. Specific Performance.
Purchasers of lots in subdivision from seller and subdivider who allegedly failed to keep his promise to
pave all roads in subdivision had adequate legal remedy and not remedy of specific performance, where
alleged promise was made after dedication of roads to county, and cost to pave roads was ascertainable as
well as any consequential damages flowing from failure to pave. NRS 116.060.
Generally, specific performance will be refused where performance of promise requires conduct by one
over whom promisor has no right of control.
OPINION
By the Court, Thompson, J.:
In the lower court six plaintiffs (purchasers of subdivision lots) joined in seeking a decree
of specific performance to compel the defendant Hall (the seller and subdivider) to pave all
roads within the subdivision.
subdivider) to pave all roads within the subdivision. They claim that the defendant had
promised to do so, and that they had relied upon his promise in deciding to purchase their
respective lots from him. Hall, by answer, denied their charges, and subsequently moved for
summary judgment. NRCP 56. His motion was granted and judgment entered in his favor.
The plaintiffs appeal.
[Headnote 1]
The record presented to the district court and now to us shows that on July 5, 1955, Hall
and his wife duly acknowledged and recorded a subdivision plat for Kingsbury Meadows
Subdivision, Lake Tahoe, Douglas County, Nevada. The plat had been accepted without
reservation by the board of county commissioners. The avenues, roads, streets, etc. depicted
thereon were thereby dedicated in fee to Douglas County. NRS 116.060; Charleston Plaza,
Inc. v. Bd. Educ., 79 Nev. 476, 387 P.2d 99 (school site). The promise to pave all roads
within the subdivision claimed by the plaintiffs to have been made by Hall, was made (if at
all) after Douglas County had become the owner of them. The legal question presented below
and here is whether the remedy of specific performance is available to the plaintiffs in such
circumstances. We agree with the lower court that it is not.
[Headnote 2]
It is evident to us that the plaintiffs can obtain justice by a judgment for money damages, if
the alleged contract to pave the roads is proved and there exists no lawful defense to an action
for its breach. Cf. Barcroft Woods, Incorporated v. Francis, 201 Va. 405, 111 S.E. 2d 512.
The cost to pave the roads is ascertainable, also other consequential damages, if any, flowing
from the failure to pave. The legal remedy would be adequate. Furthermore, the prior plat
dedication vesting title and control of the roads in Douglas County is a circumstance which
renders specific performance impracticable. Villa Corp. v. S. D. Walker, Inc., 3 Cir., 187 F.2d
493; Fiedler, Inc. v. Coast Finance Co., 129 N.J.Eq. 161, 18 A.2d 268, 135 A.L.R. 273; 5
Corbin, Contracts 1170, at 737.1 Generally, such relief will be refused where the
performance of the promise requires conduct by one over whom the promisor has no right
of control.
135 A.L.R. 273; 5 Corbin, Contracts 1170, at 737.
1
Generally, such relief will be refused
where the performance of the promise requires conduct by one over whom the promisor has
no right of control. The principle applies here. In our view, the plaintiffs' choice of remedy is
plainly wrong. Other points raised need not be discussed. The summary judgment entered
below is affirmed.
Badt, C. J., and McNamee, J., concur.
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1
The Corbin statement is: If the performance promised is one that cannot take place without the
co-operation of a third person, this will frequently bring the case within the rule against decreeing specific
performance.
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80 Nev. 5, 5 (1964) Arley v. Liberty Mutual Fire Insurance Co.
CHARLOTTE HUNTER ARLEY, Appellant, v. LIBERTY MUTUAL FIRE INSURANCE
COMPANY, a Massachusetts Corporation, Respondent.
No. 4640
January 23, 1964 388 P.2d 576
Appeal from judgment of the Second Judicial District, Washoe County; Clel Georgetta,
Judge.
Action on fire policy. The trial court rendered judgment for insured, and insured appealed
from portion of judgment denying full amount of insurance covering personalty and rental
income and denying recovery of interest and attorney fees. The Supreme Court, Badt, C. J.,
held that findings and judgment for insured for loss of personalty and loss of rental income as
result of fire were properly limited to and by amounts which fire insurer admitted to be due
where insured had failed to inform insurer of what items of personalty had been damaged or
destroyed and had failed to show past expenses from which probable net rentals could have
been determined.
Affirmed.
[Rehearing denied February 26, 1964]

80 Nev. 5, 6 (1964) Arley v. Liberty Mutual Fire Insurance
Charlotte Hunter Arley, of Portland, Oregon, and Leslie M. Fry, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom, and Hug, of Reno, for Respondent.
1. Insurance.
Allegation that insured had furnished insurer with notice and proof of loss in accordance with policy and
insurer's denial of allegation were specific and particular within rule regarding pleading the
performance or occurrence of conditions precedent. NRCP 9(c).
2. Pleading.
By presentation of evidence on sufficiency of proof of loss without raising of any question of pleading,
technical point of sufficiency of denial that proper proof of loss had been furnished was waived, and legal
sufficiency of proof of loss could be determined on the merits. NRCP 9(c), 15(b).
3. Trial.
Failure to make finding as to amount of loss of furniture and fixtures as result of fire was justified for
failure of insured to supply fire insurer with proof of loss containing exactly the items of personalty
damaged or destroyed.
4. Insurance.
Fire policy providing for payment of loss of rental income not exceeding actual loss for time required in
exercise of due diligence and dispatch to restore building entitled insured to recover gross rental minus
expenses of rental operation.
5. Trial.
In absence of evidence to establish expenses insured had sustained in connection with renting to others
building destroyed by fire and covered by fire policy authorizing payment to insured for actual loss of
rental income, failure to find amount of loss of rental income was justified.
6. Insurance.
Findings and judgment for insured for loss of personalty and rental income as result of fire were properly
limited to and by amounts which fire insurer admitted to be due in case wherein insured had not informed
fire insurer of what items of personalty had been damaged or destroyed and had failed to show past
expenses from which probable net rentals could have been determined.
7. Tender.
Evidence justified finding that fire insurer's admission of liability for payment of specified sums for loss
of personalty and rent might be considered a tender of those amounts to insured who refused tender and
brought suit.
8. Interest.
Losses on building, personalty, and rent as result of fire were not liquidated other than by judgment,
which awarded amounts equal to fire insurer's admission of liability for loss of personalty and rent
and amount higher than insurer's admission for loss of building after voluminous
evidence had been considered at great length, and interest did not commence to run
prior to entry of judgment.
personalty and rent and amount higher than insurer's admission for loss of building after voluminous
evidence had been considered at great length, and interest did not commence to run prior to entry of
judgment. NRS 99.040.
9. Costs.
Refusal to allow attorney fees under rule making attorney fees allowable when it appears to satisfaction of
court that affidavits are presented in bad faith solely to delay was discretionary. NRCP 56(g).
Point not raised in trial court could not be raised on appeal.
OPINION
By the Court, Badt, C. J.:
Appellant, plaintiff below, sued the respondent insurance company upon an insurance
policy in the face amount of $43,600, which covered the building, its furniture and fixtures,
and rental income; $35,000 covered the building, $5,000 covered the furniture and fixtures,
and $3,600 covered the rental income. Upon the company's refusal to pay the full amount of
appellant's claim as demanded, she sued to recover the full amount of the policy, together
with interest and attorney fees. The trial court found that there was a total loss of the building
and awarded appellant judgment for the full $35,000 on this coverage, but allowed her
$4,014.21 for the loss of the personal property and $600 for the loss of rental incomethese
being the respective amounts admitted by respondent as the amount of loss on said two items.
It denied recovery for interest and attorney fees demanded by appellant.
Appellant appealed from that part of the judgment denying the full amount of insurance
which covered the personal property and rental income and which denied recovery of interest
and attorney fees. We conclude that the judgment was in all respects proper and without error
and must be affirmed.
Appellant filed with her record on appeal a statement of the points on which she intended
to rely on the appeal, NRCP 75(d), specifying error in the following: (1) in denying plaintiff
"total loss" on her personal property; {2) in denying plaintiff "total loss" on her rental
income; {3) "in denying plaintiff pre-judgment interest on the full amount of her loss";
and {4) "in denying plaintiff an attorney's fee."
in denying plaintiff total loss on her personal property; (2) in denying plaintiff total loss
on her rental income; (3) in denying plaintiff pre-judgment interest on the full amount of her
loss; and (4) in denying plaintiff an attorney's fee. This was subject to some variance in the
specification in her opening brief, SCR 23(2) (c), of the errors of law which the appeal seeks
to correct. The specification of error there is (1) that the findings are insufficient to support
the judgment in that the court (a) failed to make a finding as to the amount of loss of the
furniture and fixtures, and (b) as to the amount of loss of rental income; (2) that the court's
conclusions are contrary to law in that (a) the sufficiency of the proof of loss was not in issue,
(b) that the plaintiff's right to recover for the loss of her furniture and fixtures was not forfeit,
(c) that plaintiff did not fail to sustain her burden of proof on the issue of rental income loss,
(d) that she was entitled to interest as part of the judgment on the full amount found due, and
(e) that she was entitled to an attorney's fee as part of the judgment.
A pretrial order was made pursuant to a pretrial hearing in which the court defined the
issues of law and facts involved and to which the trial of the issues was confined. After the
trial the case was submitted to the trial court on oral argument and briefs, and the court filed a
scholarly opinion comprising 36 typewritten pages in which it thoroughly explored and
determined every issue advanced by the parties.
[Headnote 1]
Some procedural matters must first be disposed of. Appellant contends as noted that the
sufficiency of the proof of loss was not in issue. In support of this, she relies on NRCP 9(c).
1
Plaintiff's averment in this respect was contained in paragraph 5 of her complaint as follows:
Plaintiff has furnished defendant with notice and proof of loss in accordance with the
terms of the policy, and has otherwise duly performed all of the conditions and has
complied with all of the requirements thereof."
____________________

1
NRCP 9 (c). Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it
is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of
performance or occurrence shall be made specifically and with particularity.
notice and proof of loss in accordance with the terms of the policy, and has otherwise duly
performed all of the conditions and has complied with all of the requirements thereof.
Respondent's answer to such paragraph was: Denies the averments of paragraph 5. It is
difficult to see how the denial of plaintiff's allegation that she had furnished defendant with
notice and proof of loss in accordance with the terms of the policy could be made more
specifically or with greater particularity. In this respect we can ignore the general allegation
of performance of conditions precedent and confine ourselves to the particular allegation as to
furnishing notice of proof of loss in accordance with the terms of the policy. Both the
allegation and the denial were specific and particular.
The policy required the plaintiff to furnish a complete inventory of the destroyed,
damaged, and undamaged property, showing in detail quantities, costs, actual cash value, and
amount of loss claimed, and to render to the company a proof of loss signed and sworn to by
the insured showing the actual cash value of each item thereof and the amount of loss thereto
and verified plans and specifications of buildings, fixtures, or machinery destroyed or
damaged, and to produce, if required, books of account, bills, invoices, and other vouchers,
and in case the parties should fail to agree as to the actual cash value or amount of loss, that
(as expressed by the trial court) either party, on written demand may put into effect an
arbitration proceeding outlined in the policy. No arbitration proceeding was demanded or
adopted.
The fire occurred May 26, 1960. On July 25, 1960, appellant filed notice and proof of loss.
On July 28, 1960, respondent wrote appellant that the purported proof of loss is defective
and incomplete in the following respects:
1- * * * the information set forth therein is totally inadequate and incomplete.
2- In the said instrument the total cash loss and damage is stated as follows: Actual cash
value of realty$38,890.00, although an exact amount of loss and damage verified by
necessary detail is not attached.
In the said instrument the total cash loss and damage on personal property is stated in
the amount of $5,500.00, but no schedule of loss and damage setting forth the amount of
loss and the necessary detail is attached.
on personal property is stated in the amount of $5,500.00, but no schedule of loss and damage
setting forth the amount of loss and the necessary detail is attached.
In the said instrument the total cash value and loss and damage on rental income is stated
in the amount of $600.00, however, no supporting evidence is attached.
3- You have made claim of loss amounting to $40,600.00 which is not supported by any
plans, specifications or detail of any kind which would tend to show the extent of loss and
damage claimed.
4- There is no schedule supporting the claim of cost or loss on household furniture
and/or personal property and the company requests certified plans and specifications of the
building and also a recapitulated detail of personal property destroyed.
The said Liberty Mutual Insurance Company totally disagrees with you as to the amount
of loss claimed by you on each and all of the different articles of property set forth in said
purported preliminary proof of loss and to each and all thereof.
The said above mentioned Company admits that you suffered a loss of $23,267.28 to the
building.
The said above mentioned Company admits that you suffered a loss of $4,014.21 to
household furniture and personal property.
The said above mentioned Company admits that you suffered a loss of $600.00 on rental
income coverage.
The letter added that it did not waive any of its rights or any defenses under the policy, but
specifically reserved the same.
[Headnote 2]
We are satisfied that the sufficiency of the proof of loss was directly placed in issue under
NRCP 9(c). Coral Gables, Inc. v. Skehan, 47 F.Supp. 1 (D.C.N.J. 1942). In further support of
this conclusion, after determining that there was a total loss of the building, the court properly
stated that both sides presented evidence without raising any question of pleading.
Therefore, the court determines that each side has waived the technical point of pleading
above discussed and the court is now free to determine the legal sufficiency of the 'Proof of
Loss' upon the merits as presented by the evidence."
free to determine the legal sufficiency of the Proof of Loss' upon the merits as presented by
the evidence. Accordingly, this was also authorized and justified by reason of NRCP 15(b).
2
Whiteman v. Brandis, 78 Nev. 320, 372 P.2d 468.
[Headnote 3]
Appellant's next contention of a procedural nature is that the court (a) failed to make a
finding as to the amount of the loss of the furniture and fixtures, and (b) as to the amount of
loss of rental income. As noted, the company notified appellant of the insufficiency in the
proof of loss supplied by appellantparticularly in her failure to comply with the contract
requirements to furnish (1) description of property, (2) nature and extent of loss or damage,
(3) where purchased, (4) when, (5) original cost, (6) value at time of loss, (7) cost of repair.
The trial court said: None of this information was given on this schedule as to the items of
furniture. The only mention of personal property anywhere on this Proof of Loss is on the
face where there are typed the words, Personalty Loss, Total.' That was not true. The
evidence at the trial established that the personal property damaged or destroyed was only a
part of the property insured, and, therefore, was only a partial loss' even though the plaintiff
contended that the actual loss in value exceeded the policy limit. The defendant was entitled
to be informed exactly what items of personal property had been damaged or destroyed. In
arranging settlement under the policy, the defendant was not compelled to accept the
plaintiff's statement, Personalty Loss, Total,' and so informed her. * * * The plaintiff did not
correct the deficiency by supplying an amended or supplemental Proof of Loss.' Instead, she
refused to do so, * * * but merely repeat[ed] Furniture and fixtures described as Item 2 has
an actual cash value of $5,000 and the loss of said Item 2 is $5,000.'
The learned trial judge then discussed at some length Clark v. London Assurance Corp., 44
Nev. 359, 195 P.
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2
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. * * *
809, and Engleman v. Royal Ins. Co., 56 Nev. 319, 51 P.2d 417, 101 A.L.R. 1294, and
correctly concluded that while failure to furnish a proof of loss' within the 60 day limited
period does not constitute a forfeiture of the insurance coverage, * * * no recovery can be
had until such proof of loss, as required by the policy, has been furnishedeven after the 60
day period has expired. The trial court's ultimate conclusion was that as to the furniture,
linens, dishes, and other such household items, the Proof of Loss was not legally sufficient
in either fact or law. Under such conclusion the court could not make a finding as to the
amount of loss of the furniture and fixtures.
[Headnotes 4, 5]
In like manner the court was justified in refusing to make a finding as to the amount of
loss of rental income. The rent loss rider, article 6, provided for the payment to the insured
of the loss of rental income * * * but not exceeding the actual loss sustained by the insured
resulting from such untenantability, and for such length of time as would be required with the
exercise of due diligence and dispatch to restore to a tenantable condition such building * *
*. Quoting from Chronicle Bldg. Co. v. New Hampshire Fire Ins. Co., 21 Ga.App. 687, 94
S.E. 1043, and also referring to 1 Couch, Insurance, 2nd, 1.92, at 94, and 45 C.J.S.,
Insurance 920, at 1027, and 5 Appleman, Insurance 3119, at 275, the court correctly
concluded the amount of liability is measured by the gross rental minus the expenses of the
insured's operation, and further from the Chronicle Bldg. case, Under such a policy, the
liability of the insurer for such an actual loss is to be measured by what would have been the
gross rental during the period covered by the policy, less the expenses of operation devolving
upon the insured. In this respect the court held:
Before the fire, the plaintiff collected total gross rentals of $735.00 a month. Out of this,
she had expenses to pay such as electrical power bills, water, fuel oil for heat, janitor service
for the halls and stairs, even if not for inside the units. She had a yard, trees and lawn to
maintain.
maintain. She had taxes to pay and also premiums on even this fire insurance policy if no fire
had occurred.
After the fire, the plaintiff was relieved of most of these expenses; in fact all of them,
except taxes on the land * * *.
The trial court's conclusion that plaintiff was entitled to receive only the actual loss
sustained by reason of the indemnification provision in the policy, and accordingly, only the
net rental income was without error. The court's further statement that, The evidence in this
case provides no way for the Court to determine even an approximate amount is fully
justified. No evidence was offered by the plaintiff to establish the past expenses from which
the probable net rentals could be determined.
[Headnote 6]
Accordingly, on the two items last discussedthe insurance on the furniture and the rental
revenuethe court's findings and judgment, as well as the court's refusal to make a finding
by reason of lack of evidence to support a finding, were properly limited to and by the
amounts which respondent admitted to be due. Appellant's constant reiteration of the
statement that as to these two items the loss was total is no answer. The trial court was
talking about the sufficiency of the evidence upon which to base a finding. On the motion to
amend the findings and the judgment the court even reserved judgment until the court
reporter's transcript could be completed on certain items. We find no error in the court's final
conclusion as to the insurance on the furniture and on the rental revenue.
Appellant next contends that the court was in error in failing to allow interest on each of
the three items of recovery. The rule in Nevada is declared in Agricultural Ins. Co. v. Biltz,
57 Nev. 370, 64 P.2d 1042. In that case the court, after quoting section 4322 NCL, now NRS
99.040, said:
The policy of insurance is a contract and contains the following stipulation:
The loss shall not become payable until sixty days after notice, ascertainment, estimate,
and satisfactory proof of loss herein required have been received by this company,
including an award by appraisers where appraisal has been required.'
proof of loss herein required have been received by this company, including an award by
appraisers where appraisal has been required.'
This stipulation provides methods for establishing the loss, in other words, for liquidating
the claim and fixing a time thereafter for payment. But as there was no satisfactory proof of
loss, or valid award, the demand was unliquidated until the rendition of judgment.
The money did not become due under the statute until then. The statute is in harmony
with the general rule that interest is not recoverable upon unliquidated demands, but is
allowable only after such demands have been merged in a judgment.
3

[Headnote 7]
The court's formal findings as to the two items of loss, the furniture and the rentals were:
XXXVI. The amounts defendant has admitted liability for in the sum of $4,014.21 for loss
of personal property, and $600 for loss of rent were not liquidated. XXXVII. The defendant's
admission of liability for the payment of $4,014.21 for loss of personal property and $600 for
loss of rents may be considered a tender of those amounts, which tender was refused by the
plaintiff. These findings are fully justified by the evidence. Appellant cites a number of
authorities contra, but we do not find the same in point or controlling.
[Headnote 8]
The trial court's pretrial order, under the defendant's admission of liability, recited such
admission of liability as follows: $23,276.28 on the building, $4,014.21 on the personal
property, and $600 on rental income. As noted, the offer was rejected. The loss on the
building was established by judgment to be $35,000.
4
As to each and all of these three
items, the respective amounts were not liquidated other than by the judgment itself.
____________________

3
For an analysis of the holding in Agricultural Ins. Co. v. Biltz, supra, see Dollar Investment Corp. v.
Modern Market, Inc., 77 Nev. 393, 365 P.2d 311.

4
The lower court considered the voluminous evidence on this point at great length before allowing the full
coverage on the building. The insurance company took no appeal. Accordingly, this item is not in issue and
requires no discussion.
and all of these three items, the respective amounts were not liquidated other than by the
judgment itself. Accordingly, interest did not commence to run prior to the entry of judgment.
[Headnotes 9, 10]
Appellant's final contention is that the court erred in not allowing her attorney fees as part
of the judgment. It appears from the record that at the hearing of appellant's motion to reopen
the case for further testimony appellant specifically waived attorney fees for the trial. Indeed
under NRS 18.010(2), restricting the power of the court to allow attorney fees to cases in
which the demand was less than $3,000, the court had no authority to allow an attorney fee.
While appellant takes issue with the contention that there was a waiver by appellant, it is
clear to us that such is the case. However, appellant bases the present contention on NRCP
56(g). Under this section attorney fees are allowable when it appears to the satisfaction of the
court that any affidavits are presented in bad faith solely for the purpose of delay. Such
allowance was within the discretion of the court. Nothing in the record indicates an abuse of
such discretion in the court's denial of attorney fees under this section. Appellant now seeks
attorney fees on a third ground, namely, that the insurance policy was written in Oregon and
is governed by Oregon law, and asserts that this is a matter of full faith and credit. So far as
the record before us discloses, this point was not raised in the trial court and may not be
raised here for the first time. In re Devincenzi's Estate, 65 Nev. 158, 190 P.2d 842; Goldring
v. Kline, 71 Nev. 181, 284 P.2d 374. There was no error in the denial of attorney fees.
The judgment is affirmed with costs.
McNamee, J., and Marshall, D. J., concur.
Thompson, J., being disqualified, the Governor commissioned Honorable George E.
Marshall, Judge of the Eighth Judicial District Court, to sit in his place.
____________
80 Nev. 16, 16 (1964) Kaltenborn v. Bakerink
R. J. KALTENBORN, Doing Business as GENERAL AUTO PARTS, and DUANE KEMP,
Appellants, v. CLAYTON E. BAKERINK, Respondent.
No. 4641
January 24, 1964 388 P.2d 572
Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Judge.
Action to recover for damages caused by alleged negligence. The lower court entered
judgment on a verdict for plaintiff and denied defendants' motion for new trial, and
defendants appealed. The Supreme Court, McNamee, J., held that the verdict was not
objectionable on ground of misconduct of jury, even if in course of discussion as to amount
of verdict, the jurors from time to time without binding themselves to abide by the result
determined the average of the different amounts which the several jurors at the time thought
should be awarded until they arrived at a figure which all agreed was reasonable.
Affirmed.
Morse & Graves, of Las Vegas, for Appellants.
Lionel & Gunderson, of Las Vegas, for Respondent.
1. Trial.
For jurors to agree in advance to particular mode of arriving at verdict and to abide by the contingent
result without reserving right to dissent is improper and verdict arrived at by such means should be set
aside.
2. Trial.
Jurors may properly determine the average of the different amounts which in the judgment of each should
be awarded as damages, provided such method is adopted merely for purpose of arriving at a reasonable
amount without being bound by the result.
3. New Trial.
Verdict awarding damages for alleged negligence was not objectionable on ground of misconduct of jury,
even if, in course of discussion as to amount of verdict, jurors from time to time but without binding
themselves to abide by the result determined the average of the different amounts which the several jurors
at the time thought should be awarded until they arrived at figure which all agreed was reasonable.
4. New Trial.
Neither testimony of juror nor affidavit of what affiant was told by juror as to how jury arrived at verdict
is competent to impeach jury's verdict.
OPINION
By the Court, McNamee, J.:
This is an action for damages resulting from the alleged negligence of the defendants
(appellants herein). The jury rendered a verdict of $58,000 for respondent and judgment
thereon was entered. Thereafter, appellants moved for a new trial in part upon the ground of
misconduct of the jury. The motion was based on the affidavit of William R. Morse, one of
the attorneys for appellants, and the oral testimony of Edward I. Cohen, foreman of the jury.
Appeal is from the judgment and from the denial of appellants' motion for a new trial.
It appears from the Morse affidavit that after the jury returned its verdict and while Cohen
was leaving the courtroom, Morse inquired of Cohen upon what basis the jury arrived at its
verdict; that Cohen replied, it was a simple matter; that he had each member of the jury
write upon a piece of paper the amount of money each one of them thought that Plaintiff
should be entitled to recover; that he thereafter totalled the amounts and divided by twelve
and that said sum of $58,000.00 was the result of such computation.
The transcript of the proceedings on the motion for new trial shows that appellants offered
in evidence the Morse affidavit in support of the motion. The record is silent however
whether the court received it in evidence. Cohen was then called as a witness for the movants.
Over the objection of respondent he testified as follows:
By The Witness: A. When we got the case we walked into the Jury room and we sat
down and they elected me as the foreman. Now, each Juror, we talked it over about the case.
One Juror wanted to give so much and the other Juror wanted to allow so much and this and
that.
and that. I asked the rest of them what they were going to do. One of the Jurors suggested that
we take what expenses he had with the doctors and the hospital, how much he would have
earned as a heavy duty operator, and what he is earning now, take the figure that he is asking
and lump it all together, and then each Juror divide it by 12 and find out what the verdict
would be. Now, the first time we went around, one of the Jurors I remember, said the verdict
was too little. Another Juror said it was too big. In other words we went around about 3 or 4
times before we finally arrived at the figure that you have there, which I understand they cut
off the salary that he would have earned as a heavy duty operator and figured the salary he is
earning now as business agent for the Union and then we put together his hospital bills and
everything and then we came to that figure.
By Mr. Morse: Q. Now, isn't it a fact that you had them write down on a slip of paper
what they thought he was entitled to?
A. Yes sir.
Q. And then you added that up and then you divided it by 12 and that figure was
$58,000.00?
A. Yes, that's right, sir.
* * * * *
By Mr. Morse: Q. It was agreed on by the Jury to find their verdict by this means?
A. Yes.
On cross-examination Cohen testified as follows:
By Mr. Lionel: Q. Mr. Cohen, isn't it true the Jury considered for some time the amount
of damages?
A. Yes, we talked it over.
Q. And there was quite a disparity between yourself and various members of the Jury?
A. That's right, sir.
Q. About how many times did you go around and write figures on paper?
A. We went around, as far as I can remember, I think about 5 or 6 times we went around.
Q. And all Jurors wrote down a different figure?
A. Wrote down different figures and talked it over.
Q. And you say finally there was a figure that was divided by 12. Is that right?
A. That's right.
Q. And isn't it true that that figure that the people wrote down was divided by 12 and you
or one of the Jurors said Let's see what will happen if we do this'?
A. That's right, yes.
Q. Exactly what was said at that time?
A. Well, as far as I can remember, one of the ladies of the Jury said that if we give too
much, too big of a verdict, we are punishing the insurance company. I spoke up and I said that
nobody is being punished. All we were there for was one reason and that was to give the man
what he was entitled to. Then we tore up the slips of paper that we had wrote previous to this
question and we went around again and when we got to the second time, as far as I can
remember, one of the fellows, a gentleman there that was working for one of the air lines,
said that the man wasn't entitled to that amount of money, that it seemed to him that nobody
would earn that kind of money in a lifetime, so we talked over those things and then we went
around two or three times more and finally, the last time we wrote the slips down, everybody
read the slips and we added, totaled it up. Then is when we arrived at a verdict, the last time
when we all came to that figure.
Q. In other words as I understand it, there was about three times you did this and finally
you reached a figure and then was it that price figure that you gave or was it increased or
rounded off or anything?
A. It was rounded out to come to an even figure.
Q. And then after it was rounded off to come to an even figure, did the Jurors then vote
on that figure? Did you vote on that figure?
A. We all agreed to that figure, if that's what you call a vote.
Q. I mean after that figure(interrupt)
A. After that figure was given, before we called for the Bailiff, we agreed on that figure.
Q. And was that figure discussed?
A. That figure was discussed and everybody agreed that they didn't think that was too
much or too little. In denying the motion for new trial it does not appear whether the court
did so on the basis that the evidence was incompetent or because it was insufficient.
[Headnotes 1, 2]
In Lee v. Clute, 10 Nev. 149, 153, this court has said: The rule, as stated in many of the
decided cases, is to the effect that if the jurors previously agree to a particular mode of
arriving at a verdict, and to abide by the contingent result at all events, without reserving to
themselves the liberty of dissenting, the verdict should be set aside; but if the method is
adopted merely for the sake of arriving at a reasonable amount without binding the jurors by
the result, the verdict should stand. (citations)
The cases where verdicts have been set aside proceed upon the theory that if upheld,
where jurors bind themselves in advance, it might lead to great injustice, because it would
enable one inveterate juror, by marking down a very large or small sum, to produce an
average and procure a verdict for an amount which would be unreasonable, and at utter
variance with the judgment of the other jurors. This would be a chance verdict, and whenever
such misconduct is properly shown, the verdict ought to be set aside. In every case the verdict
ought to be the result of reason, reflection and conscientious conviction. Nothing should be
determined by accident, hazard, chance or lot. It is, however, very natural that in cases where
there is no ascertained demand, there will often be found a difference of opinion as to the
proper amount to be allowed. It seldom happens that twelve men are found who will at once
agree upon the precise sum, and mutual concessions have to be made before a verdict is
arrived at. Where this difference of opinion exists, and the jurors adopt the method selected in
this case, if each juror marks down the sum which he thinks is correct and right, the result
would fairly express the average judgment of the jury, and this mode of harmonizing upon
the verdict would be just as pure and innocent as if effected 'by word of mouth.'"
of harmonizing upon the verdict would be just as pure and innocent as if effected by word of
mouth.'
In this connection the court in that case quoted with approval the following statement of
Chief Justice Kent: The charge here is not that the jury cast lots whether they should find for
the plaintiff or defendant, but only that, in ascertaining the amount of the damages, they took
the average sum deduced from the different opinions of each other. This has no analogy to the
case of casting lots, or determining by chance for whom they shall find. The liquidation of
damages must always, in a certain degree, be the result of mutual concession, since the
amount of the injury is not susceptible of being ascertained with mathematical precision. If
this mode of collecting the medium of their different opinions was fraudulently abused by any
of the jury, by fixing on a sum intended to be extravagantly high or low, and which was not
given in good faith, it would, perhaps, justify our interference; but no such fraud appears, or
is to be presumed, in the present case. I do not, therefore, think that this mode of ascertaining
the average sum was, in itself, exceptionable, and if, when ascertained, it appeared to the jury
to be a reasonable sum, under all the circumstances of the case, connected with sentiments of
respect and conciliation for each other's opinions, I think it was not improper for them finally
to adopt that sum.
[Headnote 3]
The substance of the statement made by jury foreman Cohen which forms the basis for the
Morse affidavit, was by Cohen's oral testimony under oath developed in greater detail. From
this oral testimony it is apparent that the jurors did not agree in advance to be bound by the
average judgment of the jurors. In fact just the contrary appears. The first 5 or 6 times that an
average amount was determined some of the jurors would not agree to the result. When
$58,000 was computed, that figure was discussed and everybody agreed that they didn't
think this was too much or too little.
We are of the opinion that the situation presented in this case comes squarely within the
rule expressed in Lee v. Clute, supra. See also Southern Nevada Gold & Silver Min. Co. v.
Holmes Min. Co., 27 Nev. 107, 73 P. 759, 103 Am.St.Rep. 759 (concurring opinion).
[Headnote 4]
In concluding that the lower court acted properly in denying appellants' motion for a new
trial for the reasons stated, and that is the only error assigned on appeal, we do not in any way
imply that the Morse affidavit or the oral testimony of a juror properly can be received in
evidence to impeach the jury's verdict. The case of Southern Nevada Gold & Silver Min. Co.
v. Holmes Min. Co., supra, has settled the law in this state that such evidence is incompetent.
See also the later cases of Close v. Flanary, 77 Nev. 87, 360 P.2d 259; Pinana v. State, 76
Nev. 274, 352 P.2d 824; Priest v. Cafferata, 57 Nev. 153, 60 P.2d 220.
Judgment and order denying new trial affirmed.
Badt, C. J., concurs.
Thompson, J., concurring:
I join in the opinion of the court, but wish to add a comment. This case presents a head-on
collision between two common law rules, and we must choose which one is of the greater
significance in the administration of justice. We have heretofore recognized the rule which
condemns a civil damage verdict reached by means of the quotient process. Lee v. Clute, 10
Nev. 149; So. Nev. M. Co. v. Holmes M. Co., 27 Nev. 107, 73 P. 759. Also, we have
frequently announced and applied the rule, in civil and criminal cases, that a juror will not be
allowed to impeach the verdict returned. State v. Stewart, 9 Nev. 120; State v. Crutchley, 19
Nev. 368, 12 P. 113; So. Nev. M. Co. v. Holmes M. Co., supra; Priest v. Cafferata, 57 Nev.
153, 60 P.2d 220; State v. Lewis, 59 Nev. 262, 91 P.2d 820; Pinana v. State, 76 Nev. 274,
352 P.2d 824; Close v. Flanary, 77 Nev. 87, 360 P.2d 259. The reasons supporting each rule
are well known and need not be restated. It is apparent that in most cases a breach of the
doctrine condemning quotient damage verdicts can become known to a court only by
permitting a violation of the rule against verdict impeachment by jurors.
the doctrine condemning quotient damage verdicts can become known to a court only by
permitting a violation of the rule against verdict impeachment by jurors. It seems to me that
the rule against verdict impeachment is of more importance, and must win, when the two
principles come into conflict. This result does not render the rule against quotient damage
verdicts without meaning and substance. That rule may still properly be the basis for an
appropriate jury instruction, if requested by counsel.
____________
80 Nev. 23, 23 (1964) Department of Highways v. Campbell
THE STATE OF NEVADA, on Relation of Its Department of Highways, Appellant, v.
CECIL G. CAMPBELL and CHARLOTTE CAMPBELL, Husband and Wife, Respondents.
No. 4644
January 31, 1964 388 P.2d 733
Appeal from judgment of the Sixth Judicial District Court, Pershing County; Merwyn H.
Brown, Judge.
Condemnation case. The trial court rendered judgment for condemnees, and condemnor
appealed. The Supreme Court, Badt, C. J., held that awards which were within range of
testimony of condemnee and of condemnor's experts and which amounted to $6,499.76 for
taking of 43.12 acre parcel on highway, $5,795.50 for severing that property, and $65,003.55
for taking of land containing certain structures had substantial support in the evidence.
Affirmed.
Harvey Dickerson, Attorney General, Robert J. Potter, Deputy Attorney General, Eli
Grubic, Special Deputy Attorney General, for Appellant.
Goldwater, Taber and Hill, of Reno, for Respondents.
1. Eminent Domain.
Value before and after taking and severance damage from taking were fact questions.
2. Eminent Domain.
Awards which were within range of testimony of condemnee and of condemnor's experts and which
amounted to $6,499.76 for taking of 43.12 acre parcel on highway, $5,795.50 for severing that property,
and $65,003.55 for taking of land containing certain structures had substantial support in the evidence.
3. Evidence.
Condemnee, as owner, was competent to testify as to value of land taken and severance damages.
Court which sat without jury in case wherein its findings were based on substantial evidence other than
improperly admitted evidence presumably disregarded the improper evidence.
OPINION
This is an appeal taken by the State of Nevada on relation of its Department of Highways
from that part of the judgment entered by the district court assessing damages against
appellant for its condemnation of parcels of land known as 80-B and 80-C and for severance
of parcel 80-B. Our main concern is with appellant's contention that the trial court's award of
compensation to respondents lacks substantial support in the evidence. We have concluded
that this contention is without merit.
80-B is known as the Rye Patch Ranch. 80C is the parcel of land containing the
structures known as Humboldt House. The taking of 80B was a complete severance. The
parcels of land involved are situate along what was known as Highway 40 between the cities
of Lovelock and Winnemucca, in Pershing County, and had, before the taking, full access
rights to the highway. The parcels were taken by the Nevada Highway Department for the
purpose of constructing an interstate freeway, known as Interstate 80. Certain parts had been
theretofore subject to a right-of-way in the State. The particular taking and construction here
involved was part of a 13-mile project. The federal government required, in completing this
project, that the actual fee be acquired by the State and such was the purpose of the
condemnation suit.
completing this project, that the actual fee be acquired by the State and such was the purpose
of the condemnation suit.
Prior to the taking, all parcels here involved had complete access to Highway 40. Interstate
80 has now been completed and fenced off. The parcels involved no longer have access to
such highway.
The case was tried to the court without a jury in April, 1963, and submitted on written
briefs, whereupon the trial court filed a memorandum opinion in which it awarded the
respondents damages for the taking of their property as follows:
Parcel 80-A (not involved in this appeal).......................................................... $27.50
Parcel 80-B........................................................................................................ 6,499.76
Parcel 80-C........................................................................................................ 65,003.55
Severance damage from the taking of parcel 80-B and the
construction of the freeway, resulting to the remaining lands of
respondents' Rye Patch Ranch..........................................................
5,797.50
Formal findings followed, together with judgment of condemnation.
[Headnote 1]
The issues before the district court were to determine the value before the taking and the
value after the taking. Virginia & Truckee R. R. Co. v. Henry, 8 Nev. 165. The same applies
to the severance damage. These were questions of fact. Virginia & Truckee R. R. Co. v.
Henry, supra.
[Headnote 2]
Appellant's two professional witnesses consisted of Calven S. Aerick, its staff appraiser,
and Merton E. Domonoske, professional fee appraiser for appellant. Both of these
witnesses valued part of the land taken in parcel 80-B as adapted to commercial use and
therefore placed its worth at $150 per acre. Campbell was in agreement as to the acreage
valuation.
We refer briefly to the valuation placed by the respective witnesses on the parcels taken by
the State. As to parcel S0-B {a part of respondents' S,260-acre Rye Patch Ranch), 43.12
acres on the east side of the highway were taken.
parcel 80-B (a part of respondents' 8,260-acre Rye Patch Ranch), 43.12 acres on the east side
of the highway were taken. (Consideration need not be given to an additional 31.76 acres
comprising a 200-foot-wide easement for a right-of-way for existing Highway 40, already
owned by the State, as the additional vesting of the fee would be of minimal value.) Campbell
considered the entire 43.12 acres to have commercial value. Domonoske accorded
commercial value to 4 acres, Aerick to 6.5 acres. The court accepted Campbell's testimony,
awarding a total of $6,468.
1

The severance of parcel 80-B left 9.5 acres landlocked on the west side of the highway.
Aerick valued it at $9 per acre, Domonoske at $8.50 per acre (both characterizing it as
grazing land), and Campbell at $150 per acre, characterizing it as commercial.
As to the severance on the east side of the highway resulting from the severance of parcel
80-B, Aerick allotted a value of $2,500, Domonoske awarded it nothing, and Campbell
figured a loss of 48 acres at $137 per acre. The per acre figure he arrived at by reducing the
$150 per acre commercial value by $13 per acre grazing value, the value of the land after the
taking.
The west side severance and the east side severance produced, according to Campbell, a
loss of $7,837.50. The court awarded $5,797.50.
In valuing parcel 80-C, the Humboldt House itself, Aerick gave to the land involved $350
an acre; Domonoske, $250 an acre. To the improvements, Aerick accorded $38,620;
Domonoske, $33,175. As severance damage, Aerick found none; Domonoske, $4,386.
Campbell refused to particularize, but testified that Humboldt House had a value of $90,000.
2
The totals resulted as follows: By Aerick, $39,500; by Domonoske, $38,150; by Campbell,
$90,003.55; by the court $65,003.55.
____________________

1
Plus allowance of $31.76, the only additional damage for the taking of the underlying fee on 31.76 acres
over which the State had an existing easement for a right-of-way for Highway 40.

2
Plus allowance of $3.55, the only additional damage for the taking of the underlying fee on 3.55 acres over
which the State had an existing easement for a right-of-way for Highway 40.
Not only are there serious contradictions in the testimony of the State's two expert
witnesses, as noted above, which may indeed have influenced the court in its rejection of their
testimony, but they also differed in their approach or method of evaluation. Aerick testified,
Well, in appraising, our office used the three approaches to value: the market approach, the
cost approach, and the income approach. He then indicated that he considered the cost
approach as the final approach. This is determined by finding actual cost less depreciation.
The market approach was defined by the witness as finding sales of comparative properties,
and valuing the subject property by comparison. (Incidentally, we note here that this appears
to be precisely what the witness Campbell didfinding the most comparable sale to be of the
Buena Vista property and the conclusion that Humboldt House was worth twice Buena
Vista.) He then defined the income approach as the processing of income which the property
will earn by capitalization into a value which you can use. He said this method has
hazardous elements, but you use it to correlate the cost and the market approach.
He arrived, as above indicated, using his three methods of approach, at a total value,
including severance damages, of $39,500. In applying the compensation approach or income
approach he capitalized income at 9 percent per annum, being 7 percent income and 2 percent
return of capital. On cross-examination he testified that at 4 percent the value would be
capitalized at $69,850, but the witness stated, I would never use 4%. At 5 percent the value
would be capitalized at $55,880. (Later he corrected his figures to show that, capitalized at 4
percent, the value would appear to be $72,110, and, at 5 percent, $58,140.) This was his
testimony taken at the trial in April, 1962. In a preliminary statement made on March 19,
1961, the witness had indicated that for roadside commercial properties replacement cost less
depreciation, plus the land value, should be used. The witness then stated:
In order to in any way approximate a value indicated by the cost approach, the expected
return on the land and improvements would have to be cut to approximately five percent.
and improvements would have to be cut to approximately five percent. Due to the lack of
rents or leases on comparable roadside property, there was insufficient data to adequately
establish such a cap' rate. Thus it can be stated that it appears there is a market for such
roadside businesses and certain people will operate them usually on an owner-operator basis
taking less for their labor and investment but being certain of a regular income and reduced
living expenses.
The market approach was not used at all by the witness at that time.
Thus, appellant introduced the capitalization-of-income method into the case. Domonoske
did not use this approach at all. It will be noted that the capitalization approach, at 5 percent
or at 6 percent testified to by Aerick on cross-examination, closely approximates the value
found by the court.
In State v. Shaddock, 75 Nev. 392, 344 P.2d 191, after evidence that the condemned land
produced $3,600 a year in rentals and that just compensation would be a sum sufficient to
produce an income of $3,600 a year, this court held that it was proper to permit a witness to
testify relative to the value of an asset capable of producing such income and said: Such
evidence was given by an expert and was solely for the purpose of assisting the jury in
determining the value of this asset. Appellant's witnesses themselves capitalized the net
income in arriving at market value from the income approach, using a different capitalization
rate. It was within the province of the jury to decide what rate if any to use after considering
all of the evidence relating thereto and the reasons given for the various conclusions.
Campbell was a member of the Board of County Commissioners of Pershing County for
10 years. He was a director of the County Commissioner Association of the Western States
and for the past 2 years was president of that association. He testified that he was familiar
with land values in Pershing County; that he had made it a practice to study these land values
and he familiarized himself with land values in Pershing County through checking with the
owners and the sellers and talking to them and through conversations with the
purchasers, that he had an opinion as to the market value of Humboldt House, being
parcel S0-C involved in this proceeding.
County through checking with the owners and the sellers and talking to them and through
conversations with the purchasers, that he had an opinion as to the market value of Humboldt
House, being parcel 80-C involved in this proceeding. His opinion as to such market value
was $90,000
3
as indicated in the list above.
As a member of the Board of County Commissioners he was for 10 years a member of the
County Board of Equalization, which dealt directly and exclusively with land and other
values for purposes of taxation. NRS 361.340, 361.345.
As to the severed parcel of land on the west side of the highway comprising 9.5 acres, the
witness testified that it was completely isolated. It became of no use to him whatsoever. I
cannot get to it. There is no frontage road to it. I have no access to it after the freeway is put
in there. I cannot put water on it, livestock or anything else. I would have to trespass over
private-owned land to get to that area. * * * You cannot get to it from the freeway after it is
constructed * * *. You can only get off the freeway at two points, and then I would have to
trespass over private-owned land to go to that 8.41 acres.[
4
] I put a valuation on it of $150 an
acre, or a total valuation on the parcel of $1,261.50.
As to the damage resulting from the remaining land by the severance of the parcel just east
of the highway, he testified: The price I set on it is $6,576 and I will explain it in this way.
At $150 per acre, and there is approximately, taken from the maps as close as we can figure,
there is 7,100 feet of frontage. * * * So taking the frontage, the runs and parcel, and that is
Parcel 80-B on the east side and where it ends, figuring a depth of 400 feet which has
commercial value, and the highway is taking 100 feet off of that, approximately, leaving me
300 feet of what I call a business area, and commercial ground, and taking that and
multiplying that by the frontage and [arriving at] 48 acres plus in round figures, I figured 48
acres was left in that tract of ground.
____________________

3
See footnote 2, supra.

4
Early testimony identified the area as 8.41 acres, but it was later established that the area was 9.5 acres.
of ground. * * * That is took out of the commercial basis and put onto grazing ground. The
way I come to this figure is I took 48 acres times the prevailing price that I have used for my
grazing ground of $13 and subtracted it from the ground that I figured for the full 400 feet
and that gave me the figure of $6,576.
The original Humboldt House was adjacent to the yards of the Southern Pacific Company.
After Highway 40 was constructed, in 1926, Campbell, his father, and brothers razed the old
Humboldt House and moved up to the highway and it has been operated there ever since.
Mr. and Mrs. Campbell and their three children lived there, and operated a general
merchandise business, including a bar, service station and garage, grocery store, hardware.
Cabins and trailers were for rent. They served gold mining property in the vicinity. People
from every walk of life came back again and again to meet at Humboldt House. It had a good
firm tourist trade, and its reputation persisted after Highway 40 was put in. Many people
came there on account of its good water supply. They had a dug well that had never been
pumped dry, which filled a 4,000-gallon redwood tank to establish pressure.
On cross-examination, in response to the question, Will you tell us how you arrived at the
$90,000 figure [for parcel 80-C, Humboldt House]? the witness testified without objection,
I had a $100,000 offer in 1959 and a $65,000 offer in 1947. He testified by whom these
offers were made and then continued: And I have studied sales of real estate, places and
parts in Pershing County and that is how I set my figure on the worth of my buildings. * * * I
studied real estate values over a period of time and the different transactions, real estate, in
part, through Pershing County, and the acreage overand the businesses that were sold in
that county, and that is how I derived the figure on my house and place of business. Asked
for further details, he referred to the Buena Vista sale. It took place five times since the
original. It has sold for $45,000. I do not figure there is any comparison to mine, because that
place has no record [no such general reputation, and because of the better water supply at
Humboldt House]."
and because of the better water supply at Humboldt House]. He answered further detailed
questions on cross-examination as to the purchasers and sellers, etc.
Appellant insists that the awards made by the court are unsupported by any substantial
evidence. We are unable to agree with this contention.
Appellant's brief concludes: Appellant does not question the competency of an owner of
land to testify to its value, but believes that the credibility of such testimony should not
summarily equate with its competency. (Emphasis supplied.) But credibility by whom? In
oral argument appellant urged that Campbell's testimony was not entitled to any weight. But
this court has never looked at the scales over the trial judge's shoulder to determine whether
the fact finder correctly read the weight.
[Headnote 3]
The competency of respondent to testify, as admitted by appellant, was firmly established
in State ex rel. Dept. Highways v. Olsen, 76 Nev. 176, 351 P.2d 186. Appellant points out,
however, that in that case respondent had owned the property for 10 years, owned other
business properties in Reno and leased the same, was aware of market values of her own and
surrounding properties, and compared recent sales of nearby land. We have above outlined
Campbell's experience and background. It is entirely unnecessary for us to consider whether
he was better or less qualified to testify than Mrs. Olsen in State v. Olsen, supra. In short,
appellant's contention fails to recognize the function of this court. When it speaks of the
weight to be given to the testimony of certain witnesses, it can refer only to the weight to be
given to it by the trial court. When it states that credibility should or should not be accorded
to the testimony of a witness, it addresses itself to the credibility to be accorded by the trier of
the facts. There indeed may be certain exceptions which are not applicable here and which are
not necessary to discuss. The record discloses that the learned trial judge was alert to all of
the issues presented, to the contentions of the parties, and the testimony of the witnesses. In
State v. Pinson, 66 Nev.
227, 207 P.2d 1105, in which the condemnees appealed from an award which they considered
inadequate, this court said: We are, in effect, asked to say that the trial court was in error in
accepting the testimony of respondent's witnesses rather than the testimony of appellants and
their witnesses. This we cannot do. We have no difficulty in concluding that there was
substantial evidence to support the court's findings and judgment.
In United States v. Certain Lands, Etc., 3 Cir., 183 F.2d 320, United States Circuit Court
of Appeals remarked: Finally, it is difficult to see that clear error exists, for the evidence of
value was highly conflicting and the compensation awarded is within the range of evidence.
This court in Virginia & Truckee R. R. Co. v. Henry, 8 Nev. 165, in sustaining a
condemnation award having to do mainly with severance damage, said: The district court
saw that there was substantial testimony [in the report of the commissioners] to sustain the
award, and that all such said to have been omitted could not touch the issue. In that case the
court rejected the contention that the measure [of the damage] is filled by giving the private
person the market value of the land taken. The court held that the restriction of the
allowance to the naked market value of the property taken, would violate the constitutional
requirement for just compensation. The court further stated: It is difficult to imagine an
unjust compensation; but the word just' is used evidently to intensify the meaning of the
word compensation;' to convey the idea that the equivalent to be rendered for property taken
shall be real, substantial, full, ample; and no legislature can diminish by one jot the rotund
expression of the constitution. * * * [As to] the absolute protection of the individual by just
compensationthere has been, could be, no dispute.
[Headnote 4]
One additional error is asserted by appellant. Respondent was asked: How much would
you have to get from the property to support yourself and your family? Appellant objected,
citing 5 Nichols, Eminent Domain 19.3{1) and 1S Am.Jur.,
Appellant objected, citing 5 Nichols, Eminent Domain 19.3(1) and 18 Am.Jur., Eminent
Domain 345, to the effect that evidence of profits derived from a business conducted on the
property is too speculative, uncertain and remote to be considered as a basis for computing
market value in condemnation proceedings. This does indeed appear to be the rule. However,
this court has consistently held that where inadmissible evidence has been received by the
court, sitting without a jury, and there is other substantial evidence upon which the court
based its findings, the court will be presumed to have disregarded the improper evidence.
Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374 P.2d 684.
We find no error, and are of the opinion that the judgment should be sustained on the
authority of State ex rel. Dept. Highways v. Olsen, 76 Nev. 176, 351 P.2d 186.
Affirmed with costs.
McNamee and Thompson, JJ., concur.
____________
80 Nev. 33, 33 (1964) Toth v. Toth
JANE H. TOTH, Appellant and Cross-Respondent, v. FRANCIS A. TOTH,
Respondent and Cross-Appellant.
No. 4651
February 5, 1964 389 P.2d 73
Cross-appeals from an order of the Seventh Judicial District Court, White Pine County;
Jon R. Collins, Judge.
Proceeding upon divorced husband's motion to modify custody decree entered in divorce
action as to parties' three minor children. The trial court modified the former custody decree,
and divorced wife appealed. The divorced husband cross-appealed. The Supreme Court, Badt,
C. J., held that award of main custody to divorced father and of part time custody to divorced
mother was not an abuse of trial court's discretion.
Judgment and order affirmed.
80 Nev. 33, 34 (1964) Toth v. Toth
E. R. Miller, Jr., of Ely, for Jane H. Toth.
Gray and Horton, of Ely, for Francis A. Toth.
1. Divorce.
Modification of custody decree so that divorced father, instead of mother, would have custody, subject to
mother's right to custody during summer months, with father providing transportation costs and support
was not an abuse of discretion, where mother had, for about a year after the divorce, carried on an illicit
affair with another man. NRS 125.140, subds. 1, 2.
2. Divorce.
Award of part time custody of parties' minor children to divorced wife was not an abuse of trial court's
discretion, even though wife had, for about a year after divorce, carried on an illicit affair with another
man, where trial court did not consider it best for children's interests that they be deprived of mother's love,
care, and attention during the three summer months. NRS 125.140, subds. 1, 2.
OPINION
The sole question presented by these cross-appeals is whether the court below was guilty
of an abuse of discretion in modifying its former decree which awarded the custody of three
minor children to the mother. We have concluded that there was no abuse of discretion. The
parties will be referred to by their names.
On May 22, 1961, Jane obtained a default decree of divorce from Francis, in which decree
she was awarded full custody of the three minor children, then of the respective ages of 7
years, 5 years, and 2 months. On April 25, 1963, the court, upon motion of Francis to modify
the decree and pursuant to an extensive hearing on such motion and the introduction of oral
testimony and sundry depositions, made an order modifying the decree by awarding to
Francis, the father, custody of the three children during the 9 school months of each year and
awarding to the mother, Jane, their custody during the 3 summer-vacation months. As a
condition for the granting of Francis' motion, the court ordered that he pay $150 a month for
the support of the children while they were in the custody of the mother, that he pay the cost
of transportation of the children from Nevada to New Jersey, and likewise from New Jersey
to Nevada, in compliance with the court's order, and that he post a bond in the sum of
$1,000 for each child, conditioned upon the performance by him of these requirements.
80 Nev. 33, 35 (1964) Toth v. Toth
children from Nevada to New Jersey, and likewise from New Jersey to Nevada, in
compliance with the court's order, and that he post a bond in the sum of $1,000 for each child,
conditioned upon the performance by him of these requirements. The order provided that it
go into effect commencing with the fall school term in 1963. It further restrained Jane from
removing the children from the jurisdiction of the court and ordered her to deliver the
children to the father 1 week before school starts in the fall of each year in the State of New
Jersey, commencing with the fall of 1963.
On May 24, 1963, Jane appealed from the order modifying the decree as to custody, and 3
days later Francis appealed from the order insofar as it refused to award him full custody.
Jane specifies as error (1) that the court abused its discretion in making the order changing
custody in view of a finding by the court that the mother's affairs with the man whom she
expected to marry did not appear to have affected the children; (2) that the court abused its
discretion in making the change of custody from the mother in Nevada to the father in New
Jersey on the ground that the children in New Jersey would have an opportunity for better
housing and better all-around circumstances than available in Ely, Nevada; (3) that, based
upon the implied finding that the mother was a fit person to have custody for 3 months of
each year, it was an abuse of discretion to change the custody from her to the father for 9
months of each year.
Francis specifies simply: (1) that the court erred in awarding part-time custody to Jane; and
(2) that it erred in not awarding full-time custody to Francis.
1
It is clear that the court
based its order upon the undenied showing that for about a year after the divorce Jane
carried on an illicit affair with another man.

____________________

1
The power of the district court is found in the provisions of NRS 125.140, which reads:
1. The court, in granting a divorce, shall make such disposition of, and provision for, the children,
as shall appear most expedient under all the circumstances, and most for the present comfort and future
well-being of such children.
2. In actions for divorce the court may, during the pendency of the action, or at the final hearing or
at any time thereafter during the minority of any of the children of the marriage, make such order for the
custody, care, education, maintenance and support of such minor children as may seem necessary or
proper, and may at any time modify or vacate the same.
80 Nev. 33, 36 (1964) Toth v. Toth
It is clear that the court based its order upon the undenied showing that for about a year
after the divorce Jane carried on an illicit affair with another man. She had sexual relations
with him approximately once a week, generally on Saturday nights. She also had dates with
some six other men, although she denies having had sexual relations with any of these others.
The evidence is in dispute whether such relations were had with one of these other men. In
frankly admitting her relations with the one man for almost a year, she justifies this by the
statement that they each had affection for the other and had contemplated being married, and
that when they had finally concluded that there were obstacles against a successful marriage,
they had entirely ceased their relations. Although witnesses testified in general to her good
character and her care and schooling of the children, she admitted to indulgence in
intoxicating liquors, but maintained that only on one occasion was she drunk.
In Jane's opening brief, her attorney frankly states:
Both parties obviously love their children. The husband is well fixed financially. He has a
large home, a successful business and owns considerable property in New Jersey. C. E.
Horton, Mr. Toth's attorney, flew from Ely to New Jersey and obtained the depositions of
numerous persons who knew Mr. Toth, all of whom testified as to his excellent character,
particularly with regard to his religious preoccupation.
In this connection the court said in its decision: The mother will be granted custody of the
children during the summer portion of each year. The placement of the children is in the
father's custody, however, and the Court finds that is in the best interest of the children that
they be permitted to go to school in New Jersey, where they have an opportunity for better
housing and better all around circumstances than is available in Ely, Nevada. I do not want to
deprive the mother of her interest in the children. However, Mrs. Toth, the Court tells you
point-blank, unless your conduct improves then certainly further consideration might well be
given to modifying this order further. Because I simply cannot approve of your conduct up to
this point; there is no way I can do it, nor any other Court.
80 Nev. 33, 37 (1964) Toth v. Toth
way I can do it, nor any other Court. It does not appear to have affected the children up to this
point. It has had some effect, but no severe effect up to this point. I do not feel the immediate
best interests of the children is served by uprooting them from their present circumstances
provided, of course, Mrs. Toth, your conduct is such that the children are not harmed further
as by the past activities on your part as have been testified by you. The modified Decree, so
far as the custody of the children is concerned, is conditioned upon these circumstances.
The court emphasized its realization that its one obligation was to make such order as was
in the best interests of the children. It recited that it could not condone the plaintiff's conduct;
that a stamp of society's approval could not attach to such conduct; that it was both unlawful
and immoral.
As to the effect of Jane's conduct upon the children, the court stated: I am frankly grateful
from a humanitarian point of view that [the children] are no more affected than they are. The
court's reference appeared to result from Jane's testimony that the children slept in their
bedroom upstairs while their mother's illicit relations were going on in the living room
downstairs and that the children never observed anything wrong going on. This, however,
was brought into dispute by the statement of one of the daughters that Mom was wiggling on
the couch with a man. Jane's defense as to this item is that this man escorted her home from
a night club, that he had been drinking too much, that he had made improper advances, and
that she was repelling such advances, that all this made quite a bit of noise, and awakened one
of the girls who came downstairs and made the observation.
[Headnote 1]
Under the circumstances we are unable to find an abuse of discretion in the order of court
modifying the former decree of custody and awarding the main custody to the father, subject
to the right in the mother to have custody during the summer months, with the accompanying
provisions for the transportation costs and support by the father.
80 Nev. 33, 38 (1964) Toth v. Toth
support by the father. Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278. In Cosner this court,
after holding that there was evidence to support the determination that it was for the best
interests of the children that their custody be awarded partially to the father and partially to
the mother, said: In any event there is a presumption on appeal in child custody matters that
the trial court has properly exercised its judicial discretion in determining what is for the best
interest of the child. Cf. Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98.
[Headnote 2]
As to the father's cross-appeal, the court made it clear that it did not consider it best for the
interests of the children that they be deprived of their mother's love, care, and attention during
3 months of the year. At the same time the court admonished the mother that a persistence on
her part of improper conduct might induce the court to modify further the terms of the
original decree. In awarding such part-time custody to the wife, we likewise find no abuse of
the court's discretion.
The order changing custody is in all respects affirmed. No costs are awarded.
Let remittitur issue forthwith.
____________
80 Nev. 39, 39 (1964) Coray v. Hom
OSCAR CORAY and LEONA F. CORAY, Appellants, v. BEN HOM and IDA HOM, BILL
YOUNG YEE and SARAH JANE YEE, EROS C. ZOTALIS and ESTHER H. ZOTALIS,
EDWARD S. GAWLIK and JESSLYN E. GAWLIK, and SUE YEE,
as Individuals and B & B Company, a Copartnership, Respondents.
No. 4659
February 5, 1964 389 P.2d 76
Appeal from a judgment of the First Judicial District Court, Douglas County; Frank B.
Gregory, Judge.
Action to compel buyers to specifically perform. After both sides had put in their
cases-in-chief, the trial court rendered summary judgment for defendants and plaintiffs
appealed. The Supreme Court, Thompson, J., held that as statute of frauds was not in issue
since it had not been pleaded affirmatively but was attempted to be injected by summary
judgment motion erroneously made at close of plaintiffs' case-in-chief, court should not have
decided case on basis of summary judgment motion after both sides had put in their
cases-in-chief, but case had become one of conflicting evidence and should have been
determined on that basis.
Reversed and remanded.
John Tom Ross and Theodore H. Stokes, of Carson City, for Appellants.
William J. Crowell, of Carson City, and Francis B. Dillon, of Sacramento, California, for
Respondents.
1. Frauds, Statute of.
Failure to plead statute of frauds affirmatively constituted waiver of defense. NRCP 12(b, h), 56(b).
2. Judgment.
Summary judgment procedure was not available at close of plaintiffs' case-in-chief. NRCP 56(b).
3. Judgment.
Summary judgment procedure is to be utilized before trial, not during or after trial.
4. Judgment.
As statute of frauds was not in issue since it had not been pleaded affirmatively but was attempted to be
injected by summary judgment motion erroneously made at close of plaintiffs' case-in-chief, court
should not have decided case on basis of summary judgment motion after both sides
had put in their cases-in-chief, but case had become one of conflicting evidence and
should have been determined on that basis.
80 Nev. 39, 40 (1964) Coray v. Hom
case-in-chief, court should not have decided case on basis of summary judgment motion after both sides
had put in their cases-in-chief, but case had become one of conflicting evidence and should have been
determined on that basis.
5. Principal and Agent.
Testimony of asserted agent as to his authority in consummating, contract of sale was competent.
OPINION
This is an action by the sellers of real property (the Corays) to compel the alleged buyers
(Hom and others) to specifically perform their contract to purchase, or, in the alternative, to
pay damages. The buyers won in the trial court and the sellers appeal.
[Headnotes 1-5]
The case is loaded with procedural blunders. Halfway through the trial the buyers decided
to rely upon the statute of frauds as a defense to the sellers' claim for relief. Their pleadings
did not mention the statute. Having failed to plead the statute of frauds as an affirmative
defense as required by NRCP 8(c), they sought to introduce it by way of a motion for
summary judgment at the close of the sellers' case-in-chief. Of course, their failure to plead it
affirmatively constituted a waiver. NRCP 12(b) (h); Chisholm v. Redfield, 75 Nev. 502, 347
P.2d 523. Nor was the summary judgment procedure available at that juncture. That
procedure is to be utilized before trial, not during, or after trial.
1
Its purpose is to avoid a
needless trial when an appropriate showing is made in advance that there is no genuine issue
of fact to be tried, and the movant is entitled to judgment as a matter of law.
____________________

1
The buyers seize upon three words at any time as used in NRCP 56(b) to justify their late motion. Both
the purpose of the summary judgment procedure and a careful reading of the entire rule make it evident that
those three words mean at any time before trial. Other motions are available during trial, and following trial.
80 Nev. 39, 41 (1964) Coray v. Hom
a matter of law. Instead of denying that motion as unauthorized, the court listened to
arguments, and reserved ruling; whereupon the buyers (defendants) put on their case-in-chief.
Approximately 7 months later, the case was reopened to permit the sellers (plaintiffs) to
introduce further evidence, after which the matter was submitted to the court for decision.
More than a year passed before the court ruled. Instead of deciding the case on the merits, it
granted the buyers' motion for summary judgment. This should not have been done. As the
statute of frauds was not an issue for the reasons already mentioned (and we intimate no view
as to whether that defense would have been good had it been properly advanced), the case
became one of conflicting evidence concerning the scope of authority, if any at all, granted to
a Mr. Cutler, to act as the agent for the buyers in consummating the contract of sale.
2
Cutler
testified (somewhat ambiguously) that he had such authority. This testimony was competent.
Schlitz Brewing Co. v. Grimmon, 28 Nev. 235, 250, 81 P. 43, 46. Mr. Hom, one of the
alleged buyers and principals, stated unequivocally that Cutler was not authorized to purchase
the property for him. The other alleged buyers did not testify. Diverse inferences could be
drawn from the documentary evidence produced. On this record, we must reverse the
summary judgment, and remand the case with the direction to decide it on the merits without
any consideration being accorded the purported defense of the statute of frauds which was
waived before the trial started. It is so ordered.
____________________

2
The documents relied on by the sellers to show the contract (escrow instructions and deposit receipt) were
signed by the sellers, and by Cutler, purporting to act as agent for the buyers. No written proof of his agency was
produced.
____________
80 Nev. 42, 42 (1964) Dotson v. State
JOHN L. DOTSON, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 4661
THE STATE OF NEVADA, Appellant, v. JOHN L.
DOTSON, Respondent.
No. 4687
February 5, 1964 389 P.2d 77
Appeals from the Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
Defendant was convicted of carrying a concealed weapon, and from the judgment of the
trial court the defendant appealed, and from an order striking habitual criminal charge, the
State appealed. The Supreme Court, McNamee, J., held, inter alia, that switchblade knife and
dress suit and overcoat that defendant was wearing at time of arrest were properly admitted in
rebuttal to statements of defendant that knife was his hunting knife, and that action of court in
striking the prior conviction charge was within power granted by statute.
Judgment affirmed in Appeal No. 4661. The order striking the habitual criminal
charge in Appeal No. 4687 is affirmed. Remanded with directions.
Earl M. Hill, of Reno, for John L. Dotson.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Herbert F.
Ahlswede, Deputy District Attorney, Washoe County, for The State of Nevada.
1. Indictment and Information; Judges.
Defendant charged with carrying a concealed weapon was not denied a fair trial on grounds that
information contained allegations of three prior convictions and that trial judge was prejudicial by
admitting certain exhibits where jury had never been advised of prior convictions, trial judge would have
no discretion in rendering sentence on primary offense, and admissibility of exhibits was a question of law
which was a subject of review. NRS 202.350, 267.010. subd. 3.
2. Criminal Law.
Prior conviction statute, under which punishment for a given conviction is increased if record shows a
prior conviction, is not unconstitutional on ground that allegations of prior convictions prevent an accused
from having a fair trial for primary offense charged. NRS 207.010.
3. Arrest.
If an arresting officer has reasonable cause to believe that felony is about to be committed an arrest
without a warrant to prevent the commission of a felony is proper.
4. Arrest; Criminal Law.
A search of person arrested because about to commit a felony is reasonably necessary to arresting
officer's safety, and articles which otherwise would be admissible as evidence, seized as a result of such
search, cannot be rejected as evidence on ground of unreasonable search and seizure.
5. Criminal Law.
In prosecution for carrying a concealed weapon, switchblade knife and dress suit and overcoat that
defendant was wearing at time of arrest were properly admitted in rebuttal to statements of defendant that
knife was his hunting knife.
6. Criminal Law.
Defendant could not object to State's attorney's argument opining that defendant was guilty where no
objection to such statement was made in lower court.
7. Criminal Law.
Statement by State's attorney that defendant's counsel had resorted to trickery during trial did not present
error where objection to statement was sustained and court ordered remarks stricken and admonished to
disregard them.
8. Criminal Law.
Remarks of State's attorney did not prejudice defendant where objections were sustained and remarks
stricken and jury was admonished to disregard them.
9. Criminal law; Indictment and Information.
The action of court in striking from information all reference to three prior convictions was within power
granted by statute, but because trial court did not give reasons for dismissal cause would be remanded with
directions that trial court enter into minutes its reasons for such dismissal. NRS 178.510, 207.010.
OPINION
On December 8, 1962 defendant and two other men were arrested in the men's room of a
bar in Reno while they were holding a fourth man on the floor, striking him and ostensibly
robbing him. Defendant was taken to the alley and searched, and during the search a
switchblade knife was found in his overcoat pocket. Defendant was first charged with
disorderly conduct. This charge was dismissed. Defendant was then charged with carrying a
concealed weapon and, under NRS 207.010, with being an habitual criminal, in that he had
been three times convicted elsewhere of crimes which under the laws of Nevada amount
to felonies.
being an habitual criminal, in that he had been three times convicted elsewhere of crimes
which under the laws of Nevada amount to felonies. Defendant was found guilty by jury
verdict of carrying a concealed weapon, a felony. At the time for sentencing, the lower court,
without giving the State an opportunity to be heard or present evidence concerning the prior
convictions, ordered stricken from the information the allegations regarding the three prior
convictions and rendered judgment sentencing respondent to a term of not less than one nor
more than five years, which is the statutory sentence for carrying a concealed weapon. The
statutory sentence under the habitual criminal statute is life imprisonment.
Appeal No. 4661
This is an appeal by the defendant from said judgment.
[Headnote 1]
Defendant's first assignment of error is that he could not have a fair trial because the
information contained allegations of his three prior convictions. Although these allegations
were never read to the jury, defendant nevertheless maintains that they were within the
knowledge of the trial judge and that prevented him from having a fair trial. In this
connection he personally moved the court for a change of venue before the selection of a jury
on the ground that the information contained these allegations of former convictions. The
motion was denied. On appeal, his counsel maintains that although the defendant called his
motion a motion for change of venue, in legal effect it was a motion to disqualify the judge
for bias and prejudice. It was the jury who determined the issues of fact. Such determination
resulted in the verdict that defendant was guilty of carrying a concealed weapon. The jury had
never been advised of the defendant's prior convictions.
1
Under our statutes the trial judge
would have no discretion in the rendition of judgment upon such a verdict.
____________________

1
Subsection 3 of NRS 207.010 provides: In proceedings under this section, each previous conviction shall
be alleged in the accusatory pleading charging the primary offense, but no such conviction may be alluded to on
trial of the primary offense, nor may any allegation of such conviction be read in the presence of a jury trying
such offense.
trial judge would have no discretion in the rendition of judgment upon such a verdict. NRS
202.350 provides that any person convicted of carrying a concealed weapon shall be
punished by imprisonment in the state prison for not less than one year nor more than five
years. Defendant's counsel nevertheless argues that the trial judge showed his bias by the
admission in evidence of certain exhibits hereinafter described.
2
In allowing the admission
of these exhibits the trial judge was determining matters of law rather than facts, and his
action in this regard is a subject of review herein. Counsel has not otherwise pointed out any
other action of the trial judge that might suggest bias. The record in fact suggests otherwise.
Consequently the contention that the trial judge was biased and prejudiced against the
defendant is rejected.
[Headnote 2]
Defendant attacks the constitutionality of NRS 207.010, on the ground that the allegations
of prior convictions in themselves prevent an accused from having a fair trial for the primary
offense charged. This contention is without merit. People v. Maddox, 75 Cal.App.2d 478, 171
P.2d 561. Defendant's counsel admits that decisions contrary to Maddox represent the
minority view.
[Headnotes 3-5]
Defendant next objects to the admission into evidence of the switchblade knife and of
articles of his clothing. He claims that the switchblade knife and the clothing were obtained
through an illegal search and seizure. The law is clear that if an arresting officer has
reasonable cause to believe that a felony is about to be committed, an arrest without a warrant
to prevent the commission of the felony is proper. A search of the person so arrested is
reasonably necessary to the arresting officer's safety, and articles which otherwise would be
admissible as evidence, seized as a result of such a search, are not to be rejected as evidence
on the ground of unreasonable search and seizure. Snow v. State, 234 Ind. 234, 125 N.E.
____________________

2
Defendant's counsel concedes however that if the exhibits were properly received in evidence then I have
no basis upon which to proceed.
2d 802; cf. Wyatt v. State 77 Nev. 490, 367 P.2d 104. The articles of clothing, consisting of
the dress suit and the overcoat that defendant was wearing at the time of his arrest, were
properly received in evidence in rebuttal to the statements of defendant that the knife was his
hunting knife.
[Headnotes 6-8]
Other assignments of error by the defendant on appeal relate to the State's attorney in his
argument: (1) opining that the defendant is guiltyno objection to this statement was made
in the lower court; (2) stating that defendant's counsel had resorted to trickery during the
trialdefendant's objection to the statement was sustained and the court ordered the remarks
stricken and admonished the jury to disregard them; and (3) representing to the jury that
defendant had been charged with the crime other than disturbing the peace
3
defendant's
objection thereto was sustained, the remarks stricken, and the jury admonished. Under the
circumstances we do not believe that any of these remarks by the prosecuting attorney
prejudiced the defendant in respect to a substantial right.
Affirmed.
Appeal No. 4687
This appeal is by the State from the judgment and from the order of the court striking from
the information all reference to the three prior convictions.
Subsection 2 of NRS 207.010 provides in part: Every person convicted in this state * * *
of any felony, who shall previously have been three times convicted, whether in this state or
elsewhere, of any crime which under the laws of this state would amount to a felony * * *
shall be punished by imprisonment in the state prison for life.
The State argues that under this statute, upon defendant's conviction of the charge of
carrying a concealed weapon, a felony, the imposition of a life sentence is mandatory.
It is apparent from the statute that the use of the word "shall" would compel a court to
give the life sentence upon a felony conviction followed by proof of the three prior
felonies alleged.
____________________

3
One of the defendant's witnesses so testified.
word shall would compel a court to give the life sentence upon a felony conviction
followed by proof of the three prior felonies alleged. We are not faced with that situation
here. No proof of the prior convictions was made, and the court on its own motion ordered
stricken from the information all reference thereto, prior to the rendition of sentence. The
resulting sentence was proper under these circumstances. The wrong, if any, was the striking
of the prior convictions.
NRS 178.510 provides: The court may, either of its own motion or upon the application
of the district attorney, and in furtherance of justice, order any action after indictment found
or information filed to be dismissed; but in such cases the reasons of the dismissal shall be set
forth in the order, which must be entered on the minutes.
Under a similar statute, California has held that the power to dismiss the proceeding as to a
prior conviction is within the power referred to therein. People v. Burke, 47 Cal.2d 45, 301
P.2d 241. Although that case concerned prior narcotic convictions, the same reasoning
applies to prior felony convictions. In that case, as here, the State did not object to the striking
of the charge of prior conviction, and that court held that such failure to object amounted to
assent to the ruling. See also People v. Harris, 146 Cal.App.2d 142, 304 P.2d 178.
[Headnote 9]
We hold that the action of the court in striking the prior convictions was within the power
granted by NRS 178.510. That section however permits such action in furtherance of
justice and requires: the reasons of the dismissal shall be set forth in the order which must
be entered on the minutes. The minutes fail to disclose that the trial judge gave any reasons
for his action. A possible reason however appears from the information itself, which discloses
that of the alleged prior convictions one occurred September 25, 1922, one September 3,
1930, and one October 2, 1948. Discussions concerning the striking of prior convictions
appear in 33 Cal.St.B.J. 378 and 33 Cal.St.B.J. 556.
The order striking reference to prior convictions is affirmed.
affirmed. The cause however is remanded with directions that the trial court enter in the
minutes its reasons for the dismissal, pursuant to NRS 178.510. This affirmance is without
prejudice to the State's right to appeal in the event the reasons stated for the dismissal are
legally insufficient.
Badt, C. J., and Thompson, J., concur.
____________
80 Nev. 48, 48 (1964) Landmark Plaza, Inc. v. Deligatti
LANDMARK PLAZA, INC., Appellant, v. RALPH DELIGATTI,
dba COZY NOOK RESTAURANT, Respondent.
No. 4695
February 7, 1964 389 P.2d 81
Appeal from a judgment of the Eighth Judicial District Court, Clark County; John F.
Sexton, Judge. On motion to dismiss appeal.
Proceeding to dismiss appeal from judgment of the trial court. The Supreme Court held
that failure to serve designation of contents of record on appeal on respondent was prejudicial
to respondent and would warrant dismissal of appeal, where respondent was thereby
precluded from requesting additional portions of the record.
Motion granted and appeal dismissed.
John G. Spann, of Las Vegas, for Appellant.
John Manzonie, of Las Vegas, for Respondent.
1. New Trial.
Service of motion for new trial less than 10 days after service of written notice of entry of judgment was
timely. NRCP 59(b).
Notice of appeal served and filed within 30 days from denial of motion for new trial was timely. NRCP
73(a).
Trial court's reconsideration of motion for new trial and denial of motion after notice of appeal from
judgment and denial of new trial had been served did not extend time within which to docket record on
appeal. NRCP 73(g).
Filing of second notice of appeal after trial court had reconsidered motion for new trial and denied
motion did not extend time for docketing the appeal. NRCP 73(g).
District court lost jurisdiction to extend time for docketing record on appeal in Supreme Court by not
having done so within 40 days from the date of filing of notice of appeal. NRCP 73(g).
Absence of showing of excusable neglect concerning failure to timely docket record on appeal
empowered Supreme Court to dismiss appeal. NRCP 73(g).
Failure to serve designation of contents of record on appeal on respondent was prejudicial to respondent
and would warrant dismissal of appeal, where respondent was thereby precluded from requesting additional
portions of record. NRCP 75(a).
OPINION
Per Curiam:
Respondent has moved this court to dismiss the appeal herein on several grounds relating
to untimely action taken by appellant in perfecting its appeal and for appellant's failure to
perform certain acts required by rules of procedure. A chronology of events is as follows:
April 19, 1963Judgment for defendant-respondent.
May 3, 1963Notice of entry of judgment served and filed.
May 6, 1963Motion for new trial served and filed.
June 10, 1963Order refusing new trial.
July 9, 1963Notice of appeal from the judgment and the order refusing a new trial
served and filed.
July 17, 1963Appellant permitted to reargue the motion for new trial and the motion
was again denied.
July 29, 1963A second notice of appeal from the judgment and the order of July 17,
1963 denying the motion for new trial was served and filed.
September 6, 1963Order by district court extending time until October 7, 1963 for filing
record on appeal in supreme court.
October 4, 1963Designation of contents of record on appeal filed but never served on
defendant-respondent.
October 9, 1963Order by a member of the supreme court granting an additional period
of 15 days within which to file the record on appeal.
October 22, 1963Undertaking on appeal filed.
October 24, 1963Record on appeal docketed in this court.
[Headnote 1]
The service of the motion for new trial was timely, having been made on May 6, 1963, less
than 10 days after service of written notice of the entry of judgment. NRCP 59(b).
[Headnote 2]
The July 9, 1963 notice of appeal was timely, because it was served and filed within 30
days from the denial of the motion for new trial. NRCP 73(a).
[Headnote 3]
The action of the trial court in reconsidering the motion for new trial and again denying the
motion after a notice of appeal from the judgment and the denial of a new trial had been
served does not extend the time within which to docket the record on appeal.
[Headnote 4]
Under NRCP 73(g) appellant was allowed 40 days from July 9, 1963, the date of the filing
of the notice of appeal, within which to docket the record on appeal in this court. The filing of
the second notice of appeal on July 29, 1963 after the trial court reconsidered the motion for
new trial and denied the same did not extend the time for docketing the appeal. Consequently,
the last day for docketing the appeal, in the absence of an extension of time, would have been
August 18, 1963. Rule 73(g) provides: In all cases the district court in its discretion and with
or without motion or notice may extend the time for filing the record on appeal and docketing
the appeal, if its order for extension is made before the expiration of the [40-day] period.
The district court, after the expiration of this period and on September 6, 1963, made its first
order extending until October 7, 1963 the time for docketing the appeal.
[Headnotes 5, 6]
Under 73(g) the district court was empowered within the 40-day period to extend the time
to not more than 90 days from the date of filing the first notice of appeal. Under this
provision the district court could have extended the time to October 7, 1963, but not having
done so within the 40-day period the lower court lost jurisdiction to extend the time. It is to
be noted that the appellant took the full 30 days within which to file the original notice of
appeal; and that the last day for docketing the appeal, under the circumstances, without any
proper extension thereof was August 18, 1963. The order by a member of this court of
October 9, 1963 granting an additional period of 15 days within which to file the record on
appeal was intended to extend the period for 15 days from and after October 7, 1963, the
extension which the district court had given in its order of September 6, 1963, and was made
without the knowledge that the district court had lost jurisdiction to extend the time to
October 7, 1963. The record on appeal however was not docketed until October 24, 1963.
Only then could this court become familiar with the status of the record. The absence of a
showing of excusable neglect empowers this court to dismiss the appeal. State ex rel.
Department of Highways v. Roman Catholic Bishop, 80 Nev. 1, 388 P.2d 202; Doolittle v.
Doolittle, 70 Nev. 163, 262 P.2d 955.
NRCP 73(c) provides that a bond for costs on appeal shall be filed with the notice of
appeal. From the chronology above, the notice of appeal was filed July 9, 1963, and the
undertaking or bond on appeal was not filed until October 22, 1963.
[Headnote 7]
NRCP 75(a) provides that promptly after an appeal is taken, the appellant shall serve upon
the respondent and file with the district court a designation of the contents of the record on
appeal. The appeal was taken July 9, 1963. The designation of the record on appeal was not
filed until October 4, 1963 and was never served upon respondent. Respondent thereby was
denied the right to designate additional portions of the record to be included in the record
on appeal.
designate additional portions of the record to be included in the record on appeal. The July 9,
1963 notice of appeal is absent from the record on appeal; only the July 29, 1963 notice of
appeal appears in the record. The designation specified notice of appeal without stating
which notice. The failure to serve the designation of the record on appeal upon respondent
precluded him from requesting additional portions of the record and, under the circumstances,
respondent has been prejudiced thereby. Under the decisions of Dreyer v. Dreyer, 74 Nev.
167, 325 P.2d 705, and Basic Refractories v. Bright, 71 Nev. 248, 286 P.2d 747, dismissal of
the appeal is proper where the designation is not served upon the respondent, and there is a
showing that the respondent has been prejudiced thereby.
There is no showing of any excusable neglect in the failure of the appellant to comply with
the provisions of the Nevada Rules of Civil Procedure.
Motion to dismiss granted and appeal dismissed.
____________
80 Nev. 52, 52 (1964) Clark v. Clark
EDWARD JOHN CLARK, Appellant, v. MARY H.
CLARK, Respondent.
No. 4649
February 11, 1964 389 P.2d 69
Appeal from summary judgment of the Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Divorce action. From a summary judgment of the trial court in favor of defendant, the
plaintiff appealed. The Supreme Court, Thompson, J., held, inter alia, that although wife had
obtained a default decree in Florida for separate maintenance on ground of husband's cruelty,
neither res judicata nor collateral estoppel precluded husband's prosecution of divorce action
in Nevada on ground of wife's extreme cruelty, and should wife elect to counterclaim for
divorce or separate maintenance, alleging husband's cruelty as a ground, then full credit
would be given to Florida decree on that issue, and trial court would then be called upon to
exercise discretion granted it by comparative rectitude statute.
80 Nev. 52, 53 (1964) Clark v. Clark
and trial court would then be called upon to exercise discretion granted it by comparative
rectitude statute.
Summary judgment reversed.
Bible, McDonald & Carano, of Reno, for Appellant.
Stewart, Horton & McCune, of Reno, for Respondent.
1. Judgment.
The doctrine of res judicata is properly limited to situation where there is a bar to or a merger of former
cause of action, and the doctrine precludes parties from relitigating what is substantially the same cause of
action.
2. Judgment.
Collateral estoppel or estoppel by record may apply even though causes of action are substantially
different, if the same fact issue is presented, and as distinguished from res judicata, it is the record of
former case rather than the judgment that stands as a barrier to relitigation.
3. Judgment.
Collateral estoppel doctrine is, in a sense, broader than the bar aspects of res judicata, but restriction of
collateral estoppel to issues actually litigated and necessarily determined in first action may circumscribe
operation of that doctrine more closely than the bar of res judicata which may affect matters which could
have been litigated.
4. Judgment.
A final judgment or decree of a sister state, when rendered by a court of competent jurisdiction, acquires
constitutional stature under the full faith and credit clause. U.S.C.A.Const. art. 4, 1.
5. Judgment.
The constitutional command of full faith and credit does not pose a choice of law problem, but rather the
mandate of full faith and credit to judgments is limited to their effect as res judicata and should not be
extended to include questions of choice of law which may later arise. U.S.C.A.Const. art. 4, 1.
6. Judgment.
In determining whether Florida decree of separate maintenance granted to wife on ground of husband's
cruelty barred husband's Nevada divorce action on ground of wife's cruelty, Nevada court would not be
governed by Florida law of res judicata or estoppel, or by effect of those doctrines upon husband's ability
to procure a divorce in Florida, but would follow Nevada law as to scope of doctrines of res judicata and
estoppel. U.S.C.A.Const. art. 4, 1.
7. Husband and Wife.
Where defense of recrimination is not asserted in separate maintenance suit no fact issue is drawn
regarding plaintiff's conduct so that entry of default decree will not support any inference that plaintiff was
without fault.
80 Nev. 52, 54 (1964) Clark v. Clark
8. Judgment.
Even if Florida default decree for separate maintenance determined that wife was without fault, such
determination would relate only to conduct occurring before that suit was started and would not preclude
husband from proceeding in Nevada for divorce if he could show that she was guilty of extreme cruelty
subsequent to date of the Florida decree.
9. Judgment.
Although wife had obtained a default decree in Florida for separate maintenance on ground of husband's
cruelty, neither res judicata nor collateral estoppel precluded husband's prosecution of divorce action in
Nevada on ground of wife's extreme cruelty. NRS 125.120; U.S.C.A.Const. art. 4 1.
10. Judgment.
Husband's action for divorce on ground of wife's extreme cruelty was not barred on ground that his cause
of action could have been litigated in Florida where wife had obtained default decree for separate
maintenance.
11. Courts; Set-Off and Counterclaim.
The compulsory counterclaim rule of Florida is merely a rule of procedure without extraterritorial
significance.
Even though a defendant in separate maintenance suit has not asked for divorce by way of cross
complaint, he should not be barred from maintaining suit for divorce at a later date.
13. Marriage.
The policy of the law is to support and maintain marital status wherever it is reasonable to do so in the
circumstances.
OPINION
The appeal is from a summary judgment in favor of a defendant wife in a divorce action. A
final foreign decree of separate maintenance was deemed by the trial court to bar the plaintiff
husband from proceeding further.
On April 28, 1961, in Florida, the wife sued the husband for separate maintenance,
alleging extreme cruelty. Process was personally served on him in that state. He failed to
appear. On August 9, 1961 his default was noted, and a decree pro confesso entered. That
decree ordered, that the bill of complaint herein be, and the same hereby is taken as
confessed by the said defendant Edward John Clark and that this cause shall proceed ex parte
and decree rendered by the court according to law."
80 Nev. 52, 55 (1964) Clark v. Clark
according to law. Thereafter that case was dormant until January 10, 1963, at which time the
wife did proceed ex parte to obtain a final decree of separate maintenance. Meanwhile, the
husband had left Florida and come to Nevada. On December 28, 1962, he commenced an
action for divorce in this State, charging his wife with extreme cruelty. The wife answered,
pleading the Florida decree in bar. She did not counterclaim for affirmative relief. Later she
moved for summary judgment, supporting her motion with an authenticated copy of the
record of the Florida case. The husband presented nothing in opposition to that motion,
choosing to stand upon his verified complaint.
The thrust of the husband's claim for a reversal of the judgment is that the cause of action
alleged in this case (the wife's extreme cruelty to him, warranting divorce) was not actually
litigated and decided in the prior Florida separate maintenance proceeding. The ultimate issue
in the Florida case was the husband's cruelty toward the wife. The wife's cruelty was not an
issue. Therefore, res judicata and related doctrines (collateral estoppel by judgment and
estoppel by rule) are not effective to preclude this action. On the other hand, it is the wife's
contention that the full faith and credit requirement of the federal constitution compels
Nevada to recognize the Florida judgment as a conclusive and final determination of all
issues that were or could have been decided in that case. Though that decree was by default
following personal service of process, the husband had full opportunity to file an answer and
counterclaim for affirmative relief. He must be treated as though he had done so, with the
result that his present cause of action charging the wife with extreme cruelty must be deemed
to have been litigated in Florida.
[Headnotes 1-6]
Initially it is best that we distinguish res judicata and collateral estoppel. The doctrine of
res judicata is properly limited to the situation where there is a bar to or a merger of the
former cause of action. It is a rule which precludes the parties from relitigating what is
substantially the same cause of action.
80 Nev. 52, 56 (1964) Clark v. Clark
is substantially the same cause of action. Restatement, Judgments 48 (bar); Restatement,
Judgments 47 (merger); Kernan v. Kernan, 78 Nev. 93, 369 P.2d 451 (merger); Biel v.
Godwin, 69 Nev. 189, 245 P.2d 997 (merger). On the other hand, collateral estoppel (estoppel
by record) may apply even though the causes of action are substantially different, if the same
fact issue is presented. As distinguished from res judicata, it is the record of the former case
rather than the judgment that stands as a barrier to relitigation.
1
One writer, for convenience,
refers to res judicata as involving claim preclusion, and collateral estoppel as dealing with
issue preclusion. See VestalThe Constitution and Preclusion/Res Judicata, 62 Mich.L.
Rev. 33. The same rules as to privity and finality of judgment apply to each doctrine.
2
By
virtue of the application of collateral estoppel to a different cause of action than that involved
in the first suit, the doctrine is, in a sense, broader than the bar aspects of res judicata; yet,
the restriction of collateral estoppel to issues actually litigated and necessarily determined in
the first action may circumscribe the operation of that doctrine more closely than the bar of
res judicata which may, in some jurisdictions, affect matters which could have been
litigated. Restatement, Judgments 68, comment (a), (1942). Of course, a final judgment of
decree of a sister state, when rendered by a court of competent jurisdiction, acquires
constitutional stature under the full faith and credit clause. Sherrer v. Sherrer, 334 U.S. 343
{as to the prior adjudication of jurisdiction; participation by both parties); Coe v. Coe, 334
U.S. 37S {companion case to Sherrer). However, we do not believe that the constitutional
command of full faith and credit poses a choice of law problem. Cf. Ford v. Ford, 371 U.S.
1S7.
____________________

1
These doctrines are dissected and explained in the following articles: Developments in the Law, Res
Judicata, 65 Harv.L.Rev. 818; Collateral EstoppelEffects of Prior Litigation, 39 Ia.L. Rev. 217; Collateral
Estoppel by Judgment, 56 Harv.L.Rev. 1; The Constitution and Preclusion/Res Judicata, 62 Mich.L.Rev. 33;
Domestic Relations and Something About Res Judicata, 22 U. of Pitts.L.Rev. 313.

2
The Nevada cases of Miller v. Miller, 54 Nev. 44, 3 P.2d 1069, 11 P.2d 1088; Silverman v. Silverman, 52
Nev. 152, 283 P. 593 and Vickers v. Vickers, 45 Nev. 274, 199 P. 76, 202 P. 31, illustrate collateral estoppel
(though the court spoke in terms of res judicata). In each, the later Nevada suit alleged a different cause of
action. However, as the facts essential to establish the cause of action pleaded in the first case were the same
facts needed to prove the cause of action alleged in the later case, the prior record precluded relitigation.
80 Nev. 52, 57 (1964) Clark v. Clark
Sherrer, 334 U.S. 343 (as to the prior adjudication of jurisdiction; participation by both
parties); Coe v. Coe, 334 U.S. 378 (companion case to Sherrer). However, we do not believe
that the constitutional command of full faith and credit poses a choice of law problem. Cf.
Ford v. Ford, 371 U.S. 187. Rather, the mandate of full faith and credit to judgments is
limited to their effect as res judicata, and should not be extended to include questions of
choice of law which may later arise. Reese and Johnson, The Scope of Full Faith and Credit
to Judgments, 49 Colum.L.Rev. 153. The constitutional requirement is fully met when we
recognize the Florida judgment as it standsa final determination that the husband and wife
may live separately, with support provided, and resting upon the conclusion that the husband
had been guilty of cruelty to his spouse. Accordingly, in deciding the preclusive effect to be
given the final judgment of the Florida court, we are not to be governed by the Florida law of
res judicata or estoppel, or by the effect of those doctrines upon the husband's ability to
procure a divorce in that state, had he litigated his case there.
3
It seems to us that we are at
liberty to follow Nevada law as to the scope of the doctrines of res judicata and estoppel,
particularly in cases dealing with status where important state interests and public policies are
involved. Cf. Bower v. Landa, 78 Nev. 246, 371 P.2d 657.
4
With these preliminary
considerations before us, we turn to the instant case.
____________________

3
Some writers appear to believe otherwise. See VestalThe Constitution and Preclusion/Res Judicata, 62
Mich.L.Rev. 33, 38, where he says, inter alia: Simply stated, the full faith and credit concept requires that the
judgment handed down in State A be given the same effect in State B that it would have been given in State A.
See cases collected in 138 A.L.R. 346, at 365; 90 A.L.R.2d 745, at 751. The United States Supreme Court has
been demonstrably inconsistent in its treatment of the scope of full faith and credit. See 49 Colum.L.Rev. 153.

4
We do not intend to intimate that the scope of res judicata and estoppel is different in Florida than in
Nevada. As we read Gordon v. Gordon, 59 So.2d 40 (Fla. 1952), the leading case in Florida, their view of the
doctrines is the same as ours. However, the effect of applying such defenses to the substantive divorce law of
that state may be different.
80 Nev. 52, 58 (1964) Clark v. Clark
[Headnotes 7-9]
Without question, Nevada must give full faith and credit to the support provisions of the
Florida judgment (which the trial court did) and, as well, to the finding that the husband was
guilty of cruelty to the wife, if and when his conduct becomes an issue in this case. However,
his conduct is not now an issue. He has charged his wife with cruelty. She has denied it. This
cause of action was never presented to the Florida court, nor was any fact issue drawn
regarding it.
5
Neither res judicata nor collateral estoppel are effective to forbid the
prosecution of his present claim for relief. Should the wife elect to counterclaim for divorce
or separate maintenance in the pending case, alleging the husband's extreme cruelty as a
ground, then full credit will be given the Florida judgment on that issue. If this should occur,
the trial court will then be called upon to exercise the discretion granted it by NRS 125.120,
the comparative rectitude statute. Cf. Gabler v. Gabler, 72 Nev. 325, 304 P.2d 404; Sisson v.
Sisson, 77 Nev. 478, 367 P.2d 98.
[Headnote 10]
Having determined that neither the husband's alleged cause of action, nor the facts
essential to prove it were actually litigated in Florida, we now turn to discuss the wife's
contention that he is barred in any event because his present cause of action could have
been litigated in Florida. The same contention was made in Weisheyer v. Weisheyer, 54
Nev. 76, 6 P.2d 439, and rejected. We there held that if the matters on which the second
action is based, although they might have been used as a defense in the first suit,
constitute a substantive and distinct cause of action which the defendant in the former
suit was not bound to plead or set up, the former judgment is not a bar.
____________________

5
Florida recognizes the defense of recrimination. Russ v. Russ, 150 Fla. 653, 8 So.2d 279; Stewart v.
Stewart, 158 Fla. 326, 29 So.2d 247. Where that defense is not asserted and a finding made (as in the present
case where the separate maintenance decree was by default) no fact issue is drawn regarding the plaintiff's
conduct. Thus, the entry of a default decree will not support any inference that the plaintiff was without fault.
Even if we were to assume (as the wife contends in this case) that the Florida default judgment did determine
that the wife was without fault, such determination would relate only to conduct occurring before that suit was
started on April 28, 1961 and would not preclude the husband from proceeding in Nevada if he could show that
she was guilty of extreme cruelty subsequent to April 28, 1961. Koch v. Koch, 62 Nev. 399, 152 P.2d 430;
Pease v. Pease, 47 Nev. 124, 217 P. 239.
80 Nev. 52, 59 (1964) Clark v. Clark
the second action is based, although they might have been used as a defense in the first suit,
constitute a substantive and distinct cause of action which the defendant in the former suit
was not bound to plead or set up, the former judgment is not a bar. In other words, the rule
(conclusive as to matters which might have been raised) has no application to those
independent matters which the parties may, but are not required to and do not in fact, plead or
rely upon. Many of the Nevada cases regarding the might have been litigated principle are
reviewed in Bankers Trust Co. v. Pacific Employers Insurance Co., 9 Cir., 282 F.2d 106, 111,
and we need not recanvass them.
[Headnotes 11-13]
We are not aware of a single case holding that if a spouse sues for separate maintenance
the defendant must appear and, by affirmative defense or counterclaim, assert his grievances
or otherwise be forever barred from doing so. Accordingly, we consider Weisheyer, supra, as
controlling this phase of the appeal. In any event, the compulsory counterclaim rule of
Florida, upon which the wife so heavily relies in presenting her might have been litigated
argument, is merely a rule of procedure without extraterritorial significance. We approve the
following statement of the Arkansas court in Hill v. Rowles, 223 Ark. 115, 264 S.W.2d 638,
We believe the better rule to be that even though a defendant in a separate maintenance suit
has not asked for a divorce by way of cross complaint, he should not be barred from
maintaining a suit for divorce at a later date. The policy of the law is to support and maintain
the marriage status wherever it is reasonable to do so in the circumstances; and the husband
should not be penalized because he did not ask for a divorce at the first opportunity.
For the reasons given, the summary judgment entered below must be reversed.
____________
80 Nev. 60, 60 (1964) Serpa v. Porter
JOE SERPA, JR. and JOANNE SERPA, Husband and Wife, Appellants, v. GRACE S.
PORTER, Formerly Known as GRACE S. WAYMAN, aka GRACE A. WAYMAN,
Respondent.
No. 4648
February 14, 1964 389 P.2d 241
Appeal from the First Judicial District Court, Churchill County; Frank B. Gregory, Judge.
Action for cancellation of lease and option and for damages against lessor. The trial court
entered judgment adverse to plaintiffs and they appealed. The Supreme Court, Badt, C. J.,
held that evidence established that lessees were not deprived of occupancy or enjoyment of
any part of demised premises through any act or failure to act on part of lessor, but that any
such deprivation arose out of their agreement with party who had occupied premises under
arrangement with lessor.
Affirmed.
Thompson, J., dissented.
[Rehearing denied March 2, 1964]
Diehl & Recanzone, of Fallon, for Appellants.
Sidney W. Robinson, of Reno, for Respondent.
1. Landlord and Tenant.
Evidence established that lessees seeking cancellation of lease and option and damages were not deprived
of occupancy or enjoyment of any part of demised premises through any act or failure to act on part of
lessor but that any such deprivation arose out of their agreement with party who had occupied premises
under arrangement with lessor.
2. Witnesses.
Party who had never been asked foundation questions could not be impeached.
Any error in refusal of testimony that witness who occupied ranch stated he would not get off until he had
settled with lessor sued by lessee for cancellation of lease on basis that lessor failed to have witness
removed was not prejudicial, where case was tried by court and trial judge rejected lessee's testimony that
witness had made such statement as incredible. NRCP 61.
OPINION
Serpa and his wife, appellants here, commenced an action against respondent in the court
below for the cancellation of a certain lease and option and for damages. The court denied
relief to the plaintiffs, and in their appeal from the judgment they assert (1) that the court's
written decision (and, we are willing to assume, the court's formal findings based thereon) are
contrary to the evidence; and (2) that the court was in error in not permitting the plaintiffs to
present certain impeaching evidence.
As to the first assignment, the evidence was directly in conflict, and we are of the opinion
that the court's decision and findings are amply supported thereby. As to the second
assignment, we hold that even if the impeaching evidence should have been admitted, the
error was harmless. We proceed to the facts.
Respondent was the owner of ranch and range lands in Lander County, comprising what
was known as the Iowa Canyon Ranch and the Walters Ranch. On November 4, 1960, she
executed a lease to the Serpas, with an option to purchase. The term was for two years,
commencing November 4, 1960. The total rental comprised $20,000, being $5,000 upon the
execution of the lease and $5,000 on each of the dates May 1, 1961, November 4, 1961, and
May 1, 1962.
The option was for the purchase of the land and improvements and ranch equipment, etc.,
for $190,000. The combined lease and option comprises an instrument 16 pages long, with
full covenants, but the only provisions involved in the action are the following:
1. Possession of the premises is hereby delivered to lessees upon execution of this lease
by all parties, subject to the provisions of Paragraph 2, which follows:
2. It is understood that the premises are now held by WILLIAM MENDES, under a
rental or lease arrangement and that this lease and option is given subject to the right of
possession which said WILLIAM MENDES has.
subject to the right of possession which said WILLIAM MENDES has. Lessor agrees,
however, to have said WILLIAM MENDES removed from said premises within sixty days
(60) from the date of execution of this lease and option. It is contemplated that as of the date
of this lease and option said WILLIAM MENDES will assert no right to possession to the
property known as the WALTERS RANCH and that lessees herein can assume immediate
possession thereof.
Plaintiffs' complaint alleged the execution of the lease and option, the payment to
defendant of $5,000 and that defendant contrary to the provisions of paragraph 2 of said
lease and option failed and refused to have William Mendes removed from the premises
within 60 days from the date of the execution of said lease and option; that on February 15,
1961, plaintiffs had notified defendant that by reason of such failure they had rescinded the
lease and option and had demanded the return of their $5,000 payment.
1
They prayed for
judgment for a refund of the $5,000 paid, for damages in the sum of $10,030.72, for an
attorney fee, costs and further relief.
Defendant answered, denying any breach, and as an affirmative defense alleged that any
possession maintained by Mendes of a portion of the leased property was with the consent
and permission of the plaintiffs and in no respect interfered with the general possession of
plaintiffs, nor did the same in any respect lessen the value thereof; that plaintiffs by their
conduct in permitting Mendes to remain in possession of a portion of said property are
estopped to claim a default on the part of the defendant in connection with the removal of
Mendes from the property, and waived any right to require Mendes to be removed
therefrom.
As a further defense, defendant alleged that plaintiffs had gone into possession under their
lease, put their cattle on the land and consumed feed of a value in excess of their $5,000
down payment.
____________________

1
As a matter of fact the notice did not mention Mendes, but stated that the Serpas elected to rescind due to
your failure to perform your obligation to give possession of the premises leased to Joe and Joanne Serpa within
the period of time as designated in your lease and option.
cattle on the land and consumed feed of a value in excess of their $5,000 down payment.
The conflict in the evidence and the manner in which the trial judge resolved it appear
from the following excerpts from his written opinion:
As to the defendants claim that there was some agreement between the plaintiff and Mr.
Mendes respecting the use and occupancy of the property during the period between
November 4, 1960 and January 4, 1961, we are confronted with a conflict in the evidence and
a question as to the credibility of witnesses. The plaintiff vehemently and without
equivocation denies that there was any agreement of any sort with Mr. Mendes, yet at the
same time he testified that he never disputed with Mr. Mendes about his continued
occupancy, nor did he ever ask him to remove himself or his stock from either ranch. In turn,
Mr. Mendes outlined to the court in some detail an agreement which he claimed existed
between himself and Mr. Serpa relating to the joint operation of the ranch and the running of
the cattle belonging to both parties upon that ranch.
It is difficult for this court to believe that the plaintiff, Mr. Serpa entered upon the Iowa
Canyon properties, took possession of the main ranch house, caused Mendes and his family to
move to the bunk-house, placed the Serpa cattle on the Iowa Canyon pastures and upon the
open range appurtenant to both ranches, permitted his cattle to be worked with the Mendes
stock, and did all of the other things that were done, in the absence of some agreement, at
least an implied agreement, between the two parties that they should continue to operate the
ranches together. * * * As difficult as the ranching conditions were in the late fall and early
winter of 1960 and 1961, and as scarce as feed was at that time, it is almost incredible to ask
this court to believe that the plaintiff would have continued to maintain his cattle upon these
ranches, to occupy them himself, and to permit Mendes and his stock to remain on the same
ranches unless there had been some tacit agreement between these two men for some sort of a
joint operation. It is noteworthy that during this same time the Serpas were permitted, by Mr.
permitted, by Mr. Mendes, to occupy a great deal of ranch property to which they were not
entitled under any conditions unless there was some such agreement. Mendes appeared to be
happy and satisfied with the arrangement; he made no effort to evict the Serpas from the
property to which he was entitled, and to which the plaintiff had no right under the lease.
The court then concluded that plaintiffs were not deprived of the occupancy or enjoyment
of any part of the demised premises through any act or failure to act on the part of defendant,
but that any injury to plaintiffs by being deprived of the use of any part of the property arose
out of Serpas' agreement with Mendes. The court, accordingly, denied any recovery by
plaintiffs and ordered entry of judgment in favor of defendant for costs and an attorney fee.
[Headnote 1]
This case presents another example of a conflict in the testimony of the witnesses which
must be resolved by the trier of the facts and in which this court will not interfere. That there
is substantial evidence to support the finding can hardly be controverted. Appellants' first
assignment of error is without merit.
Appellants' second assignment of error was the trial court's sustaining of respondent's
objection to the introduction of testimony for the purpose of impeaching the testimony of the
witness William E. Mendes. Plaintiffs' counsel, on cross-examination of defendant's witness
Mendes, had asked:
Q. Do you recall making a statement to a Mr. Donald Bruner while you and he were on
the Iowa Canyon Ranch in the month of January of 1961 to the effect that you would not get
off the place until such time as you had settled with Mrs. Wayman?
A. No, I don't remember that.
Q. Do you think that statement may have been made?
A. No, I wouldn't say that it had.
Q. You don't recall making it?
A. That is right.
Q. Do you recall during the months of December and January at various times on the
Iowa Canyon Ranch of having made the statement to Josephine Plummer and Marilyn
Plummer that you would not get off the ranch until such time as you had settled with Mrs.
and January at various times on the Iowa Canyon Ranch of having made the statement to
Josephine Plummer and Marilyn Plummer that you would not get off the ranch until such
time as you had settled with Mrs. Wayman?
A. No, sir.
Q. You don't recall that?
A. No, sir.
Q. Do you recall making a similar statement at similar times and at the same place to
Adele Serpa or John Serpa?
A. No, sir.
[Headnotes 2, 3]
The same responses were made to questions on cross-examination whether the witness
recalled making a similar statement to Josephine Plummer and to Marilyn Plummer. Plaintiff
called Donald Bruner to testify that such statement had been made. Objection was made on
the ground that the attempted impeachment was made upon a collateral matter, and the trial
court sustained the objection after considerable argument and submission of authorities on
that particular ground. Respondent now submits the proposition that the ruling was correct
upon the ground that the proper foundation had not been laid for the impeaching testimony.
Both propositions have been the subject of long and learned discussions in the texts and
extended treatment in many court opinions throughout the United States. A discussion of the
subject here would not only fail to add anything to the great body of law on the subject, but is
unnecessary to the determination of the case. Such conclusion grows out of the fact that, even
assuming that the ruling was in error, the refusal to admit the impeaching testimony was not
prejudicial. Appellants were permitted by the court (in fact this was at the suggestion of the
court to counsel) to make an offer of proof, and the court well understood that the three
impeaching witnesses would testify that both William E. Mendes and his father had made to
each of the three witnesses the statements indicated.
2
The father had never been asked the
foundation questions.
____________________

2
See United States v. Borden Co., infra.
been asked the foundation questions. Therefore he could not be impeached.
3
It is conceded
by respondent that the statements of the impeaching witnesses were not offered as evidence
of the truth of the matter asserted but simply for the purpose of impeaching the veracity or
credibility of the testimony of Mendes.
And it must be recalled that the trial was to the court without a jury. The court, with the
knowledge of what the impeaching witnesses would testify to (a jury would have no such
knowledge), nonetheless, for the reasons outlined in its written decision, not only gave full
credence to Mendes' testimony but rejected as incredible the testimony of Serpa.
It is contended that this court in Heinen v. Heinen, 64 Nev. 527, 186 P.2d 770, reversing
the trial court because of rejecting the offer of ten depositions, strongly supports the
appellant's contention of prejudicial error. That case, however, is distinguishable in several
important respects. First, it was a jury trial. Secondly, the rejected depositions went to the
main issue in the case, and were offered for the purpose of fairly meeting the issues raised by
the plaintiff. Thirdly, the nature of the depositions aggravated the prejudicial effect of their
rejection. The respondent wife's testimony and that of her brother had been to the effect that
the defendant was unsympathetic, sarcastic, lacked understanding of his wife, ridiculed her
about the children, her cooking, etc., took a superior attitude and seemed to delight in
emphasizing her mistakes in front of the family and friends; that the occasions were so
numerous as to be impossible of detailing each one separately as to time, place, or person.
____________________

3
As a matter of fact the record would indicate that the witness Bruner was possibly not referring at all to a
conversation with the witness William E. Mendes, but to Mendes' father, referred to as Old Man Billy, who had
never been asked whether he had made the statements indicated above. This is apparent from the testimony of
Bruner, who testified as follows:
Q. And when you were out there, did you visit with the Mendeses as well as the Serpas?
A. Yes, I did.
Q. And what Mendeses?
A. Both of them, but mostly Old Man Billy, as he is called.
Q. Did Mr. Mendes [Old Man Billy?] ever advise you as to his feeling with respect to his getting off the
ranch?
A. Yes, he did.
as to time, place, or person. They occurred in the presence of both families, at social
gatherings, at the homes of mutual friends, and occasional dinners and theatre parties. These
occasions would often reduce her to tears. This court considered the proposition that positive
testimony was always stronger than negative testimony, and noted that the only way of
opposing the positive testimony was by the testimony of witnesses who had observed the
husband and wife on occasions throughout their married life in private and public gatherings
of friends and relatives and never heard the husband indulge in the conduct complained of.
The rejected testimony was positive testimony as distinguished from the impeaching
testimony rejected here.
Boyd v. Pernicano, 79 Nev. 356, 385 P.2d 342, which in the face of error by reason of
misconduct of counsel, was affirmed because such error was held to be harmless is thought
important because of its statement that: If there appears to be a sharp conflict in the evidence
upon essential issues the error is treated as having more significance in the jury's decisional
process than if the case is a one-sided affair.
The court then analyzed the testimony as being overwhelmingly in favor of respondent.
We may well accept this court's conclusion in Boyd. The court further, however, stated: [I]t
is our duty to search the record as a whole, and exercise a judicial discretion in deciding
whether the error is harmless or reversible in nature. We there cited Lee v. Baker, 77 Nev.
462, 366 P.2d 513, where the error was patently prejudicial. The footnote referring to Lee
also referred to Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239, also referred to in the text
above quoted in Boyd. In Pfister the error was considered harmless because the record did not
contain a transcript of the trial from which the court could determine the existence or degree
of conflict in the evidence upon essential issues.
We have no quarrel with any of these cases and we frankly recognize the direct conflict
involved in this case, but we are still of the opinion that the error, if any, is harmless. Indeed,
evidence that William E. Mendes did make the statement contained in the impeaching
question was already before the court.
impeaching question was already before the court. Serpa testified that William E. Mendes had
told him many times that they weren't leaving until they had been taken care of to their
satisfaction so far as their lease went.
In United States v. Borden Co., 347 U.S. 514, 74 S. Ct. 703, 98 L.Ed. 903, the trial court
refused to allow the government to use for impeachment of a hostile witness a deposition
taken in another case; to introduce in evidence certain tape recordings made for use in the
prior case; and to introduce testimony as to a conversation with a deceased agent of one of the
defendants. Although these rulings were held to be error, the United States Supreme Court
held that they were harmless under F.R.Civ.P. 61. It made such ruling after considering the
record, including the government's offers of proof, as in the instant case, and concluded: [I]t
does not appear that admission of the evidence in question would have been sufficient to
change the conclusion that the government had not established a case under the Sherman Act;
hence the rulings cannot be said to have affected the substantial rights of the parties within
the meaning of [F.R.Civ.P. 61].
In Century Indemnity Co. v. Davidson Transfer & Stor. Co., 2 Cir., 261 F.2d 690, it was
held to be error but not prejudicial to exclude a statement signed by a witness four weeks
after the accident, at the time of said action some eight years later. The court said: Ordinarily
this error would seem so substantial as to require reversal * * *. But a review of the record
leads us to the conclusion that on the facts of this case the error was harmless and does not
require reversal. Rule 61 Federal Rules of Civil Procedure. The tenor of both the statement
and [the witness'] testimony was the samenamely, that the accident was unavoidable.
Perhaps the most convincing reason for concluding that the exclusion of the impeaching
testimony was not prejudicial, and that it would not have changed the result if admitted is the
indisputable fact that the trial judge came to his conclusion because he rejected the testimony
of Serpa as incredible. This is abundantly evident from the excerpts from his opinion quoted
above.
We are satisfied that, if the rejection of the impeaching testimony was error, it was not
prejudicial, and that appellants' contention that it requires a reversal and a remand for new
trial is without merit.
4

It should be unnecessary to add that in holding that the rejection of the proffered
impeaching testimony was harmless and not cause for reversal under NRCP 61, we do so
after searching the entire record and under the particular circumstances of this case.
5
As
stated in 7 Moore, Federal Practice 61.07[2] (2d ed.), at 1021:
Questions as to whether error in the exclusion of evidence in jury cases is harmless or
prejudicial must also be solved by determining whether substantial rights of the parties have
been violated, which in turn depends upon the circumstances of each case. Thus the exclusion
of evidence as to a fact which has been adequately established by other evidence is harmless
error. * * *
There was no motion for a new trial and the appeal is only from the decision and
judgment.
McNamee, J., concurs.
Thompson, J., dissenting:
The true holding of the majority opinion is that the harmless error technique may be
used to place the appellate stamp of approval on a trial court ruling which denies a
plaintiff his right to present material impeaching testimony in rebuttal.1
____________________

4
Rule 61 NRCP. No error in either the admission or the exclusion of evidence and no error or defect in any
ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting new
trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of
the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights
of the parties.

5
Cf. (American) Lumbermens Mut. Cas. Co. v. Timms & Howard, 2 Cir., 108 F.2d 497, 504, in which the
court said:
Under all the circumstances we think it is doubtful if the plaintiff suffered harm by what transpired. We are
admonished not to reverse for all error in the exclusion of evidence, unless refusal to do so appears to be
inconsistent with substantial justice.' Federal Rule 61, 28 U.S.C.A. following section 723c; 28 U.S.C.A. 391;
Equity Rule 46, 28 U.S.C.A. following section 723. It is significant that the judge, who took the full
responsibility of decision, notwithstanding the presence of the jury, reached the same result. Exclusion of
evidence before
an advisory jury when it also means an exclusion from its consideration by the judge may be ground for reversal,
* * * but not where he had had the full force of the evidence, as here.
harmless error technique may be used to place the appellate stamp of approval on a trial court
ruling which denies a plaintiff his right to present material impeaching testimony in rebuttal.
1

To correctly evaluate the holding, one first must know what this case does not involve. It
has nothing whatever to do with the power of a trial court to limit the number of witnesses
that may be called to testify upon a particular issue. Annots., 21 A.L.R. 335; 48 A.L.R. 947.
Here, plaintiff's counsel represented to the court that he had three rebuttal witnesses to
present. Each would contradict or impeach testimony given by William Mendes relevant to
the heart of the controversy. Not one of them was heard!
Nor does this appeal involve the case made distinction between a court trial and a jury trial
as to evidence offered and received. If a court trial, the improper reception of incompetent
evidence may be deemed harmless if there exists competent evidence to support the result.
Duplantis v. Duplantis, 50 Nev. 234, 255 P. 1014;, Rehling v. Brainard, 38 Nev. 16, 144 P.
167. If a jury trial, the improper reception of evidence relating to an issue in the case, will
probably be considered prejudicial. McLeod v. Miller & Lux, 40 Nev. 447, 153 P. 566, 167 P.
27; Mikulich v. Carner, 69 Nev. 50, 240 P.2d 873, 38 A.L.R.2d 1; Las Vegas Sun v. Franklin,
74 Nev. 282, 329 P.2d 867. The fact that this case was a court trial without a jury has no
weight or significance in testing the magnitude of the mistake made. The requirement of a fair
trial is always present, whether the dispute is presented for resolution to court or jury. In
either instance, a party must be given the opportunity to put on his case.
____________________

1
The objection made at trial to the impeaching testimony was that it dealt with a collateral matter. That
objection was unfounded for the reasons expressed in the opinion. On appeal, counsel sought to sustain the trial
court exclusionary ruling on the ground that a proper foundation had not been laid for impeachment of the
witness Mendes. The interrogation of Mendes was sufficiently clear as to (time, place, persons present) the
foundation necessary to pave the way for impeaching rebuttal testimony. Reno Mill Co. v. Westerfield, 26 Nev.
332, 67 P. 961, 69 P. 899: State v. Kuhl, 42 Nev. 185, 175 P. 190, 3 A.L.R. 1694; cf. Duran v. Mueller, 79 Nev.
453, 386 P.2d 733.
on his case. Yet, the majority opinion states, And it must be recalled that the trial was to a
court without a jury. Does this mean that one's right to present his case is somehow
restricted or diminished if a court is to be the arbiter rather than a jury? It seems so. I submit
that such a concept is foreign to the administration of justice in this country. Nor does the
trial court's knowledge of what the impeaching witnesses would say change the picture.
2
No
judge has the capacity to determine the credibility and integrity of witnesses by listening to
counsel's offer of proof. The witnesses must be seen and heard before the court can choose
sides on the issue of credibility. The majority treat impeaching evidence as second class
matter.
3
This, too, is a novel thought. The trial of a case is a search for truth. Both
substantive and impeaching evidence are indispensable in that pursuit.
Finally, it seems to me that the harmless error rule (NRCP 61) does not embrace the
issue on this appeal. Before today, every guide announced by this court would demand that
the mistake we are reviewing be deemed prejudicial. Indeed, the author of the majority
opinion also wrote Heinen v. Heinen, 64 Nev. 527, 186 P.2d 770, wherein prejudicial error
was found when, the lower court precluded a party from introducing into evidence the
depositions of ten witnesses which were relevant to the main issue in the case. Meinen was
decided by a jury. This is a distinction without a difference. The basic theme underlying the
ruling is that of a fair trial.
It is especially true that an error will be treated as having more significance if there is a
sharp conflict in the evidence. (See Boyd v. Pernicano, 79 Nev. 356, 385 P.2d 342,
comparing the situation there considered with other Nevada cases wherein there was a
sharp conflict in the evidence.)
____________________

2
The majority opinion states that the court, with knowledge of what the impeaching witnesses would testify
to, nonetheless, for the reasons outlined in its written decision gave full credence to Mendes' testimony.

3
The opinion says that it will be recognized, of course, that the statements of the impeaching witnesses were
not offered as [substantive] evidence but simply for the purpose of impeaching the veracity or credibility of the
testimony of Mendes.
other Nevada cases wherein there was a sharp conflict in the evidence.) In the present case
two opposite tales were told about the only fact that really made a difference. The court had to
accept one and reject the other. The credibility of witnesses became the consideration upon
which the case would turn. The majority opinion acknowledges that this case presents
another example of a conflict in the testimony of the witnesses which must be resolved by the
trier of the facts. Without question the significance of the error is enlarged in such
circumstances and must be evaluated accordingly. That there exists substantial evidence to
support the result, is an irrelevancy on this appeal.
4
I presume that there may be substantial
evidence upon which to base a decision, even though a trial court would allow an aggrieved
party to present only half of his case or even less.
This appeal does not involve any of the considerations which I have just discussed (power
to limit witnesses; trial before a court rather than a jury; harmless error; substantial evidence).
However, it does involve fundamental fairness in the handling of a law suit. The glaring facts
of this case are these. William Mendes had leased the ranch properties from the defendant and
was in lawful possession when, on November 4, 1960, the defendant leased the same ranch
properties to the plaintiff. The subsequent lease required the defendant to have William
Mendes removed from said premises within sixty days (60) from the date of execution of this
lease and option. Of course, the purpose of that provision was to assure the plaintiff
(subsequent lessee) that his right to the possession of the ranch as of January 4, 1961, was
real and not fictitious. The existing lease to Mendes had to be terminated to accomplish this.
Without the abolition of Mendes' prior and primary right to possession, the subsequent lease
was ineffective to transfer possession to the plaintiff. The lease to Mendes was not terminated
within 60 days. Mendes and his cattle remained on the ranch thereafter.
____________________

4
I mention this because the majority opinion seems to pay some attention to the substantial evidence
doctrine.
cattle remained on the ranch thereafter. When the plaintiff sought to rescind the subsequent
lease because the defendant had not terminated the prior lease to Mendes, the defense was
made that Mendes was on the property because of an agreement that he (Mendes) had made
with the plaintiff. The entire case turned upon the validity of that defense. There was a direct
conflict in the evidence as to whether Mendes remained beyond the 60-day period because of
an understanding with the plaintiff that he could do so, or whether his presence there was
because he and the defendant had not been able to agree upon terms to end his tenancy. The
plaintiff denied the existence of an understanding with Mendes. Mendes testified that he and
the plaintiff had made an agreement for the joint operation of the ranch. The three rebuttal
witnesses that the plaintiff sought to present would (according to counsel's offer of proof)
have impeached Mendes by relating inconsistent statements which Mendes had made to
them.
5
The precluded evidence would have shown, or at least tended to establish, that
Mendes was on the ranch after the 60-day period because he had not made a deal with the
defendant to terminate his lease, and not because of any agreement with the plaintiff that he
could remainthereby casting doubt upon the credibility to be given Mendes' contrary
testimony at the trial. Had the evidence been received, perhaps the result of the case would
have been the same. The majority suggests that this is so. But the trial result may have been
altered. We do not know. However, it seems to me true that neither a trial court, nor this
court, may properly speculate on the subject when it is clear that one party to a lawsuit has
been denied his right to put on a casea fair trialhis day in court.
____________________

5
The evidence was not admissible on plaintiff's case in chief because of the hearsay rule. Mendes was not a
party to the suit, only a witness. However, Mendes did testify for the defendant. Therefore, prior inconsistent
statements made by him to others, and material to an issue, became admissible for impeachment purposes.
Ewing v. United States, U.S.App.D.C. 14, 135 F.2d 633, 640; State v. Kuhl, 42 Nev. 185, 175 P. 190, 3 A.L.R.
1694.
When this happens, another trial is needed. A guessing game as to the effect of the error
seems out of place. I dissent.
____________
80 Nev. 74, 74 (1964) Hardgrave v. State ex rel. Highway Department
ROSE HARDGRAVE, Appellant, v. THE STATE OF NEVADA, On the Relation of the
STATE HIGHWAY DEPARTMENT, Respondent.
No. 4660
February 17, 1964 389 P.2d 249
Appeal from the First Judicial District Court, Ormsby County; Richard L. Waters, Jr.,
Judge.
Action against State for injuries sustained by pedestrian when struck while standing on
shoulder of highway by automobile which skidded on ice which State allegedly had
negligently permitted to accumulate on highway. The trial court granted motion to dismiss
and appeal was taken. The Supreme Court, McNamee, J., held that State was immune from
liability for any negligence resulting in injury to pedestrian.
Affirmed.
Nada Novakovich, of Reno, for Appellant.
Harvey Dickerson, Attorney General, and Gabe Hoffenberg, Chief Deputy Attorney
General, for Respondent.
Assignment that court erred in denying motion to amend complaint so as to join person as party
defendant must be rejected where record designated by appellant contained nothing with reference to such
motion.
2. States.
Enactment of bond trust fund act was intended merely to subject State and bond trust fund to same
obligations as surety as had theretofore been imposed upon private charities.
3. Highways.
State is immune from liability for its negligent operation of roads. Const. art. 4, 22.
4. Highways.
State was immune from liability for injuries allegedly resulting from its negligently permitting ice to
accumulate on highway resulting in injuries being sustained by pedestrian struck while standing on
shoulder of highway by automobile which skidded on ice. Const. art. 4, 22.
5. States.
General law within constitutional section to effect that provision may be made by general law for
bringing suit against State means general law passed by legislature. Const. art. 4, 22.
OPINION
Hardgrave's complaint alleges in substance that the State allowed State Highway Route 28
to be negligently constructed and as a result insufficient drainage was provided; that the State
assumed control of and responsibility for the condition of said highway and the duty of
keeping the same in a safe condition for ordinary travel; that the State negligently permitted
ice which had accumulated on the highway to remain thereon; that the State knew or had
reason to know of the slippery, icy, unsafe, and dangerous condition of the highway. That on
the 16th day of January, while standing on the shoulder of said highway and off of said
highway, plaintiff was struck and thrown a distance of approximately thirty (30) feet by an
automobile being then and there driven by one Robert E. Forte which automobile was caused
to skid by reason of and as a direct and proximate result of the ice on said highway.
Hardgrave sustained personal injuries and seeks damages therefor.
Pursuant to NRCP 12(b) the State moved to dismiss the action for failure of the complaint
to state a claim upon which relief can be granted, in that the State cannot be sued without its
consent, that consent has not been given, and that the State has in no manner waived its
sovereign immunity so as to permit this action to be brought against it.
The motion to dismiss was granted and this appeal is from the order of dismissal.
In Rice v. Clark County, 79 Nev. 253, 382 P.2d 605, we refused to allow a county to assert
the defense of sovereign immunity so as to relieve it from liability for negligence in operation
of roads. In that case we stated: We hold merely that sovereign immunity does not extend to
counties so as to relieve them for their negligent operation of roads. The use of the word
extend implies that there is some sort of sovereign immunity. We are now asked to
determine whether the State under the doctrine is immune from liability for its negligent
operation of roads.
Nev. Const. art. 4, 22, provides: Suit against state. Provision may be made by general
law for bringing suit against the State as to all liabilities originating after the adoption of this
Constitution.
Gurley v. Brown, 65 Nev. 245, 193 P.2d 693, concerned the liability of the members of the
city council as individuals for negligence while performing a governmental function. This
court there stated (65 Nev. at page 250, 193 P.2d at page 695): Conceding that the immunity
of the state and its political subdivisions often results in injustice and leaves an injured person
without right of redress, it is too strongly ingrafted in our jurisprudence to be questioned at
this time, except in those cases in which the immunity is waived. The State of Nevada has
never waived such immunity * * *.
Hill v. Thomas, 70 Nev. 389, 270 P.2d 179, also recognized that the State was immune
from suit except in those cases in which the immunity is waived, and held that the legislature
in enacting the bond trust fund act of 1937 by implication waived the State's immunity and
has given consent to suit against it. But as stated in that case, its consent to suit against it is on
official bonds only. By virtue of the bond trust act the State of Nevada has become surety on
all official bonds in this state.
[Headnotes 1-4]
This complaint does not purport to be an action on any official bond. The State is not
herein being sued in the capacity of a surety on a bond.1 Appellant argues however that
the State, by the enactment of the bond trust act, has waived its general immunity to suit.
the capacity of a surety on a bond.
1
Appellant argues however that the State, by the
enactment of the bond trust act, has waived its general immunity to suit. In enacting this act
the legislature merely intended to subject the state and the bond trust fund to the same
obligations as surety as had theretofore been imposed upon private sureties. Its waiver of
immunity went no further. Hill v. Thomas, supra.
Appellant contends that even if the state bond trust fund act does not in itself constitute a
general waiver of state immunity from suit, the State now can be sued by reason of the law
established by our decision in Rice v. Clark County, supra. This, she maintains is the type of
general law referred to in Nev. Const. art. 4, 22.
[Headnote 5]
As heretofore stated the decision in that case holds only that sovereign immunity does not
extend to counties so as to relieve them from their negligent operation of roads. It established
no general law with respect to the liability of the State. Moreover all of Article 4 pertains to
the legislative department. Sections 20 and 21 thereof relate to special and general laws. We
construe the words general law as used in Section 22 to mean a general law passed by the
legislature.
In Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457,
the action was against a hospital district. The California Supreme Court would not permit the
defense of governmental immunity to stand, but it was expressly noted therein that [t]he rule
of county or local district immunity did not originate with the concept of sovereign
immunity. The Nevada Constitution recognizes that concept when it provides that provision
may be made by general law for bringing suit against the state. Although California has a
similar constitutional provision, the court in Muskopf held that it "provides merely for a
legislative consent to suit."
____________________

1
The assignment by appellant in her opening brief that the court erred in denying her motion to amend her
complaint so as to join as a party defendant the state highway engineer is rejected for the reason that the record
before us, designated as it was by appellant, contains nothing with reference to any such motion.
Muskopf held that it provides merely for a legislative consent to suit. If that is what it
means, the obvious implication is that without such a consent the sovereign cannot be sued.
Furthermore the legislative consent to sue was present in Muskopf.
In Rice v. Clark County, supra, the applicability of Article 4, 22, to the facts of that case
was neither raised nor was the question raised whether the legislature in its enactment of NRS
244.245 and 244.250, statutes which provide the conditions for filing suits against a county,
constituted a waiver of any immunity a county might otherwise have had.
The action of the trial court in granting the motion to dismiss was proper.
Affirmed.
The appeal involves the rule of governmental immunity from tort liability. The claimant
(appellant) asks that we abolish the doctrine by judicial act, asserting all of the reasons
expressed in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d
457, and particularly relying upon the recent decision of this court in Rice v. Clark County,
79 Nev. 253, 382 P.2d 605. The state's (respondent's) opposing view is founded on two
premises. Initially it argues that Nev. Const. art. 4, 22 (Provision may be made by general
law for bringing suit against the state as to all liabilities originating after the adoption of this
constitution.) precludes a judicial abrogation of the immunity doctrine and, second, it
contends that the principle of stare decisis should control in a suit against the state. Taylor v.
State and Univ., 73 Nev. 151, 311 P.2d 733; Hill v. Thomas, 70 Nev. 389, 270 P.2d 179.
It seems to me that the rule of governmental immunity from tort liability should be
abolished in this state once and for all. In expressing this view, I am cognizant of the need to
practice judicial restraint in areas reserved for legislative control. However, for the reasons
hereinafter stated, I do not believe that the constitutional provision was intended to, nor
does it, preclude judicial intervention in this area.
hereinafter stated, I do not believe that the constitutional provision was intended to, nor does
it, preclude judicial intervention in this area. Nor should stare decisis give us concern when
the rule of law under consideration is out of step with the society in which we live. The desire
for predictability in the law (which is, perhaps, the best reason for a judicial decision to be
controlled by precedent) must, in this instance, bow to the reasonable demand that injured
people be given an equal opportunity to ask for and receive justice in our courts without
penalty due to the tortfeasor's identity.
Adherence to stare decisis in dealing with the immunity of the state and its political
subdivisions is a tribute to confusion and not to certainty. Many proofs are available. Hill v.
Thomas, supra, held that the enactment of the bond trust fund act was an implied consent by
the state to suit. The claimant was, therefore, not precluded from suing the state as surety on
an official bond given for his benefit. Yet, in Taylor v. State and Univ., supra, appropriation
of money to the University, some of it being used to purchase liability insurance, was deemed
not to be an implied consent to suit. There the claimant was barred. It strikes one as strange
that the state may be liable if there is a surety bond to indemnify the plaintiff, but immune if
there is merely an insurance policy purchased expressly for his benefit.
The pattern of inconsistency is quite noticeable in the court's treatment of the public road
cases. A city, having exclusive control of its streets, may be liable for the breach of a
common law duty to make them safe for travel, if the legislative act (city charter) does not
expressly exempt the city from liability. Pardini v. City of Reno, 50 Nev. 392, 263 P. 768;
McDonough v. The Mayor and Aldermen of Virginia City, 6 Nev. 90; Barnes v. City of
Carson, 33 Nev. 17, 110 P. 3. Recently, liability was extended to embrace the county. Rice v.
Clark County, 79 Nev. 253, 382 P.2d 605. The majority opinion in today's case precludes
state liability. The rule of governmental immunity from tort liability, and the concept of a
governmental (as distinguished from a proprietary) function is involved whether suit be
brought against city, county or state.
brought against city, county or state. The rule was not discussed in the city cases cited; it was
rejected in Rice v. Clark County, supra, and allowed to intervene and control today's case.
Particularly puzzling is the scope of a county hospital's liability in tort. McKay v. Washoe
General Hospital, 55 Nev. 336, 33 P.2d 755, 36 P.2d 78, and Bloom v. So. Nev. Hospital, 70
Nev. 533, 275 P.2d 885, tell us that county hospitals, created pursuant to state statute, are
without legal entity and not subject to suit. McKay v. Washoe General Hospital, supra, did
not mention the immunity defense. Bloom v. So. Nev. Hospital, supra, did, but found it
unnecessary to decide the point. Then, in 1957 Hughey v. Washoe County, 73 Nev. 22, 23,
306 P.2d 1115, came before the court. It was a tort action by one who had fallen in the county
hospital. Relying on McKay v. Washoe General Hospital, supra, and Bloom v. So. Nev.
Hospital, supra, the trial court dismissed the case. The Supreme Court of Nevada reversed. It
held that the suit could be maintained against the county, even though not maintainable
against the hospital. Again, the court did not reach the immunity question, stating, Freedom
of the county from liability for any other reason is a question which has not yet been reached
in these proceedings. Placing these cases side by side for study is a rare experience. By
statute the exclusive control of the hospital is vested in its board of trustees. It cannot be sued.
However, the county which has no control over the hospital operation may be sued! One can
only speculate as to what might have occurred had the Hughey v. Washoe County case, supra,
come before the court a second time on the issue of governmental immunity as a defense.
The cases which I have mentioned, together with Gurley v. Brown, 65 Nev. 245, 193 P.2d
693, and Granite Oil v. Douglas County, 67 Nev. 388, 219 P.2d 191, 16 A.L.R.2d 1069,
constitute the precedent in Nevada. There may be one or two that I have not found. It is most
difficult, if not impossible, to square the results of the decided cases in this area of the law. It
appears that adherence to precedent is a lame reason for requesting an affirmance in this
case.
I turn now to discuss art. 4, 22 of the Nev. Const. The constitution refers to suits against
the state. It should have equal application to a suit against a county. It is a political
subdivision of the state, exercising only those powers granted by its parent. Yet, neither Rice
v. Clark County, supra, nor Granite Oil v. Douglas County, supra, discussed the point,
perhaps because it was not raised. Rice v. Clark County, supra, concerned county liability in
the performance of a governmental function, the maintenance of a county road. Granite Oil v.
Douglas County, supra, involved the county's liability acting proprietarily in the operation of
an airport. Suit was allowed in each instance. If the constitutional provision has the
substantive significance given it in Hill v. Thomas, supra, Taylor v. State and Univ., supra,
and the case at hand, it is exceedingly difficult to reconcile the results of these decisions with
those reached in the county cases. I believe that the constitutional provision must have a
different meaning and purpose.
As I read it, that provision does not itself create an immunity from suit. It does no more
than permit the legislature to prescribe a procedure for suit. Perhaps there are situations
(budgeting, investigation) concerning which the legislature would desire to have specific
procedural requirements in addition to those involved in an ordinary action at law. If the
legislature chooses to impose such additional requirements, the constitutional mandate is that
they have general application throughout the state and not be of a local nature. Indeed, the
legislature has, by general law, established additional procedural requirements for an action
against a city (NRS 268.020; Hart v. City of Las Vegas, 73 Nev. 29, 307 P.2d 617; City of
Reno v. Fields, 69 Nev. 300, 250 P.2d 140) or a county (NRS 244.245, 244.250; Rice v.
Clark County, supra), which requirements are applicable to a claim for damages sounding in
tort. And, of course, the legislature has passed a general law designating the procedure to be
followed in a suit against the state for services or advances (NRS 41.010-41.030).
Notwithstanding the legislative enactment of a general law establishing the additional
procedural requirements for suit, the defense of governmental immunity has invariably been
raised by a political subdivision when sued in tort, thus illustrating quite plainly that the
immunity rule is not related to the constitutional section under consideration.
has invariably been raised by a political subdivision when sued in tort, thus illustrating quite
plainly that the immunity rule is not related to the constitutional section under consideration.
Rice v. Clark County, supra; Granite Oil v. Douglas County, supra. It therefore seems to me
that the defense of sovereign immunity is not to be found in Nev. Const. art. 4, 22. As
stated by way of dictum in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 217, 11
Cal.Rptr. 89, 92, 359 P.2d 457, 460, while passing comment upon a similar provision of the
California constitution, If the section has any substantive significance it would appear to be a
waiver of immunity. On its face it seems to say that the state may be held liable when suits
are brought against it in accordance with a legislatively prescribed procedure. The defense of
governmental immunity from tort liability is a relic of the common law quite unrelated to the
constitutional provision in question. Having been judicially created, it may be judicially
abolished. Rice v. Clark County, supra.
The majority opinion in Rice v. Clark County, supra, did not mention the earlier cases of
McKay v. Washoe General Hospital, supra; Gurley v. Brown, supra; Hill v. Thomas, supra;
and Taylor v. State and Univ., supra. Each of them contained pointed language to the effect
that the legislature alone has the power to waive immunity. Though none of those cases were
suits against the county, I nonetheless can only read Rice v. Clark County, supra, as
overruling by necessary implication the earlier expressions contained in those opinions. I can
find neither rhyme, reason nor consistency, if a different meaning is given the Rice v. Clark
County opinion, supra.
It is, of course, true that the legislature has not executed its constitutional authority to
prescribe the procedure for a tort action against the state. However, that phase of the total
problem of immunity presented no difficulty to the court in deciding Hill v. Thomas, supra.
There the suit was against the state as surety on an official bond given under the bond trust
fund act. The court read art. 4, 22 of the constitution to mean that the state must consent
to suit before one may be maintained {which construction is contrary to mine).
the state must consent to suit before one may be maintained (which construction is contrary to
mine). It held that, by enacting the bond trust fund act, the state had by implication (not
expressly) consented to suit. It is of importance to note, however, that the bond trust fund act
did not provide a procedure for suit against the state. As to this aspect of the case, the court
said [70 Nev. 389, 400, 270 P.2d 179, 184], It should not be said, however, that failure to
provide a specific procedure results in depriving such person of his right to recover. The
procedure theretofore existing was resort to the courts by an action at law. So it is in this
case. The absence of a specific procedure for processing a tort claim against the state will not
preclude a claimant from court relief.
1

For the reasons mentioned, I conclude:
1. Nev. Const. art. 4, 22, applies not only to suits against the state, but also to suits
against its political subdivisions.
2. Nev. Const. art. 4, 22, neither creates governmental immunity from tort liability, nor
requires a consent to suit. It merely grants permissive authority to the legislature to prescribe
additional procedural requirements for suit, if done by a statute having general application
throughout the state.
3. The failure of the legislature to designate the procedure for a suit in tort against the
state does not preclude court relief.
4. Governmental immunity from tort liability is a relic of the common law, judicially
created, and may be judicially abolished.
5. That the recent decision in Rice v. Clark County, supra, by necessary implication,
overruled prior opinions sustaining the defense of governmental immunity and should be
followed here.
____________________

1
There appears to be no statute or rule designating who shall be served with process in a suit against the state,
other than in an action for services or advances authorized by law. NRS 41.010. NRCP 4(d)(5) expressly
provides for service of process in an action against a county, city or town. The state is not mentioned. This point
was not raised in either Hill v. Thomas, supra, or in the case before us. In each instance the state appeared
generally, pleading governmental immunity as an affirmative defense.
sustaining the defense of governmental immunity and should be followed here.
I would reverse the ruling below and permit the case to be tried on its merits.
____________
80 Nev. 84, 84 (1964) Alper v. Stillings
ARBY W. ALPER, Appellant, v. GEORGE L. STILLINGS and
ROBERT S. FADEM, Respondents.
No. 4662
February 18, 1964 389 P.2d 239
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Lessor's action to terminate lease. Lessee's assignees counterclaimed for damages from
alleged interference with possession by the lessor. In the trial court a jury returned a verdict in
favor of the lessee's assignees for $10,000 and the lessor appealed. The Supreme Court, Badt,
C. J., held that where there was no proof of actual damages from the lessor's alleged
interference with the lessee's possession, no instruction on punitive damages was asked for or
given and there was nothing in the jury's verdict to indicate that it intended the $10,000
verdict to be for punitive damages, the verdict could not stand.
Reversed.
George E. Franklin, Jr., of Las Vegas, for Appellant.
Deaner, Butler & Adamson, of Las Vegas, for Respondents.
Where contention that proper measure of damages was not loss of profits but decreased value of
leasehold was not pleaded and no jury instruction was requested, it could not be raised on appeal.
2. Damages.
Compensatory damages must be given before punitive damages are authorized.
3. Damages.
To justify money judgment, amount as well as fact of damage must be proved by substantial evidence;
proof of right to damages without proof of amount entitles plaintiff to nominal damages
only.
damages without proof of amount entitles plaintiff to nominal damages only.
4. Landlord and Tenant.
Where there was no proof of actual damages from lessor's alleged interference with possession of lessee's
assignees, no instruction on punitive damages was asked for or given and there was nothing in jury's verdict
to indicate that it intended $10,000 verdict to be for punitive damages, verdict of $10,000 for leasee's
assignees could not stand.
OPINION
Appellant commenced this action in the court below to terminate a lease from appellant to
respondents' assignor. Respondents counterclaimed for $6,000 damages for loss of business
suffered in the past three months by reason of the harassment of respondents and the
patrons of respondents in the leased premises, and in addition, for $50,000 punitive damages
by reason of appellant's willful and malicious interference with respondents' quiet and
peaceable possession.
The subject of appellant's complaint has become moot, as he sold the leased property
pending appeal. The case was tried to a jury.
Alper and one Posin, as co-owners of Bagdad Inn Motel, in Las Vegas, leased to Posin a
portion of the motel premises known as the Red Fez Bar. The respondents are Posin's
assignees. As the Motel had 76 rooms and only 62 parking spaces, the lease provided: It is
agreed that personnel and customers of lessee shall not use the parking facilities upon the
premises of the said motel. The lease also contained the following covenant: That so long
as the lessee complies with each and every term and condition of this lease agreement he shall
enjoy peaceable possession of the demised premises without interference or hindrance from
the lessor.
Appellant's complaint (now moot) has been based on the violation of the no-parking
covenant. The counterclaim is based on the violation of the covenant for peaceable
enjoyment. No other provisions of the lease are pertinent to the issues. The jury returned a
verdict in favor of respondents in the sum of $10,000, and the appeal is taken from the
judgment rendered on said verdict and from the court's order denying appellant's motion
for a new trial.
in favor of respondents in the sum of $10,000, and the appeal is taken from the judgment
rendered on said verdict and from the court's order denying appellant's motion for a new trial.
Appellant assigns two errors as follows:
(1) There was a manifest disregard by the jury of instruction No. 5 given them by the
court, in that there was no evidence whatsoever of any acts of appellant in violation of the
terms of the lease.
(2) There was a manifest disregard by the jury of instruction No. 6 given them by the
court, in that there was no evidence whatsoever that respondents suffered any damage by
reason of the acts of appellant.
It is unnecessary to pass on the first assignment of error, as we are satisfied that a reversal
on the second assignment must be had.
[Headnote 1]
There is a complete lack of support for the jury's assessment of $10,000 damages. Stillings
had been given and had studied Posin's figures showing Posin's gross income from the bar.
He was asked how they compared with his own (Stillings') gross and answered: [H]is
(Posin's) figures and my figures are almost identical. But respondents assert that the proper
measure of damages is not loss of profits but the decreased value of the leasehold, which had
several years to run. If so, there is still a complete lack of evidence as to any such decreased
value. Nor is appellant in position to raise this issue. It was not pleaded. No jury instruction
was requested. It is raised for the first time on appeal.
[Headnote 2]
Respondents contend further that appellant's attack on the lack of evidence to support a
verdict for compensatory damages, overlooks the element of exemplary damages. But
compensatory damages must be given before punitive damages are authorized. Miller v.
Schnitzer, 78 Nev. 301, 371 P.2d 824, and cases therein cited.
[Headnote 3]
It is established law in this state, as in most jurisdictions, that to justify a money judgment
the amount, as well as the fact of damage, must be proved; that there must be substantial
evidence as to the amount of damage, as the law does not permit arriving at such amount
by conjecture; that to prove a right to damages without proving the amount, entitles a
plaintiff to nominal damages only.
well as the fact of damage, must be proved; that there must be substantial evidence as to the
amount of damage, as the law does not permit arriving at such amount by conjecture; that to
prove a right to damages without proving the amount, entitles a plaintiff to nominal damages
only. Peterson v. Wiesner, 62 Nev. 184, 206, 146 P.2d 789.
[Headnote 4]
Nor would a judgment for nominal damages support the $10,000 verdict as punitive
damages. No instruction on punitive damages was asked for or given, and there is nothing in
the jury's verdict to indicate that it intended the $10,000 verdict to be for punitive damages. In
Jefferson v. Joiner, 75 Nev. 207, 337 P.2d 622, in which there was no evidence of proved
value of services, if any, of decedent to his beneficiaries' and where the record tended to
show that the financial condition of the beneficiaries had actually improved since and as a
result of the death of the decedent, and that the judgment would be error if it assessed
anything more than nominal damages, this court said:
In our view it is not possible, in the light of the record, to read the judgment as an award
of exemplary damages. * * * Nowhere in the record can we find an expressed intention on the
part of the judge to award or take into consideration exemplary damages. * * * If, however, it
was the intention of the trial court to award exemplary damages, the disproportion between
nominal pecuniary damages and the total judgment is so great that an intention to make such
an exemplary award must, under these circumstances, expressly appear, since it cannot
reasonably be presumed.
Respondents rely upon the following language in Brown v. Lindsay, 68 Nev. 196, 228
P.2d 262: The rule against the recovery of uncertain damages generally is directed against
uncertainty as to the existence or cause of damage rather than as to measure or extent. Even
if this language could be construed to restrict the rule of uncertainty to the existence rather
than to the measure of damage it would not serve respondents, as the very existence of
damage is uncertain here. The compensatory damage claim was for lost profits.
compensatory damage claim was for lost profits. But so far as concerns respondents, the Red
Fez Bar was a new business operation. We held in Knier v. Azores Constr. Co., 78 Nev. 20,
368 P.2d 673, that a claim for loss of profits could not be sustained under such circumstances.
The judgment is reversed with costs. The reversal of the judgment leaves appellant
unprejudiced by the denial of his motion for new trial. The appeal from the order denying
new trial is accordingly dismissed.
____________
80 Nev. 88, 88 (1964) Sierra Pacific Power Co. v. Nye
SIERRA PACIFIC POWER COMPANY, Appellant, v. EARL
NYE and GOLDA NYE, Husband and Wife, Respondents.
No. 4654
EARL NYE and GOLDA NYE, Husband and Wife,
Appellants, v. SIERRA PACIFIC POWER COMPANY, Respondent.
No. 4655
February 19, 1964 389 P.2d 387
Appeals from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Action by operators of trailer park to recover alleged overpayments for electric power
which they had purchased at rates higher than those to which they were entitled. The lower
court allowed recovery for overpayments made within four years of filing of the complaint
but refused to allow interest thereon and both parties appealed. The Supreme Court,
McNamee, J., held that the operators were entitled to recover the overpayments, that recovery
of overpayments made more than four years prior to filing of complaint was properly barred,
but that plaintiffs were entitled to recover interest on each recovered overpayment from the
date thereof.
Judgment affirmed in part, reversed in part, and cause remanded with directions.
Wines, D. J., dissented.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Sierra Pacific Power
Company.
Goldwater, Taber and Hill, and Wayne L. Mortimer, of Reno, for Earl Nye and Golda
Nye.
1. Electricity.
Trailer park operators who purchased electric power from utility and resold it to renters of its trailer
spaces did not qualify as a public utility from which the electric utility could legally withhold service.
NRS 704.320.
2. Electricity.
Trailer park operators who were entitled to a lower K rate in purchasing electric power from electric
utility for resale to renters of spaces in the trailer park but had paid the higher C rate which utility had
charged were entitled to a refund of the overpayments. NRS 704.320.
3. Electricity.
Absence of express finding of fraud in electric customers' action for recovery of alleged overpayments for
electric power purchased at rates higher than those to which customers were entitled implied a finding that
no fraud on the part of the electric utility was present.
4. Limitation of Action.
Action by trailer park operators to recover alleged overpayments for electric power which operators had
purchased at rates higher than those to which they were entitled was barred as to the payments made more
than four years prior to filing of the complaint where fraud was not alleged and where operators could have
discovered the existence of the power rate by reasonable inquiry. NRCP 9(b); NRS 11.190, subd. 3(d).
704.320.
5. Interest.
Trailer park operators, in recovering overpayments for electricity which they had paid for at rates higher
than those for which they could qualify, were entitled to interest on each recovered overpayment from the
date of such overpayment. NRS 99.040, subds. 1, 4.
OPINION
This is an action to recover certain sums of money allegedly overpaid by the Nyes to the
Sierra Pacific Power Company.
Power Company. The case was submitted to the lower court on stipulated facts. The court
adopted said stipulated facts as its findings of fact and concluded therefrom that the Nyes
were entitled to judgment in the sum of $8,484.84. It refused to allow the sum of $4,034.77,
which was the amount of the overpayment made more than four years prior to the filing of the
complaint, and it refused to allow the Nyes any interest.
The Power Company appealed from the judgment and the Nyes cross-appealed from the
judgment denying them a recovery of said $4,034.77 and denying them interest.
The agreed facts are as follows (the Nyes will be referred to as plaintiffs and the Power
Company as defendant):
Plaintiffs, since May 15, 1955, have been the owners of the Pony Express Trailer Park in
Sparks, consisting of 110 rental spaces for trailers, plus buildings incidental thereto.
Defendant is a public utility authorized by the Public Service Commission to sell electricity to
consumers.
Pursuant to regulations, defendant filed its rates for the sale of electricity with the Public
Service Commission, among which were a Schedule C rate and a Schedule K rate. Plaintiffs'
predecessor in interest, Harold's Club, was charged the K rate. When plaintiffs purchased the
trailer park on May 15, 1955, the defendant changed the trailer park to the C rate and
continued to charge for power used by plaintiffs under that rate until May 5, 1961, when
plaintiffs made application to defendant to be placed under Schedule K. They were placed
under Schedule K effective as of that date. The difference between the C and K rates for the
amount of power used by the plaintiffs between June 1, 1955 and May 5, 1961 amounted to
$12,519.61, of which $4,034.77 was for the power used during the period of more than four
years prior to the filing of the complaint. Upon defendant's refusal to reimburse the plaintiffs
for any part of this difference, this action was commenced.
At all times prior to April 4, 1961 defendant had had an unwritten policy which it had
formulated and adopted of not serving trailer parks under its Schedule K;1 no rule or
regulation authorizing or approving such a policy had been filed with the Public Service
Commission, nor has said Commission any rule denying Schedule K to trailer parks.
of not serving trailer parks under its Schedule K;
1
no rule or regulation authorizing or
approving such a policy had been filed with the Public Service Commission, nor has said
Commission any rule denying Schedule K to trailer parks.
On April 4, 1961 the case of Eikelberger v. Sierra Pacific Power Company was decided by
the Commission. In that case it was held that the owner of a trailer park was entitled to
Schedule K if the park had a total connected load exceeding 20 horsepower. Until this
decision, plaintiffs did not know of the existence of the K schedule, nor of defendant's
unwritten and unfiled rule or policy. At all times since plaintiffs purchased the trailer park
they have owned the transformer located on their property and have had a total connected
load in excess of 20 horsepower.
The power sold by defendant to plaintiffs and delivered at plaintiffs' trailer park was by
plaintiffs resold to various trailer owners in their park. Plaintiffs have never secured a
certificate of public convenience from the Public Service Commission.
2

In its written decision the lower court after reciting the stipulated facts and considering the
briefs determined the five points raised by the defendant as hereinafter stated.
1. Is a power company bound to sell power to others for resale?
The court answered this question in the affirmative where the resale is not to the public but
only to the buyer's tenants.
2. Where there are two optional rates is a public utility bound to select a rate most
favorable to the consumer?
The court answered this Yes, stating that the plaintiffs were entitled to the K rate as a
matter of right, because they owned their transformer and the C rate is not applicable where
the consumer owns the transformer.
____________________

1
Defendant justifies the allowance of the K rate to Harold's Club, the predecessor in interest of the plaintiffs,
on the ground that Harold's Club was serving both the trailer park and a separated motel on a single billing.

2
Defendant concedes that it is not important whether or not the plaintiffs were technically a public utility.
is not applicable where the consumer owns the transformer.
3. What damages are the plaintiffs entitled to recover?
The damages are the difference between the K and C rate.
4. Is the four-year statute of limitations applicable? Yes.
5. Is interest allowable on the recoverable overpayment?
The lower court refused to allow interest.
The same five points are urged on these appeals.
[Headnote 1]
The contention that defendant was not bound to sell its power to the plaintiffs because they
intended to resell the same to their tenants is without merit. It was customary and usual for
defendant to serve most trailer parks by delivering electricity to the owner and not by serving
each trailer individually. In serving the individual trailer, the owner of the trailer park could
charge a rate higher than that paid to the utility, not in excess however of the maximum rate
on resale fixed by the rules of the Public Service Commission.
Under the decision in the Eikelberger case the owner of a trailer park was and is entitled to
Schedule K if qualified as a K user. At all times since acquiring the trailer park, plaintiffs
were qualified as K users, having had a total connected load exceeding 20 horsepower, and
having been the owners of the transformer on their property, the high voltage service line, and
the underground lines to the individual units.
As a result of the Eikelberger decision all trailer courts in the Reno-Sparks area were
placed under Schedule K. Thus, there can be no question that a power company must sell to
those trailer park owners qualified as K users under Schedule K even though there is a resale
of the power to the trailer park tenants. The plaintiffs by restricting the resale of power to
their tenants only did not become competitors of the utility. In fact, in making such
distribution of this power they accommodated the utility by assuming the duties of the
maintenance of the individual meters and the connecting lines thereto, the reading of the
meters, and the billing and collection of charges, all of which otherwise would have been
the obligations of the defendant.
maintenance of the individual meters and the connecting lines thereto, the reading of the
meters, and the billing and collection of charges, all of which otherwise would have been the
obligations of the defendant. Authorities cited by the defendant which hold that a utility is not
required to sell its product to a competitor for resale by the latter to other parties are not
applicable.
Defendant contends that NRS 704.320 contemplates that where one purchases power for
resale it would be under contract and not according to the regular rate. This statute is
restricted in its application to public utilities and we hold it was not intended to apply to
trailer courts which resell power to their tenants only.
It is questionable whether the two schedules were optional. Assuming however that a
trailer park owner had the option of selecting either schedule, it would then become the duty
of the utility to inform the customer of the optional schedules in order to enable the customer
to select the schedule more beneficial to him. Here the utility acted wrongfully in making the
selection itself, a selection which resulted in a material benefit to the utility, without notifying
the plaintiffs of their right to a schedule more advantageous to them.
[Headnote 2]
Inasmuch as plaintiffs were entitled to the K rate as a matter of right when they were
qualified K users, the charges made by the defendant under Schedule C were improper, and
the lower court correctly determined that the payments made thereunder constituted
overpayments to the extent of the difference between the K and C rates. Plaintiffs therefore
were entitled to judgment for a refund of such overpayments if not barred from recovery by
the statute of limitations.
If plaintiffs had paid under the K rate rather than under the C rate, it is conceded that their
payments would have been $12,519.61 less for the period between May 15, 1955 and May 5,
1961, $4,034.77 of which was received by the defendant more than four years prior to the
filing of the complaint.
Plaintiffs claim that they did not discover that they were entitled to the Schedule K rate
until after the Eikelberger decision, and that therefore under paragraph {d) of subsection 3
of NRS 11.190, their cause of action is not deemed to have accrued until such discovery.
Eikelberger decision, and that therefore under paragraph (d) of subsection 3 of NRS 11.190,
their cause of action is not deemed to have accrued until such discovery. It is conceded that if
plaintiffs had made a demand for the K rate prior to the Eikelberger decision, it would have
been denied by the defendant. In this connection, there was no showing that the defendant
knew or did not know that any cause of action had accrued in favor of the plaintiffs until after
the Eikelberger decision.
Paragraph (d) of subsection 3 of NRS 11.190 is applicable to a party seeking relief on the
ground of fraud. This, the plaintiffs concede. But they argue that the conduct of the defendant
in placing plaintiffs under Schedule C when they were eligible for Schedule K and
maintaining an unwritten policy of not serving trailer parks under Schedule K constituted
fraud.
[Headnotes 3, 4]
The complaint was not based on fraud; an overcharge and overpayment are alleged. See
NRCP 9(b). It does not appear that the question of fraud was presented to the trial court.
3
In
any event neither in its findings nor in its written opinion did the trial court mention fraud.
The absence of such an express finding implies a finding that there was no fraud if the
question had been presented to the trial court. Cf. Kernan v. Kernan, 78 Nev. 93, 369 P.2d
451. Furthermore, as evidence of such an implied finding, the lower court, in determining that
the four-year statute of limitations was applicable, cited 54 C.J.S., Limitations of Actions
205, at 216. This section states in part: Except where by statute limitations do not begin to
run until knowledge of the cause of action is acquired by the person in whom the cause of
action lies, and except where there has been a fraudulent concealment of the cause of action
by the person liable, as discussed infra 206, the rule is generally established that mere
ignorance of the existence of the cause of action or of the facts which constitute the cause
will not postpone the operation of the statute of limitations; the statute runs from the
time the cause of action first accrues notwithstanding such ignorance, if the facts may be
ascertained by inquiry or diligence, or if the ignorance is not willful and does not result
from negligence or lack of diligence.
____________________

3
In Arley v. Liberty Mut. Fire Ins., 80 Nev. 5, 388 P.2d 576, decided January 23, 1964, and in the cases
therein cited, this court has held that a point not raised in the trial court may not be raised for the first time on
appeal.
of the existence of the cause of action or of the facts which constitute the cause will not
postpone the operation of the statute of limitations; the statute runs from the time the cause of
action first accrues notwithstanding such ignorance, if the facts may be ascertained by inquiry
or diligence, or if the ignorance is not willful and does not result from negligence or lack of
diligence. The reason for the rule seems to be that in such cases ignorance is the result of
want of diligence and the party cannot thus take advantage of his own fault. The court
further determined that plaintiffs by some inquiry should have been able to ascertain that
there was a Schedule K rate, particularly when the trailer court was operating under that
schedule up to the time the plaintiffs purchased it. Although the facts differ in other respects,
this determination in itself distinguishes the present case from El Paso Electric Co. v.
Raynolds Holding Co., 128 Tex. 495, 100 S.W.2d 97, 108 A.L.R. 744. In that case the action
was brought to recover overcharges for electric service rendered from August 1, 1921 to
August 1, 1932. The action of the trial court in sustaining the plea of limitation as to all items
of overcharge prior to the two-year limitation period was reversed. The jury expressly had
found that the plaintiffs could not by the exercise of reasonable diligence have discovered the
overcharge. The appellate court held that the jury's express finding that the plaintiffs could
not by the exercise of reasonable diligence have discovered the overcharge was in harmony
with and supported by the facts and circumstances.
The lower court properly refused to order repayment of the $4,034.77, which constituted
the overcharge for the period of more than four years prior to the filing of the complaint.
[Headnote 5]
The only remaining question is whether the plaintiffs are entitled to interest on the amount
of the judgment, to wit, on $8,484.84.
In Nevada the award of interest is governed by NRS 99.040 which, insofar as it is
applicable, provides: "When there is no express contract in writing fixing a different rate
of interest, interest shall be allowed at the rate of 7 percent per annum upon all money
from the time it becomes due, in the following cases:
When there is no express contract in writing fixing a different rate of interest, interest
shall be allowed at the rate of 7 percent per annum upon all money from the time it becomes
due, in the following cases:
1. Upon contracts, express or implied, other than book accounts.
* * * * *
4. Upon money received to the use and benefit of another and detained without his
consent.
The amount of overpayment within the four years prior to the filing of the complaint was
definitely ascertainable by mere mathematical calculation, being the difference between the K
and C rates. The agreed statement of facts fixed this amount at $8,484.84. We have
determined that the plaintiffs are entitled to be reimbursed in this amount. Whether the
defendant held these several overpayments under an implied contract to repay the money
improperly received as provided in subsection 1 of NRS 99.040 or as money received to the
use and benefit of the plaintiffs and detained without their consent as provided in the
fourth subsection thereof, or as both, is immaterial. Plaintiffs were entitled to repayment by
the defendant on the date each overpayment was made, and therefore they are entitled to the
statutory rate of interest from each of such dates. Cf. Dollar Investment Corp. v. Modern
Market, Inc., 77 Nev. 393, 365 P.2d 311.
The judgment in the sum of $8,484.84 in favor of the plaintiffs is affirmed. The judgment
in denying the plaintiffs the additional sum of $4,034.77 is affirmed. Insofar as the judgment
omits interest on the recoverable amount of overpayments, it is reversed. The cause is
remanded to the lower court with directions to ascertain the amount of interest which has
accrued on the $8,484.84 from the date of each overpayment to the date of the judgment, and
to modify its judgment so as to include such amount. Costs to respondents and
cross-appellants.
Zenoff, D. J., concurs.
Wines, D. J., dissenting:
The Second Claim for Relief is stated in terms of unjust enrichment, the Third Claim is for
overcharges. The facts alleged in the First Claim for Relief and the facts settled by the
Stipulation of Facts between these parties, have been recited in the majority opinion, except
specific mention is not therein made of these factsthere were no negotiations between these
parties when the changeover was made; the Nyes were not informed by an agent of the Power
Company concerning rate schedules, nor of the rate schedules assigned in charging the Nyes'
predecessor, nor of the Power Company's policy regarding trailer parks. It is conceded that in
neither the Stipulation of Facts or the Complaint is there any mention of fraud, per se. It does
not appear affirmatively from the Record that the trial court was asked to find fraud, nor that
fraud was considered by the trial court. But if the issue was before the trial court by virtue of
the settled facts, and I think it was, the rule that a point not raised in the trial court cannot be
raised on appeal is not properly applied in this instance. The action was argued here without
objection by the Power Company on the theory of fraud. If the import of settled facts was not
discerned by the trial court it is error.
But it may be that I mistake the sense of the majority opinion. After referring to the rule of
timely submission of theory we find thisThe absence of such an express finding implies a
finding that there was no fraud if the question had been presented to the trial court. One
should not question serendipity. Instead I borrow the majority conclusion that it is the duty of
the utility to inform the consumer on matters affecting his interest.
If the rule of the trial court is to be set aside, it must be held as a matter of law that the
utility owes the consumer a duty to inform the consumer and to assign the rate he selects as
favorable to him. Concealment of a material fact like a misrepresentation of a fact amounts to
fraud, if there is an obligation to communicate. The obligation arises from the relationship of
the parties, such as when a confidential relation exists, or it may result from the peculiar
and exclusive knowledge of one of the parties.
parties, such as when a confidential relation exists, or it may result from the peculiar and
exclusive knowledge of one of the parties. See Words and Phrases, Fraud, Vol. 17-A at page
34; and the same volume at page 127 on the subject of Fraudulent Concealment. A number of
jurisdictions, as in Nevada since 1962 by rule of the Public Service Commission, have
resolved this issue in favor of the consumer. See El Paso Electric Co. v. Raynolds Holding
Co., 128 Tex. 495, 100 S.W.2d 97, 108 A.L.R. 744; 38 A.L.R. 1063; and Rules of the Public
Service Commission of Nevada for 1962.
The duty to the consumer is found in the public nature of a utility enterprise and the fact
that the utility has a knowledge of rate schedules not within the reasonable reach of the
consumer. If there is any validity in these assigned reasons for abandoning the maxim of
caveat emptor, though a number of jurisdictions have refused to do so, the common law is
doctrinaire in this situation. We know by the public law that utilities are invested with certain
powers and charged with certain duties to the consumer. If we are honest we will confess our
bewilderment with the rate schedules here studied and grant that comprehension of the
schedules requires esoteric knowledge. It is manifest that the utility comes to the arena
especially well armed.
This is a general policy, but it should be noted that there is a fact peculiar to this action.
The allusion is, of course, to be adopted but undeclared policy of assigning a specified rate
schedule to a type of enterprise. Our Public Service Commission exists for the purpose of
passing upon such policies and it is the duty of the utility to submit the policy for approval
before acting upon it. The overcharge, or discriminatory rate, is not in this instance the
consequence of an innocent unilateral mistake but of design.
I would therefore reverse the judgment of the trial court directing that judgment be entered
for the plaintiff in the full amount prayed for together with the interest as prayed for.
Badt, C. J., and Thompson, J., being disqualified, the Governor commissioned Honorable
Taylor H. Wines, Judge of the Fourth Judicial District Court, and Honorable David Zenoff,
Judge of the Eighth Judicial District Court, to sit in their places.
Judge of the Fourth Judicial District Court, and Honorable David Zenoff, Judge of the Eighth
Judicial District Court, to sit in their places.
____________
80 Nev. 99, 99 (1964) Dredge Corp. v. Wells Cargo, Inc.
DREDGE CORPORATION, a Nevada Corporation, Appellant,
v. WELLS CARGO, INC., Respondent.
No. 4663
February 20, 1964 389 P.2d 394
Appeal from summary judgment of the Eighth Judicial District Court, Clark County;
David Zenoff, Judge.
Action by owner of placer claims against corporation which allegedly agreed to do
assessment and improvement work on each claim for declaration that owner was not required
to convey undivided half interest in patented claims to corporation, that corporation be
required to account for profits, and that corporation be required to pay damages for breach of
contract. The trial court granted summary judgment to the defendant, and plaintiff appealed.
The Supreme Court, Thompson, J., held that the request for a declaration that owner was not
liable to convey undivided half interest because corporation had failed to perform with
respect to unpatented claims was not cause of action within statute regarding
commencement of civil actions, and six-year statute of limitations was not applicable to bar
relief sought.
Summary judgment reversed.
Deaner, Butler & Adamson, of Las Vegas, and Abraham Marcus, of Beverly Hills,
California, for Appellant.
Guild, Busey & Guild and David W. Hagen, of Reno, for Respondent.
1. Declaratory Judgment.
Both declaratory and coercive or executory relief may be sought and granted in a single action.
2. Limitation of Actions.
Statute of limitations has application to time within which civil actions may be commenced after cause of
action shall have accrued. NRS 11.010.
Request for declaration that owner was not liable to convey undivided half interest in patented placer
mining claims to corporation because corporation had not done assessment and improvement work was not
cause of action within statute regarding commencement of civil actions, and six-year statute of
limitations was not applicable to bar relief sought. NRS 11.010, 11.190, subd. 1(b).
Limitations do not run against defenses; the statute of limitations is available only as shield, not as a
sword.
Claim for coercive relief is subject to bar of limitations. NRS 11.010.
6. Judgment.
Evidence raised fact question whether time for corporation's performance of assessment and improvement
work on placer claims had been extended to date within six years of commencement of action by owner of
claims against corporation for accounting for profits and for breach of contract, precluding summary
judgment for corporation on ground that action was barred by statute of limitations. NRS 11.190, subd.
1(b).
OPINION
The appeal is from a summary judgment granted to the defendant Wells Cargo, Inc. in a
suit for declaratory and other relief commenced by Dredge Corporation. The lower court held
that the six-year statute of limitations (NRS 11.190 (1) (b)) was a bar. We reverse for the
reasons stated.
Dredge owned 26 unpatented placer mining claims in Clark County.
1
On May 12, 1954 it
entered into an agreement with Wells which obligated Wells to do the assessment work and
some additional improvement work on each claim, and also to extract at least 500 cubic yards
of gravel from each of the claims within 18 months thereafter, that is, by November 12, 1955.
2
Upon completion of the work by Wells, Dredge was to apply for patents.
____________________

1
Three claims were withdrawn by the United States from the application of the placer mining laws, thereby
reducing from 29 to 26 the number of claims involved in this suit.

2
The agreement of May 12, 1954 was twice supplemented to include additional claims. Otherwise the terms
remained the same.
for patents. If patents were issued, Dredge became obligated to convey to Wells an undivided
one-half interest in the patented claims. The agreement further provided (paragraph 8) that
Wells shall have the right to remove gravel from any of said claims without limit and
without royalty; and paragraph 11 read, It is further agreed that if said Wells Cargo, Inc.
fails to perform any condition, covenant, term or agreement herein at the time and in the
manner herein set forth after five days written notice of such failure, then this agreement is
automatically cancelled, without notice, legal action or other action, whereupon Dredge
Corporation shall have the right to remove said Wells Cargo, Inc., its employees and agents,
from said premises with or without legal process.
[Headnote 1]
On August 4, 1960, patents were issued to Dredge for five of the claims. By its amended
complaint, Dredge acknowledged that Wells had fully performed its contractual duties as to
the five patented claims. However, it charged that Wells had breached the contract with
respect to the remaining 21 claims for which patents were not issued. The request for relief
was threefold: First, Dredge sought a court declaration of nonliability, i.e., that it was not
required to convey to Wells an undivided one-half interest in the patented claims, because
Wells had failed to perform with respect to the 21 claims remaining unpatented; second, that
Wells be required to account for profits realized from its gravel pit operations on the patented
claims; and third, damages for breach of contract.
3

The lower court treated the action as one for damages for breach of contract. It was
convinced from the record (amended complaint, depositions and affidavits) that Wells had
breached the contract at a time more than six years before this suit was commenced, and
concluded that this action in all of its interrelated aspects was barred by limitations.
____________________

3
Both declaratory and coercive or executory relief may be sought and granted in a single action. See Annot.,
155 A.L.R. 501; Nev. Management Co. v. Jack. 75 Nev. 232, 338 P.2d 71: cf. Woods v. Bromley, 69 Nev. 96,
241 P.2d 1103; Kress v. Corey, 65 Nev. 1, 189 P.2d 352.
that this action in all of its interrelated aspects was barred by limitations.
[Headnotes 2-4]
The statute of limitations has application to the time within which civil actions may be
commenced after the cause of action shall have accrued. NRS 11.010. The request by
Dredge for a declaration of nonliability (that it need not convey to Wells an undivided
one-half interest in the patented claims) does not present a cause of action in the sense that
term is used in NRS 11.010; (See Luckenbach Steamship Co. v. United States, 2 Cir., 312
F.2d 545, for a lucid discussion of this problem) that is to say, Dredge does not contend that it
has a cause of action not to conveyrather, its position is that it has a valid reason or
defense for not doing sonamely, Wells' breach of its obligation to perform under the
contract. The subject matter of its request, therefore, is in the nature of a defense.
4
Limitations do not run against defenses. The statute is available only as a shield, not as a
sword. Northern Pacific Railway Co. v. United States, 10 Cir., 277 F.2d 615, 623, 624. We
hold that the lower court erred in applying the statute of limitations to the request by Dredge
for a declaration of nonliability.
[Headnotes 5, 6]
Of course a claim for coercive relief (damages and an accounting) is subject to the bar of
limitations. However, in this case, the applicability of the statute of limitations depends upon
a prior determination of material questions of disputed fact which should have been reserved
for decision after a full trial. Had the record (affidavits and depositions) before the trial court
shown, without dispute, that Wells had breached the agreement by failing to perform the
work required by November 12, 1955, then the claim of Dredge, at least for the coercive
relief of contract damages (though perhaps not for an accounting), would have been barred
by the six-year statute, for this suit was not started until November 30, 1962.
____________________

4
By way of illustration: Should Wells seek to compel Dredge to specifically perform its covenant to convey
an undivided one-half interest in the patented claims, Dredge could present as a defense thereto its claim that
Wells had materially breached the agreement, thereby excusing Dredge from its duty to convey.
for an accounting), would have been barred by the six-year statute, for this suit was not
started until November 30, 1962. However, this issue was disputed. Dredge contended that
the time for Wells' performance was extended by mutual agreement to November 19, 1962,
which position, if proved, would effectively nullify the bar of limitations. Wells, on the other
hand, took the stand that, if the contract was breached, the breach occurred at a time more
than six years before this suit was started, with the consequence that limitations barred
coercive as well as declaratory relief. There was no express, written agreement extending the
time for Wells' performance. Whether an implied extension agreement did in fact happen will
depend upon the trial court's construction of evidentiary matter of various sorts to be received
and evaluated at trial. Material issues of fact remain for resolution. Parman V. Petricciani, 70
Nev. 427, 272 P.2d 492. Accordingly, the summary judgment precluding trial on, the coercive
relief sought was also erroneously entered.
Thus, the summary judgment may not stand as to any of the relief soughtdeclaratory or
coercive. The former, because it is not subject to the bar of limitations as a matter of law; the
latter, because disputed fact issues must first be decided before the applicability of limitations
is placed into focus.
The record shows that this case will present many complicated fact issues for resolution.
For whatever assistance it may be to the trial court and counsel, we wish to direct attention to
some of them. Does the evidentiary material upon which Dredge relies to show an extension
of time for Wells' performance, establish an agreed extension, or a unilateral waiver of the
time requirement by Dredge, or neither? What is the meaning to be given paragraph 8 of the
agreement? Do the words, Wells shall have the right to remove gravel from any of said
claims without limit and without royalty apply only to the removal of gravel from claims
before patents were issued, or does it have application thereafter? Is the agreement of May 12,
1954 (as supplemented) to be treated as an entire or a divisible contract? Will the failure of
Wells to fully perform required work on some of the claims preclude its acquisition of an
interest in claims upon which it did perform and for which patents were issued?
failure of Wells to fully perform required work on some of the claims preclude its acquisition
of an interest in claims upon which it did perform and for which patents were issued? The
agreement is silent as to these matters. Evidence will be needed to establish the parties'
intentions. A full trial is required.
Reversed.
____________
80 Nev. 104, 104 (1964) Barney v. County of Clark
KEVIN SCOTT BARNEY, a Minor, by BARBARA ANN BARNEY, His Guardian Ad
Litem, Appellant, v. COUNTY OF CLARK, State of Nevada, Respondent.
No. 4664
February 21, 1964 389 P.2d 392
Appeal from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Minor's wrongful death action against county. The lower court entered a judgment
dismissing action and the minor appealed. The Supreme Court, McNamee, J., held that statute
requiring that claim be presented to county before bringing suit and that unaudited claims be
presented for allowance within six months from time due were applicable to minor's claim
against county for wrongful death and were not unconstitutional as applied to minor.
Affirmed.
Herman M. Adams, of Las Vegas, and Dambach & Dambach, of Canoga Park, California,
for Appellant.
Simgleton and DeLanoy, and Rex A. Jemison, of Las Vegas, for Respondent.
1. Death.
Upon death of father an estate resulted to minor child under wrongful death statutes in nature of cause of
action against wrongdoer.
2. Counties.
Statute requiring presentation of claim against county prior to bringing of suit is not in nature of statute of
limitations, but one dealing with performance of necessary condition precedent to suit. NRS 244.245.
3. Counties.
Where statute limiting time for presentation of claims to county board makes no exceptions as to minors,
minor is not excused from filing claim in manner provided by statute. NRS 244.245.
4. Counties.
Minor child, who was less than two years old at time of father's death, was not excused from presenting
claim to county for father's wrongful death as condition precedent to bringing suit against county. NRS
244.245, 244.250.
5. Counties.
Right to sue county may be granted upon such conditions as legislature sees fit to impose.
6. Counties.
Statute requiring presentment of all claims against county for allowance prior to bringing of suit and
statute requiring all unaudited claims to be presented within six months from time claims become due and
payable are not unconstitutional when applied to bar suit of minor who was less than two years old at time
of his father's death allegedly due to negligence of county. NRS 244.245, 244.250.
OPINION
This is a wrongful death action commenced by the minor son of decedent. The appeal is
concerned only with the parties named above.
Decedent was a passenger in a private aircraft which collided with a power pole on the
county airfield in Las Vegas. The county is charged with negligence of failing to warn of a
known dangerous condition and with violation of the Federal Aviation Agency lighting
regulations and failure to warn of such violation by others.
The County of Clark's motion for an involuntary dismissal of the action was granted upon
the ground that the complaint failed to allege that plaintiff had filed a certified claim with the
board of county commissioners and with the county auditor as required by NRS 244.245 and
244.250. The motion was opposed by the plaintiff on the ground that his minority (he was
less than two years old at the time of his father's death) created an excuse for his failure
to comply with said statutes.
than two years old at the time of his father's death) created an excuse for his failure to comply
with said statutes.
[Headnote 1]
Upon the death of his father an estate resulted to the plaintiff under our wrongful death
statutes in the nature of a cause of action against the wrongdoer. If the county is considered
the wrongdoer, whether alone or in conjunction with another, and suit is contemplated against
the county, NRS 244.245 and 244.250 become applicable.
NRS 244.245 provides in part: Condition precedent to suit against county for claim. 1.
No person shall sue a county in any case for any demand, unless he shall first present his
claim or demand to the board of county commissioners and the county auditor for allowance
and approval, and if they fail or refuse to allow the same, or some part thereof, the person
feeling aggrieved may sue the county.
[Headnote 2]
We are not concerned therefore with a statute in the nature of a statute of limitations;
rather we are concerned with the performance of a necessary condition precedent to suit.
Peoples v. City of Valparaiso, 178 Ind. 673, 100 N.E. 70; City of Birmingham v. Weston, 233
Ala. 563, 172 So. 643, 109 A.L.R. 970; cf. Hart v. City of Las Vegas, 73 Nev. 29, 307 P.2d
617. The requirement of the filing of a claim does not relate to the commencement of the
action, but timely filing is a condition precedent to the right to maintain an action. Kelleher
V. Ephrata School District, 56 Wash.2d 866, 355 P.2d 989.
NRS 12.090 empowers either the heirs or the personal representative of the decedent for
the benefit of his heirs to maintain an action for wrongful death.
An infant of such tender years of course could perform the condition precedent to suit only
through a legal representative. There is nothing in the record to suggest that a general
guardian could not have been appointed for the estate of this minor. His present guardian ad
litem is his mother who was appointed as such at the time the suit was commenced.
guardian ad litem is his mother who was appointed as such at the time the suit was
commenced. Nor does it appear that a personal representative of the decedent could not have
been appointed.
The two questions presented on this appeal are:
1. Is a minor excused from complying with the provisions of NRS 244.245?
2. Are NRS 244.245 and 244.250 constitutional as applied to a minor?
[Headnotes 3-5]
Although there are cases to the contrary, the majority rule, which we adopt, is that where
the statute makes no exception as to minors, a minor is not excused from filing his claim in
the manner provided by the statute, and such requirement is a prerequisite to suit. Artukovich
v. Astendorf, 21 Cal.2d 329, 131 P.2d 831. The right to sue a county could be withheld
altogether by the legislature. It therefore may be granted upon such conditions as the
legislature sees fit to impose. Brown v. Board of Trustees, etc., 303 N.Y. 484, 104 N.E.2d
866, 34 A.L.R.2d 720.
NRS 244.250 requires all unaudited claims against a county to be presented to the board of
county commissioners within six months from the time such claims become due and payable.
1

[Headnote 6]
Appellant contends that NRS 244.245 and 244.250 are unconstitutional if applicable to a
minor who was eleven months and six days old at the time of the death of decedent. We reject
this contention.
In holding that a statutory provision requiring the service of a notice of claim as a
condition precedent to suit against a municipality is constitutional, the New York Court of
Appeals in Brown v. Board of Trustees, etc., supra, said: Manifestly the objects sought to be
attained by such enactments are not dependent upon the age of the claimant nor do they vary
with the claimant's age."
____________________

1
Respondent's complaint is not that the claim was not filed within six months, but that no claim was ever
filed.
age of the claimant nor do they vary with the claimant's age. See also Peoples v. City of
Valparaiso, supra; Annot., 34 A.L.R.2d 730.
Affirmed.
____________
80 Nev. 108, 108 (1964) Silver Dollar Club v. Cosgriff Neon Co.
SILVER DOLLAR CLUB, a Corporation, Appellant, v. THE COSGRIFF NEON
COMPANY, INC., a Nevada Corporation, Respondent.
No. 4672
March 4, 1964 389 P.2d 923
Appeal from the Second Judicial District Court, Washoe County; Thomas O. Craven,
Judge.
Breach of contract action. The lower court rendered judgment for plaintiff, and defendant
appealed. The Supreme Court, McNamee, J., held that evidence established that written
contracts for installation of canopy and neon display had been orally modified and that such
contracts, as modified, had been performed by plaintiff.
Affirmed.
Springer & Newton, of Reno, for Appellant.
A. D. Jenson, of Reno, for Respondent.
1. Trial.
By allowing oral evidence to remain in record, court impliedly, overruled objection thereto.
2. Evidence.
Parol evidence is proper to show subsequent oral agreement to rescind or modify written contract.
3. Contracts.
Contract provision that agreement could be terminated or modified and user released from liability
thereunder only by written endorsement of owner was for benefit of owner only and could be waived by
owner.
4. Contracts.
Even written contract provision against oral modification may be modified by subsequent oral agreement.
5. Contracts.
Parties may not by contract limit or control what they wish to do contractually in future, and even when
they include in written contract express provision against subsequent oral modification thereof, their later
oral agreement to modify or discharge written contract is both provable and effective.
6. Contracts.
Evidence established that written contracts, for installation of canopy and neon display, had been orally
modified and that such contracts, as modified, had been performed by plaintiff.
7. Damages.
Burden of proving that contract provision, for declaring entire unpaid rental balance due upon user's
default, was in nature of penalty rather than liquidated damages was on user.
OPINION
Cosgriff sued Silver Dollar on two written contracts, one of which provided for the
installation of a canopy at North Virginia Street, Reno, and the other for the installation of a
neon display at the same address. The complaint alleges in two counts delinquency in
payments under both contracts. The answer in denying any delinquency alleges as an
affirmative defense failure of consideration on the part of the plaintiff.
The court in its judgment determined that the plaintiff had fully performed its agreements
by constructing the installations according to the terms of the contracts; that by breach of
installment payments for such work all of the balance owing became due and payable, and
judgment thereupon was entered in favor of the plaintiff in the sum of $39,103.43. Appeal is
from said judgment.
Evidence was presented to the effect that although the written contracts provided for a
canopy and a neon display in accordance with certain specifications, the sign which was
installed was substantially different from that described in the specifications. There is no
contention on appeal that the canopy was different.
[Headnote 1]
With respect to the neon contract, the specifications provided for a sign reading,
HARLEY'S SILVER DOLLAR," in 24 and 12 inch letters.
DOLLAR, in 24 and 12 inch letters. Instead a sign reading, SILVER DOLLAR CLUB,
was installed. Several payments thereafter were made and then further payments were
refused. It is contended that the court erred in admitting over the objection of Silver Dollar
parol evidence to show a new oral contract or to show oral modifications of the written
contract. It would seem that the error assigned is not so much with respect to admitting the
parol evidence as it is to the failure of the court to rule on the objection thereto. By allowing
the oral evidence to remain in the record the lower court impliedly overruled the objection.
The evidence discloses that after the contracts were executed Vince Harley, President of
the Silver Dollar Club, told respondent's sales representative that he couldn't use the name,
HARLEY'S, in the sign, and he requested changes to be made in the sign and canopy.
1
The changes which were then made, including the deletion of the word, HARLEY'S, were
approved by Vince Harley, and the neon sign, as finally constructed, was in accordance with
the approved changes. The receipt of payments on the contracts after the installation
corroborates the oral testimony that a new contract had been made or that the written
contracts had been modified. Cosgriff at all times after the installation faithfully maintained
and repaired the sign and canopy.
[Headnote 2]
Parol evidence is proper to show subsequent oral agreements to rescind or modify a
written contract. Young Electric Sign Co. v. Last Frontier Corp., 78 Nev. 457, 375 P.2d 859;
Holland v. Crummer Corporation, 78 Nev. 1, 368 P.2d 63; 2 Nichols, Applied Evidence 72,
at 1265; 2 Jones on Evidence 475, at 912 (5th ed. 1958).
[Headnotes 3-5]
Appellant maintains that the terms of the contracts themselves prevented subsequent oral
modification thereof. Each contract contained the following provision: "TERMINATION OR
MODIFICATION OF AGREEMENT: This agreement may be terminated or modified andJor
the User released from liability hereunder only by the written endorsement of the Owner.
____________________

1
Vince Harley requested the change in order to prevent legal action by Harrah's Club, which establishment
was in the adjoining building.
TERMINATION OR MODIFICATION OF AGREEMENT: This agreement may be
terminated or modified and/or the User released from liability hereunder only by the written
endorsement of the Owner. No employee, or other agent of the Owner has authority to vary or
waive the provisions of this Contract in any respect whatsoever.
This provision obviously is for the benefit of Cosgriff only and, therefore, could be waived
by it. In any event, if a written agreement can be modified by a subsequent oral agreement any
of its provisions likewise may be modified.
Parties may change, add to, and totally control what they did in the past. They are wholly
unable by any contractual action in the present, to limit or control what they may wish to do
contractually in the future. Even where they include in the written contract an express
provision that it can only be modified or discharged by a subsequent agreement in writing,
nevertheless their later oral agreement to modify or discharge their written contract is both
provable and effective to do so. Simpson on Contracts 63, at 228.
[Headnote 6]
The evidence supports the court's determination that the original contracts were modified
and, as modified, performed by Cosgriff.
[Headnote 7]
Appellant, as user, agreed to pay respondent, as owner, $306.07 per month for 60 months
under the neon contract and $386.74 per month for 60 months under the canopy contract.
Each contract provided that in the event of default by the user, the owner could declare the
entire balance due and payable in which event the user agrees to pay such balance upon such
contingency. In addition the owner was given the right to take possession of and remove the
installation. In the event the user, after the balance of rentals had been declared due and
payable, paid the full amount of the rentals, he was entitled to the use of the displays under
all the terms and provisions of the contracts for the balance of the term of each contract.
Under the neon contract the user could purchase the display any time before installation
without penalty for $8,264. After installation, 2/3ds of the amount paid in will be applied
towards the cash selling price for the first year, after that time, conversion may be made on a
prorated basis. The canopy contract contained a similar provision, except that the purchase
price therefor was $10,442. Appellant contends that the judgment for the entire balance
owing under the two contracts is in the nature of a penalty rather than liquidated damages for
breach, because it so greatly exceeds the amount which would have been the cost of the two
displays prior to installation. If appellant had introduced evidence showing that the actual
damages were considerably smaller than the amount stipulated, this could be regarded as an
indication that the amount named was intended as a penalty, but no such evidence was
introduced.
Certainly, the defendant has the burden of proof' (and doubtless this means the burden of
first proceeding with evidence and also of finally persuading the judge) of the facts, such as
disproportion, ease of estimating damages, or want of intent to pre-estimate, as he may count
on to show that the stipulation is for a penalty. McCormick on Damages 157, at 623
(1935). See also Lu-Mi-Nus Signs v. Jefferson Shoe Stores, Inc., 257 Ill.App. 150; Electrical
Products Corporation v. Mosko, 88 Colo. 447, 297 P. 991; Lamson Co. v.
Elliott-Taylor-Woolfenden Co., 6 Cir., 25 F.2d 4, 58 A.L.R. 295.
We conclude therefore that judgment was correctly entered for the balance due under each
contract.
Affirmed.
Badt, C. J., concurs, and also concurs in the following comments by Thompson, J.
I concur, but wish to add a comment. The difficult question presented here is whether the
contract provision for liquidated damages is enforcible, or invalid as a penalty.
a penalty. In short, the provision is that, upon the user-lessee's default, the owner-lessor may
declare the entire unpaid rental balance due, and the lessee agrees to pay that amount. Here
the unpaid balance at the time of default was $39,103.43, the amount for which judgment was
entered.
As a general proposition a liquidated damage provision is prima facie valid. The party
challenging it must show that its application amounts to a penalty. (Lu-Mi-Nus Signs v.
Jefferson Shoe Stores, Inc., 257 Ill. App. 150) or, to put it differently, that the damages
stipulated bear no reasonable relationship to the actual loss sustained. In searching the record
to ascertain whether the lessee (Silver Dollar Club) has met its burden in this regard, I find
nothing of moving significance. The contract before us is in the form of a lease (or bailment)
of personal property for 5 years. Title does not pass unless the user-lessee elects to exercise
its option to purchase. The owner-lessor must construct and install the display and thereafter
maintain and service it. In return the user-lessee is to pay rent every month. Of major
significance is the agreed fact that the display was made and installed for the particular needs
of the user at a special location. Once designed and put in place the display has little value to
the owner-lessor, except for minimal salvage. The right to repossess the sign is usually of no
practical worth, for it has no resale potential. Thus in most instances the owner is not able to
reduce the loss incurred upon the user's default. The intrinsic worth of the display has
evaporated.
1
Though it is true that, upon the user-lessee's default in the payment of rent, the
owner may declare the entire unpaid balance due, it is also true that, if such occurs and the
lessee pays that balance, the owner's obligation to maintain and service the display for the
balance of the term is revived.
____________________

1
This fact alone places this case apart from land lease cases containing similar clauses for liquidated
damages. See, for example, Kothe v. R. C. Taylor Trust, 280 U.S. 224, 50 S.Ct. 142, 74 L.Ed. 382. In those
cases the lessor can usually minimize his damage by leasing to another person. If such is done, the lessor's actual
damage may not bear a reasonable relationship to the damage stipulated by the lease.
to maintain and service the display for the balance of the term is revived. Thus it is clear that
the user's default merely permits the owner to receive full payment immediately. It does not
excuse further performance by the owner if the user pays (voluntarily or after litigation) the
accelerated amount declared to be due. In such circumstances there cannot be (as the
user-lessee contends) a failure of consideration.
Though it is true in this case that the lessee (theoretically) could have exercised its option
to buy the display by paying approximately $17,000, it does not follow from this alone that
the judgment for liquidated damages becomes a penalty. The bald fact is that the lessee did
not elect to purchase the display, nor did it continue to pay the monthly rental required.
Absent proof in the record that the owner's actual loss is substantially less than the amount
stipulated by the contract, we may not declare that contract provision unenforcible as a matter
of law. The owner, in these circumstances, is entitled to recover the full benefit of the
bargain.
____________
80 Nev. 114, 114 (1964) Ray Motor Lodge, Inc. v. Shatz
RAY MOTOR LODGE, INC., and EUNICE RICE, Appellants, v. SUSAN SHATZ, Formerly
Known As Susan Shaw, Respondent.
No. 4667
March 9, 1964 390 P.2d 42
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F. Sexton,
Judge.
Action for specific performance of agreement to sell real estate. The trial court entered a
judgment of specific performance and the vendors appealed. The Supreme Court, Thompson,
J., held that the evidence sustained finding that oral understanding reached by purchaser and
one of the vendors was reduced to writing by that vendor who set forth total purchase price
and terms which would be accepted by vendors and that such writing was an acceptance by
both vendors.
Judgment affirmed.
McNamee, McNamee & Rittenhouse, of Las Vegas, for Appellants.
Dickerson & Miles, of Las Vegas, for Respondent.
Supreme Court may not substitute appellants' construction of facts for the meaning given them by trial
judge.
Vendors, who did not plead as a defense that court of statute of frauds respecting agent's authority to act
and who did not object to introduction of evidence proving one vendor's authority to bind the other, could
not question, on appeal, one vendor's power to bind the other. NRS 111.210, subd. 2; NRCP 8(c).
3. Vendor and Purchaser.
Evidence sustained finding that oral understanding reached by purchaser and one vendor was reduced to
writing by that vendor who set forth total purchase price and terms which would be accepted by vendors
and that such writing was an acceptance of purchaser's offer by both vendors.
Whether writing is legally sufficient to comply with statute of frauds presents a question of law. NRS
111.210, subd. 1.
Vendor's letter accepting offer of purchase and setting forth terms and conditions of sale was sufficient to
comply with statute of frauds where earlier letter written by vendor had particularly described the land
involved. NRS 111.210, subd. 1.
Note or memorandum may satisfy statute of frauds even though it consists of separate writings.
7. Frauds, Statute of; Vendor and Purchaser.
Provision for title insurance and agreement as to person obliged to pay for policy was not essential to
creation of enforceable contract to sell land, and lack of such provision did not preclude vendors'
acceptance of offer from satisfying statute of frauds. NRS 111.210, subd. 1.
OPINION
The appeal is from a judgment directing Ray Motor Lodge, Inc. and Rice to specifically
perform their agreement to sell certain real property to Shatz. The appellants (sellers) seek a
reversal on two grounds. First, they assert that the record shows no more than preliminary
negotiations for a sale rather than an enforcible contract; second, that the requirements of
156{1) were not met.1 We find no merit in either of these contentions, and
affirm the judgment entered.
111.210(1) were not met.
1
We find no merit in either of these contentions, and affirm the
judgment entered.
[Headnote 1]
The first ground for reversal (that the record shows no more than preliminary negotiations
for a sale) is merely an attempt to have us substitute the appellants' construction of the facts
for the meaning given them by the trial judge. Of course we cannot do this. The finding by the
trial court that there was an agreement to sell, finds ample support in the evidence. We shall
relate some of it to show that this is true. Several months before November 2, 1961 Shatz
(buyer) telephoned Winkenwerder (president and sole owner of Ray Motor Lodge, Inc.),
inquiring about the property. By letter dated November 2, 1961, Winkenwerder described the
property, advised Shatz that it was jointly owned by Ray Motor Lodge, Inc. and Rice, that an
appraisal should be obtained, and that he was open for offers. Following receipt of that letter,
Shatz had the property appraised. The appraiser notified Winkenwerder that its value was
about $500 to $550 an acre. Sometime between November 2 and November 19 Shatz
telephoned Winkenwerder. Each, in relating the substance of that conversation, testified that
they agreed upon a total price of $18,000 ($600 an acre for 30 acres), $8,000 down and the
balance at $150 a month. Winkenwerder made it clear that the deal was subject to the
approval of his coowner Rice.
On November 19, 1961 Winkenwerder again wrote Shatz: I have been waiting to hear
from my partner in Chicago but seems as though she must be out of town for and until after
Thanksgivingso by this weekend I should have her answer, and then I can let you know for
sure. I believe it will be alright with her and still I will have to get her OKso just bear with
me for a little whileOK.
____________________

1
NRS 111.210(1) reads: Every contract for the leasing for a longer period than 1 year, or for the sale of any
lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof,
expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be
made.
[Headnote 2]
Finally on December 9, 1961 Winkenwerder wrote Shatz, stating, inter alia: Mrs. Rice
and I will accept the $600 per acre for the land or a total of $18,000. Total price to be
$18,000.00, less cash down pay't 8,000.00, $10,000.00, Bal. $150.00 per month including 6%
interest until paid. Interest to be applied first, and balance to principal. This payment to be
split between Mrs. Rice and myself$75.00 to each. First mortgage or trust deed covering
the balance. The letter was signed by Winkenwerder for Ray Motor Lodge, Inc. and Mrs.
Eunice Rice.
2

[Headnote 3]
Upon receipt of this letter Shatz had escrow instructions drawn and mailed to
Winkenwerder. They were not acceptable because of a provision for annual payments of
$1800 (instead of monthly payments of $150). Also, the instructions included a 2 1/2 acre
release clause (i.e., a provision for the reconveyance of 2 1/2 acre parcels of the encumbered
property as certain portions of the total purchase price were paid) which had not been
previously agreed upon. Winkenwerder then notified his lawyer that he would not sign the
escrow instructions because the terms are not according to the original offer and final
acceptance by me and Mrs. Rice. As a result, new escrow instructions were prepared,
providing for monthly payments of $150 and deleting the 2 1/2 acre release clause.
Winkenwerder also refused to sign these, and this litigation ensued.
3
On this evidence alone
the trial court was clearly justified in concluding that the understanding reached by Shatz
and Winkenwerder during their telephone conference was reduced by Winkenwerder to
writing {letter of December 9, 1961), and that such letter was not only an acceptance by
Winkenwerder but by his coowner Rice as well.
____________________

2
On appeal the sellers contend that the record does not show a written authorization from Rice to
Winkenwerder empowering him to act. NRS 111.210(2). This is true. However, the sellers did not plead that
part of the statute of frauds as an affirmative defense as required by NRCP 8(c), nor did they object to evidence
offered to prove the agency and the authority to bind the principal. They may not now question either. Coray v.
Hom, 80 Nev. 39, 389 P.2d 76; Chisholm v. Redfield, 75 Nev. 502, 347 P.2d 523.

3
The sellers urge that the December 9 letter was an offer (though using words of acceptance) which was
rejected when the buyer submitted the first escrow instructions which deviated therefrom. The court was fully
justified in concluding otherwise, i.e., that the escrow instructions were drawn after the agreement was made and
did not affect its terms or validity.
trial court was clearly justified in concluding that the understanding reached by Shatz and
Winkenwerder during their telephone conference was reduced by Winkenwerder to writing
(letter of December 9, 1961), and that such letter was not only an acceptance by
Winkenwerder but by his coowner Rice as well.
[Headnotes 4, 5]
We turn now to discuss the second basis for appealthe statute of frauds. NRS
111.210(1). Reference to this portion of the statute of frauds was pleaded affirmatively in
defense. The sellers claim that the December 9 letter is an insufficient memorandum of an
oral contract to sell land because it does not contain a description of the property to be sold.
4
Of course whether the writing required by the statute is legally sufficient presents a
question of law. The relevant parts of the letter have heretofore been quoted. But for the
absence of a description it is otherwise definite and certain as to essential terms. Their claim
of error in this regard would be good were it not for the first letter written by Winkenwerder
to Shatz dated November 2, 1961 in which he particularly described the property and
suggested that an appraisal be obtained. The description: It's about 1,000 feet on L.A. 91:
legal is: SE 1/2, SE 1/4, NE 1/4 Sec. 20-22-61 20 acres; S 1/2, N 1/2, SE 1/4 NE 1/4 Sec.
20-22-61 10 acres. The description is more than sufficient. Compare: Johnson v. Watson, 70
Nev. 443, 272 P.2d 580 (where a description by street and number was found sufficient);
Roberts v. Hummel, 69 Nev. 154, 243 P.2d 248 (where the property was described as part of
Trout Creek ranch located approximately 17 miles north of Jungo, and held to be adequate).
[Headnote 6]
Of course a note or memorandum may satisfy the statute even though it consists of
separate writings. 2 Corbin, Contracts 512.
____________________

4
The sellers also urge that the parties negotiated for the sale of 30 acres, but at trial it developed that only 25
acres were included. We find no proof of an acreage discrepancy. To the contrary. Counsel stipulated that 30
acres were involved, and other evidence shows this to be the fact.
Corbin, Contracts 512. Indeed we have heretofore permitted separate writings to be
considered together, even though one of them was not signed by the party to be charged, and
neither was a sufficient memorandum in itself. Haspray v. Pasarelli, 79 Nev. 203, 380 P.2d
919; Shell Eastern Oil Petroleum Products v. White, 62 App. D.C. 332, 68 F.2d 379; Annot.,
81 A.L.R.2d 991; cf. Bowker v. Goodwin, 7 Nev. 135. The missing description in the letter of
December 9, 1961 is supplied by the letter of November 2, 1961, which formed a part of the
entire transaction. We conclude that the two letters, considered together, satisfy the statute of
frauds, NRS 111.210(1). All essential terms of an enforcible contract for the sale of land are
stated therein.
[Headnote 7]
One additional comment. The sellers also contend that the writings were incomplete
because no mention was made of title insurance and whose obligation it was to pay for the
policy. It is patent that such a provision is not essential to the creation of an enforcible
contract to sell land. The judgment is affirmed.
Badt, C. J., and Breen, D. J., concur.
McNamee, J., having disqualified himself, the Governor designated Honorable Peter
Breen, Judge of the Fifth Judicial District Court, to sit in his place and stead.
____________
80 Nev. 120, 120 (1964) County of Clark v. City of Los Angeles
COUNTY OF CLARK, Appellant, v. THE CITY OF LOS ANGELES, CALIFORNIA, a
Municipal Corporation of the State of California, and the DEPARTMENT OF WATER AND
POWER OF THE CITY OF LOS ANGELES, CALIFORNIA, Respondents.
No. 4602
March 10, 1964 390 P.2d 38
Action by county to recover unpaid taxes. The trial court granted summary judgment in
favor of defendants, and the plaintiff appealed. The Supreme Court, McNamee, J., held that
the City of Los Angeles was agency of federal government in generating electrical energy on
Nevada side of Boulder Dam project and was immune from license tax for revenue purposes
imposed by county ordinance upon business of generating electrical power.
Affirmed.
Edward G. Marshall, District Attorney, and John A. Porter, Deputy District Attorney,
Clark County, for Appellant.
Roger Arnebergh, City Attorney, Alfred H. Driscoll, Jr., Assistant City Attorney, of Los
Angeles, California, Deaner, Butler and Adamson, and Calvin M. Cory, of Las Vegas,
Nevada, for Respondents.
Harvey Dickerson, Attorney General, State of Nevada, for Intervenor State of Nevada.
1. Licenses.
In amending the statute so as to permit counties to levy license taxes for revenue purposes, the legislative
intent was to add to the grant of regulatory power the power also to license for purposes of revenue. NCL
1931-1941 Supp. 1942, par. 14.
2. Licenses.
The City of Los Angeles was agency of federal government in generating electrical energy on Nevada
side of Boulder Dam project and was immune from license tax for revenue purposes imposed by county
ordinance upon business of generating electrical power. NCL 1931-1941 Supp. 1942, par. 14.
3. Taxation.
A state does not have the power to tax the federal government, its agencies, or instrumentalities.
OPINION
In 1952 the Eighth Judicial District Court of the State of Nevada, in and for the County of
Clark, in the case of County of Clark v. City of Los Angeles, sustained a demurrer to the
complaint of the County of Clark which sought to collect a license tax imposed by county
ordinance upon the business of generating electric power. It was conceded that the tax was
imposed for purposes of revenue as distinguished from regulation.
The applicable statute then in existence upon which the county relied in passing its
ordinance taxing the business of generating electric power was paragraph 14, 1942, 1929
NCL, 1931-1941 Supp., which empowered counties: To fix, impose and collect a license tax
on and to regulate all character of lawful trades, callings, industries, occupations, professions,
and business conducted in their respective counties, outside of the limits of incorporated
cities and towns.
The action of the district court was affirmed by this court in Clark County v. City of Los
Angeles, 70 Nev. 219, 265 P.2d 216, where we held that said paragraph 14 empowered
counties to fix license taxes on businesses for the purpose of regulation only and not for the
purpose of raising revenue.
Stats. Nev. 1953, ch. 363, amended said paragraph 14, of 1942, to read as follows: To
fix, impose and collect a license tax for revenue to regulate all character of lawful trades,
callings, industries, occupations, professions, and business conducted in their respective
counties, outside of the limits of incorporated cities and towns. In addition, the title to the
act was amended to read: An act to create a board of county commissioners in the several
counties of this state and to define their duties and powers and qualifications, authorizing the
levy of license taxes for revenue purposes, * * *.
Pursuant to this amendment the county commissioners of Clark County passed an
ordinance entitled, in part: An ordinance to fix, impose and collect occupational license tax
for revenue from all person, associations, partnerships, corporations, municipal corporations,
foreign municipal corporations, and other organizations for the privilege of producing and
generating for commercial purposes electrical power in the County of Clark, State of Nevada,
outside of the limits of incorporated cities and towns, * * *. Said ordinance imposed a
specific tax on the business or activity of generating, manufacturing, or producing electric
power in the County of Clark, State of Nevada, outside of the limits of incorporated cities and
towns.
The county sought to levy this tax upon the City of Los Angeles for its activity of
generating power on the Nevada side of the Boulder Dam Project. Upon the city's refusal to
pay the tax for the period from June 1, 1958 to May 31, 1961, the county brought this suit to
recover $138,600, the amount of taxes assessed for that period. The State of Nevada
intervened in opposition to Clark County. The lower court granted summary judgment in
favor of the city. The county appeals therefrom.
[Headnote 1]
It is appellant's contention that the 1953 amendment which added the words for revenue
removed the obstacle which prevented the tax in the case of Clark County v. Los Angeles,
supra. On the other hand, the respondents maintain that the amendment had no such effect;
that in the absence of a comma after the words for revenue the amendment merely means
that the counties are authorized to impose a license tax for the purpose of obtaining revenue
in order to be able to regulate all character of lawful trades, etc.
We stated in Clark County v. City of Los Angeles, supra, that the legislature could
delegate its police power and its power to tax to the counties, but that if the grant be of
regulatory power only, it does not include the power to license for purposes of revenue. Such
power is granted only where the grant plainly appears from the delegating statute."
delegating statute. No such grant plainly appeared from the statute prior to the 1953
amendment.
The intent of the legislature to grant such power by the 1953 amendment is obvious,
because not only was the title of the act amended to include the words for revenue
purposes, but also paragraph 14 was amended to insert the words for revenue. True it is
that an ambiguity is apparent in the amendment of paragraph 14, but we think it proper, under
the circumstances, to construe the legislative intent in accordance with the contention of
appellant that the words for revenue removed the obstacle which prevented the tax in the
prior case.
Respondents take the position that even though the legislature attempted to empower the
counties to license businesses for revenue purposes, Clark County cannot do so as applied to
the respondents for several constitutional reasons. All of these raise important and interesting
points, but only one requires consideration.
[Headnote 2]
Respondents maintain that the trial court correctly concluded that the respondents, in
generating electrical energy at the dam site under and pursuant to the provisions of the agency
contract by and between respondents and the United States of America, were and are acting as
an agency of the United States and thus are immune from the county taxation provided by the
said county ordinance.
In the agreed statement of facts appearing in the record it was stipulated that the Boulder
Canyon Project, including the Hoover Dam, the Hoover Dam power plant, and the works
incidental thereto were built by the United States pursuant to the Boulder Canyon Project Act;
that all of the facilities thereof (with which we are here concerned) are owned by the United
States; that in 1941 the United States entered into a contract with the respondents wherein the
City of Los Angeles was designated as agent of the United States for the operation and
maintenance of that portion of Hoover Dam power plant which, from time to time during the
term of such agency, might be necessary for the generation of electrical energy to be
taken by the several allotees; and that the City of Los Angeles during all of the time
mentioned in plaintiff's complaint was acting pursuant to said agency contract.
agency, might be necessary for the generation of electrical energy to be taken by the several
allotees; and that the City of Los Angeles during all of the time mentioned in plaintiff's
complaint was acting pursuant to said agency contract.
The history of the enactment of the Boulder Canyon Project Act and the Boulder Canyon
Project Adjustment Act, which was later enacted, the nature and the developments following
their enactment are delineated in Clark County v. State, 65 Nev. 490, 199 P.2d 137. In that
case we determined that annual payments of $300,000 by the United States to Nevada under
the Boulder Canyon Project Adjustment Act on the condition that if certain taxes were levied
and collected, annual payments by the United States would be reduced in the amount of such
taxes, were a gift to Nevada, and that Clark County, where a part of the Boulder Dam Project
was located, was not entitled to portions of such payment. We stated at that time that it was
not the intent of either the United States or the State of Nevada in making such payments to
deprive Clark County of any of its taxing rights. However, we expressed no opinion in that
case whether the county could assess and collect taxes against the privilege of generating or
transforming electrical energy or the use of the facilities at the Boulder Dam Project. That
question is now before us for determination.
The contract between the city and the federal government designates the city as an agency
of the federal government in the operation of the government's generators.
[Headnote 3]
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, first established the rule that a state does
not have the power to tax the federal government, its agencies, or instrumentalities.
In Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 117, the court stated:
This recognition of the constitutional immunity of the Federal Government from state
exactions rests, of course, upon unquestioned authority. From McCulloch v. Maryland 4
Wheat. 316, through Gillespie v. Oklahoma, 257 U.S. 501 and New York ex rel. Rogers v.
Graves, 299 U.S. 401, a host of cases upheld freedom from state taxation not only for
Government activities but also for the agencies and salaries of persons that carried on the
work."
v. Maryland 4 Wheat. 316, through Gillespie v. Oklahoma, 257 U.S. 501 and New York ex
rel. Rogers v. Graves, 299 U.S. 401, a host of cases upheld freedom from state taxation not
only for Government activities but also for the agencies and salaries of persons that carried on
the work.
In that case an Arkansas statute provided for a sales tax on gross receipts from all sales in
the state. The statute was held to be unconstitutional as applied to the purchase of two tractors
by private contractors for use in constructing a naval ammunition depot for the United States
under a cost-plus-fixed-fee contract entered into with the Navy Department. The act under
which the purchase was made was held to provide that the contractors acted as purchasing
agents for the government. But since purchases by independent contractors of supplies for
Government construction or other activities do not have federal immunity from taxation, the
form of contracts, when governmental immunity is not waived by Congress, may determine
the effect of state taxation on federal agencies, for decisions consistently prohibit taxes levied
on the property or purchases of the Government itself.
In United States v. Livingston, 179 F.Supp. 9, aff'd, 364 U.S. 281 (1960), the contract
between du Pont and a federal agency did not expressly apply the word agent to du Pont in
connection with its procurement activities, although it specifically provided that du Pont, as
agent of the United States, may lease government housing and real estate. It was the state tax
on its procurement activities that was attacked. The court there said, at page 22: An agent,
however, need not be called by that name to be one. Liabilities of principals and its
immunities from taxation are not dependent upon the use, or omission, of a magic label. It is
clear that du Pont's procurement activities were authorized and were openly on behalf of the
United States, and at the government's expense and risk.
In the present case not only was the city's activity in generating power done solely for the
benefit of the United States under a contract requiring the city to operate the government
facilities, the city to be reimbursed only for its actual expenses in the operation, but also
the city is expressly designated in the contract as an agent of the federal government.
operate the government facilities, the city to be reimbursed only for its actual expenses in the
operation, but also the city is expressly designated in the contract as an agent of the federal
government. The lower court found as a fact that the city was an agent. But whether the status
of the city could be considered a question of fact is of doubtful significance, because we
conclude that the contract between the city and the federal government under its express
terms, establishes as a matter of law an agency relation between the city and the government
in the generation of power. Being expressly designated as an agent of the government for the
specific purpose of generating power, the legal incidence of the tax falls directly upon the
United States and thus infringes the government's constitutional immunities from taxation.
The so-called Detroit cases,
1
decided after Kern-Limerick and before Livingston, can be
distinguished. As stated in Livingston: In each of the Detroit cases, the Supreme Court was
concerned with taxation of a completely separate business enterprise which used government
property for its purposes of profit and which derived as much advantage from the use as if it
had legal title to the property. No such condition is to be found here.
In this connection it is interesting to note Justice Frankfurter's comment in his separate
opinion, following the opinion of the court in City of Detroit v. Murray Corp., 355 U.S. 489,
in which he dissented in part and concurred in part, regarding Kern-Limerick:
As Mr. Chief Justice Stone stated for a unanimous court in Alabama v. King & Boozer,
314 U.S. 1, 9, the application, and therefore the outcome, in cases like those before us of
these general principles turns on the terms of the contract and the rights and obligations of
the parties under it.' Nothing better illustrates the truth of this statement than a comparison of
King & Boozer with Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, a case whose relevance
is not minimized by the loud silence the Court's present opinions accord it."
____________________

1
United States v. City of Detroit, 355 U.S. 466: United States v. Township of Muskegon, 355 U.S. 484; City
of Detroit v. Murray Corp., 355 U.S. 489.
case whose relevance is not minimized by the loud silence the Court's present opinions
accord it.
Affirmed.
____________
80 Nev. 127, 127 (1964) Wright v. Silver State Construction Co.
WINNIE WRIGHT, WINNIE MITCHELL, LORENE PIEARCY and VELDA HAYNES,
Appellants, v. SILVER STATE CONSTRUCTION COMPANY, a Partnership, and A. D.
DRUMM, JR., and DONNA ANDREA DRUMM, Individually, and as Partners Associated
in Business Under the Common Name and Style of SILVER STATE CONSTRUCTION
COMPANY, HUSTON D. MILLS, and the STATE OF NEVADA,
on Relation of Its Department of Highways, Respondents.
No. 4725
March 11, 1964 390 P.2d 36
Appeal from the Fifth Judicial District Court, Mineral County; Peter Breen, Judge. On
Motion to Dismiss Appeal.
Breen, McDonald and Young, of Reno, for Appellants.
Vargas, Dillon, Bartlett & Dixon, of Reno, for Respondents Silver State Construction
Company, A. D. Drumm, Jr., and Donna Andrea Drumm.
Harvey Dickerson, Attorney General, Robert J. Potter, and Eli Grubic, Special Deputy
Attorneys General, for Respondents State of Nevada, and Huston D. Mills.
OPINION
Per Curiam:
This is a companion case to Welch, et al., Appellants, v. State of Nevada, et al.,
Respondents, No. 4726, 80 Nev.
80 Nev. 127, 128 (1964) Wright v. Silver State Construction Co.
128, 390 P.2d 35, decided this date. It grows out of the same accident and presents exactly the
same questions of law.
On the authority of Welch, the motion of the State of Nevada and Huston D. Mills to
dismiss the appeal as to them is granted.
Thompson, J., did not participate in the consideration or determination of this case.
____________
80 Nev. 128, 128 (1964) Welch v. State ex rel. Highway Department
LEANNE E. WELCH and LEANNE E. WELCH, as Guardian Ad Litem for MADELINE
WELCH, SONJA WELCH and MONICA WELCH, Appellants, v. THE STATE OF
NEVADA, on the Relation of the State Highway Department, HUSTON D. MILLS,
MINERAL COUNTY, THE BOARD OF COUNTY HIGHWAY COMMISSIONERS OF
MINERAL COUNTY, SILVER STATE CONSTRUCTION COMPANY, a Co-Partnership,
A. D. DRUMM, JR., and DONNA ANDREA DRUMM, Individually, and as Co-Partners in
Said Co-Partnership, Respondents.
No. 4726
March 11, 1964 390 P.2d 35
Appeal from the Fifth Judicial District Court, Mineral County; Peter Breen, Judge. On
Motion to Dismiss Appeal.
Proceedings on motion to dismiss an appeal from a judgment of the lower court. The
Supreme Court dismissed appeal where the notice of appeal referred solely to the judgment of
a given date and did not designate a prior order from which the appeal was sought.
Breen, McDonald and Young, of Reno, for Appellants.
Vargas, Dillon, Bartlett & Dixon, of Reno, for Respondents Silver State Construction
Company, A. D. Drumm, Jr., and Donna Andrea Drumm.
Harvey Dickerson, Attorney General, Robert J. Potter, and Eli Grubic, Special Deputy
Attorneys General, for Respondents State of Nevada, and Huston D. Mills.
Appeal was dismissed where the notice of appeal referred solely to the judgment of a given date and did
not designate a prior order from which the appeal was sought. NRCP 73(b).
Only those parts of the judgment which are included in a notice of appeal will be considered by the
appellate court. NRCP 73(b).
Where several defendants are joined and separate judgments are entered, a notice of appeal specifically
designating one of these cannot be interpreted to include any other not mentioned. NRCP 73(b).
OPINION
Per Curiam:
This is an action against the State of Nevada and others for damages resulting from an
automobile accident on a state highway.
On October 11, 1963 the lower court made and filed its Ruling on Motion to Dismiss in
favor of the State and defendant Mills. On the same date it granted the motion of Silver State
Construction Company, A. D. Drumm, Jr., and Donna Andrea Drumm for summary judgment
that the action be dismissed as to them. A formal judgment dismissing the action against the
Silver State Construction Company, A. D. Drumm, Jr., and Donna Andrea Drumm was
signed on October 15, 1963 and filed on October 16, 1963. On October 21, 1963 notice of
entry of the October 16, 1963 judgment was served upon plaintiffs by the attorneys for Silver
State Construction Company, A. D. Drumm, Jr., and Donna Andrea Drumm. A notice of
appeal from the judgment for the defendants, and all parts thereof, entered in the
above-entitled action on the 16th day of October, 1963, was filed November 15, 1963. The
bond for costs on appeal was also filed on November 15, 1963 and it recites that the plaintiffs
have appealed from the judgment entered on October 16, 1963. On November 19, 1963 the
State of Nevada served notice of the entry of the ruling of October 11, 1963 on its motion
to dismiss.
of the entry of the ruling of October 11, 1963 on its motion to dismiss. No notice of appeal
other than that filed on November 15, 1963 was filed.
The matter now before us for determination is a motion by the State of Nevada and Huston
D. Mills to dismiss the appeal as to them based on the ground that appellants have not
appealed from the order of October 11, 1963 dismissing them as parties defendant in the
court below.
We have concluded that the motion to dismiss the appeal as to the State of Nevada and
Huston D. Mills must be granted.
NRCP 73(b) provides: The notice of appeal shall specify the parties taking the appeal;
shall designate the judgment or part thereof appealed from; and shall name the court to which
the appeal is taken.
Not only does the notice of appeal refer solely to the judgment of October 16, 1963, but so
also does the bond on appeal.
[Headnotes 1, 2]
If it was the intention of appellants to appeal from the October 11, 1963 order they have
not complied with Rule 73(b). Under this rule we said in Reno Newspapers v. Bibb, 76 Nev.
332, 353 P.2d 458: Only those parts of the judgment which are included in the notice of
appeal will be considered by the appellate court.
[Headnote 3]
Where several defendants are joined and separate judgments are entered, a notice of appeal
specifically designating one of these cannot be interpreted to include any other not mentioned.
Newell v. Newell, 289 P.2d 22 (Cal.App. 1955), superseded without discussion of these
points in 46 Cal.2d 861, 299 P.2d 849. In Newell, it was held that a notice of appeal from an
order entered on the 23rd day of June, 1954, and from the whole thereof, was insufficient to
take an appeal from or bring up for review any alleged error in issuing the restraining order
made June 18, 1954 and entered on June 22, 1954, no notice of appeal having been filed
therefrom; and that the notice of appeal must point out the particular judgment or order,
or the specific part thereof, from which the appeal is taken. "Nor is there any merit in the
contention that the words "from the whole thereof' appearing in the notice of appeal, are
sufficient to bring up for review the order from which an appeal was not taken.
and that the notice of appeal must point out the particular judgment or order, or the specific
part thereof, from which the appeal is taken. Nor is there any merit in the contention that the
words from the whole thereof' appearing in the notice of appeal, are sufficient to bring up for
review the order from which an appeal was not taken. The words from the whole thereof' in
the notice of appeal relate to the order previously mentioned, to wit, the order dated the 23rd
day of June, 1954, and from the whole thereof, and not to any other order or judgment.
(Citation) In the absence of a proper notice of appeal being filed, this court is without
jurisdiction to consider any alleged error in the order entered June 22, 1954. Accord
Culinary Workers v. Haugen, 76 Nev. 424, 357 P.2d 113.
The motion of the State of Nevada and Huston D. Mills to dismiss the appeal as to them is
granted.
Thompson, J., did not participate in the consideration or determination of this case.
____________
80 Nev. 131, 131 (1964) State v. Nevada Power Co.
THE STATE OF NEVADA, THE NEVADA TAX COMMISSION; THE COUNTY OF
CLARK; and THE COUNTY OF NYE, Political Subdivisions of the State of Nevada; W. W.
GALLOWAY, Treasurer and Ex-Officio Tax Receiver of the county of Clark and EUDORA
V. MURPHY, Treasurer and Ex-officio Tax Receiver of the County of Nye, Appellants, v.
NEVADA POWER COMPANY, a Corporation, Respondent.
No. 4678
March 12, 1964 390 P.2d 50
Appeal from judgment of the First Judicial District Court, Ormsby County; Richard L.
Waters, Jr., Judge.
Public utility brought action against the State of Nevada and others to recover tax refunds.
The lower court entered a judgment adverse to the State of Nevada and others, and they
appealed. The Supreme Court, Thompson, J., held that formula used by Tax Commission
to measure value of public utility franchises for ad valorem tax purposes was not
constitutionally permissible, where constitutionally exempt intangibles were included in
computation of total tax due for taxable year in question.
court entered a judgment adverse to the State of Nevada and others, and they appealed. The
Supreme Court, Thompson, J., held that formula used by Tax Commission to measure value
of public utility franchises for ad valorem tax purposes was not constitutionally permissible,
where constitutionally exempt intangibles were included in computation of total tax due for
taxable year in question.
Judgment affirmed.
Harvey Dickerson, Attorney General, of Carson City, and Eli Grubic, Special Deputy
Attorney General, of Reno, for Appellants.
V. Gray Gubler, of Las Vegas, and Best, Best & Krieger, of Riverside, California, for
Respondent.
1. Taxation.
Statutory requirement that Tax Commission value public utility franchises and physical property as
collective unit and that formula utilized show all elements of value in arriving at and fixing value for any
class of property assessed means that assessed valuation of utility's physical property and franchises is to be
reflected in one figure, and accordingly method used to determine total assessed valuation must have valid
application to every class of property assessed. NRS 361.320, subd. 2.
2. Taxation.
Formula used by Tax Commission to measure value of public utility franchises for ad valorem tax
purposes was not constitutionally permissible, where constitutionally exempt intangibles were included in
computation of total tax due for taxable year in question. NRS 361.025, 361.225, 361.320, subd. 2;
Const. art. 10, 1.
OPINION
The appeal requires us to decide whether the application of the formula used by the
Nevada Tax Commission to measure the value of public utility franchises for ad valorem tax
purposes is constitutionally permissible.1 We hold that it is not and affirm the judgment
entered below.
ad valorem tax purposes is constitutionally permissible.
1
We hold that it is not and affirm the
judgment entered below.
The case was presented on an agreed statement of facts. It reads:
IT IS HEREBY STIPULATED AND AGREED by and between the parties hereto, by
and through their respective counsel, that plaintiff, NEVADA POWER COMPANY, has
waived and does hereby waive its claim for tax refunds for the assessment year, 1960-1961,
in all respects save and except only that said plaintiff reserves its right to tax refunds, if any
are due and owing, by reason of the fact that the State Tax Commission included working
capital and intangibles in arriving at the assessed valuation of plaintiff's properties.
IT IS FURTHER STIPULATED AND AGREED (a) that plaintiff has followed all
procedures required of it to entitle it to tax refunds by reason of the inclusion of working
capital and intangibles in the assessed valuation of plaintiff's properties for the taxable year
1960-1961, in the event it is determined by the above-entitled court that working capital and
intangibles are exempt from taxation under the Constitution and Laws of the State of Nevada,
(b) that the working capital of plaintiff in the amount of $534,424.00 included in its tax base
in the indicator of value, Book Cost Less Depreciation, was computed on the basis of twelve
and one-half percent (12 1/2%) of the operating expenses for the previous year, excluding
depreciation and taxes, which represents the Tax Commission's formula for computing
working capital for a period of 45 days necessary for a going business for that number of
days, {c) that intangibles comprised of bank deposits, temporary investments and other
assets of an intangible nature, which were used as a measure of franchise value, in the
sum of $334,000.00, were not deducted from the capitalized income indicator of value
and that similarly $176,430.00 was not deducted from the indicator of value of stock and
debt, {d) that the portion of the assessed valuation of plaintiff's properties for the tax
year in question attributable to working capital and intangibles was the total of assets in
this category included in said three indicators of value, divided by three and multiplied by
35%, to-wit, the sum of $121,S99.63, and {e) that the refunds due {if the court decides
the matter in favor of plaintiff) are {i) from Clark County, $4,695.31 and {ii) from Nye
County, $54.20."
____________________

1
Nev. Const. art. 16, 1, in relevant part, reads: 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, except * * * shares of stock (except shares of stock in
banking corporations), bonds, mortgages, notes, bank deposits, book accounts and credits, and securities and
choses in action of like character are deemed to represent interest in property already assessed and taxed, either
in Nevada or elsewhere, and shall be exempt.
year, excluding depreciation and taxes, which represents the Tax Commission's formula for
computing working capital for a period of 45 days necessary for a going business for that
number of days, (c) that intangibles comprised of bank deposits, temporary investments and
other assets of an intangible nature, which were used as a measure of franchise value, in the
sum of $334,000.00, were not deducted from the capitalized income indicator of value and
that similarly $176,430.00 was not deducted from the indicator of value of stock and debt, (d)
that the portion of the assessed valuation of plaintiff's properties for the tax year in question
attributable to working capital and intangibles was the total of assets in this category included
in said three indicators of value, divided by three and multiplied by 35%, to-wit, the sum of
$121,899.63, and (e) that the refunds due (if the court decides the matter in favor of plaintiff)
are (i) from Clark County, $4,695.31 and (ii) from Nye County, $54.20.
The stipulation is clear that constitutionally exempt intangibles were included in the
commission's computation of the total tax due for the taxable year in question.
Notwithstanding this fact, it is the commission's position that such items may properly be
included for the purpose of measuring the value of the taxpayer's franchises; that their
inclusion for that purpose does not result in taxing exempt intangibles in violation of the state
constitution. On the other hand, the utility contends that any formula which utilizes in any
degree constitutionally exempt items is not permissible.
[Headnote 1]
All agree that public utility franchises may have value and that such value, if any, is
subject to assessment and tax. The franchises are intangible in nature, and their value is
difficult to ascertain. The legislature, in providing that the full cash value of all franchises and
property be assessed and taxed [NRS 361.320(2); NRS 361.225; NRS 361.025] did not itself
prescribe the method to be used to determine full cash value. Rather, it delegated that
authority to the tax commission. NRS 361.320(2); cf. State v. Wells, Fargo & Co., 38 Nev.
505, 150 P. 836. However, the legislature did require that the commission value the
franchises and the physical property as a collective unit, and that the formula utilized show
all elements of value in arriving at, and fixing the value for, any class of property assessed.
NRS 361.320(2). We deem this to mean that the assessed valuation of the utility's physical
property and franchises is to be reflected in one figure; the physical property and franchises
are not to be separately assessed and taxed. Accordingly, the method used to determine the
total assessed valuation must have valid application to every class of property assessed, in
this case the physical properties and franchises.
[Headnote 2]
Here the formula or method used by the tax commission to determine the utility's total
assessed valuation consists of three indicators of value, the book cost less depreciation
indicator, the capitalization of income indicator and the stock and debt indicator. These
three approaches to value were employed and weighted to arrive at a total assessed valuation
figure for the physical properties and franchises as a collective unit. However, any attempt by
us to explain the procedures utilized to arrive at the total assessed valuation, is greatly
hampered by the meager record before us, and it is not appropriate that we indulge in
presumptions. It seems to us that it may be possible to use each of the indicators of value, and
weight them, without violating the constitutional prohibition against taxing specified
intangibles. However, on the stipulated facts before us, it is plain that the constitutional
prohibition has been violated.
In the book cost less depreciation indicator of value, 12 1/2 percent of working capital
was included as a measure of franchise value.
2
It is conceded that the working capital is
mainly comprised of tax exempt items (bank deposits, easily liquidated securities, etc.).
Neither this record nor reason suggests a reasonable correlation between working capital
and franchise value.
____________________

2
The term working capital is used to mean the liquid assets on hand to meet current obligations.
Consolidated Gas Co. v. City of New York, 157 F. 849, (reversed on other grounds, 212 U.S. 19). In the present
case 12 1/2 percent represents 45 dayswhich, according to the tax commission, is the least amount of time that
would pass between the sale of power and the receipt of revenue.
record nor reason suggests a reasonable correlation between working capital and franchise
value. Hence the inclusion of tax exempt items in this manner necessarily, to some extent,
subjected these exempt items to taxation.
The capitalization of income indicator is similarly subject to challenge. The theory of
this indicator is that the net income capitalized indicates the size or value of its source. Hence
if all net income was capitalized (viz. the net income from the sale of power and from
non-physical investments), the physical properties, franchises and tax exempt items would
necessarily be valued; and, of course, if the tax exempt items were not withdrawn or
deducted, they (as well as the physical properties and franchises) would be taxed. Similarly, if
only the net operating income was capitalized (income from the sale of power) and the value
of the tax exempt items was added to the capitalized net operating income as a measure of
franchise value, this also was not permissible. As to the application of this indicator of value,
the stipulation is not precise and clear. However, we read the stipulation to mean that tax
exempt items were included and not later deducted. Thus it is evident that this indicator was
improperly applied.
Nor may the third approach to value as applied here (the stock and debt indicator)
successfully withstand constitutional attack. In brief, this method is designed to value the
entire business. The company's total liabilities and the aggregate selling price of its stock are
totaled (less certain deductions which are not relevant to our discussion). The figure thus
reached is supposed to reflect what a purchaser would pay for the entire business. As tax
exempt items (as well as franchises, physical plant, and everything else) necessarily are
included in an appraisal of the entire business, they will be taxed unless deducted.
We reiterate that the three indicators of value utilized to measure the value of the
company's franchises (as well as the value of its physical properties) are not inherently
objectionable.
inherently objectionable. They may be used and weighted without violating the constitutional
provision in question. However, in this case the tax commission applied its valuation formula
in such a way as unconstitutionally to tax exempt items to the extent indicated by the
stipulation.
Affirmed.
____________
80 Nev. 137, 137 (1964) Reid v. Royal Insurance Co.
GILBERT F. REID, dba DESERT REFRIGERATION, and CENTER AIR
CONDITIONING, INC., Appellants, v. ROYAL INSURANCE COMPANY, LTD., NORTH
RIVER INSURANCE COMPANY, and LILLIAN G. NORRIS, Respondents.
GILBERT F. REID, dba DESERT REFRIGERATION, Appellant, v. CENTER AIR
CONDITIONING, INC., Respondent.
No. 4653
March 13, 1964 390 P.2d 45
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F. Sexton,
Judge.
Action by homeowner against contractor hired to remove air cooler and install new
equipment for negligence in causing home to be flooded. The contractor impleaded the
subcontractor by third-party complaint. The lower court rendered judgment for owner against
contractor and subcontractor and denied contractor relief on the claim over, and contractor
and subcontractor appealed. The Supreme Court, Badt, C. J., held that subcontractor, on
which owner never sought to impose liability, could not be held liable to owner.
Judgment of Norris and the insurance companies against Reid affirmed. Judgment of
Norris and the insurance companies against Center Air Conditioning, Inc., reversed.
Judgment denying relief to Reid against Center Air Conditioning, Inc., affirmed.
[Rehearing denied April 2, 1964] George A.
George A. Cromer, of Las Vegas, for Center Air Conditioning, Inc.
Singleton & DeLanoy and Rex A. Jemison, of Las Vegas, for Gilbert F. Reid, dba Desert
Refrigeration.
Tad Porter, of Las Vegas, for Royal Insurance Company, Ltd., North River Insurance
Company, and Lillian G. Norris.
1. Indemnity.
Proper application of indemnity shifts burden of entire loss from defendant tort-feasor to another who
should bear it instead. NRCP 14(a).
2. Parties.
Generally, third-party practice device is not available in case involving joint or concurrent tort-feasors
having no legal relation to one another and each owing duty of care to injured party. NRCP 14(a).
3. Parties.
In cases involving joint or concurrent tort-feasors having no legal relation to one another and each a duty
of care to the injured party, the injured party may decide for himself whom to sue. NRCP 14(a).
4. Parties.
Third-party practice rule shall not be used by a defendant to offer another defendant to plaintiff, but if a
new party is impleaded, plaintiff has option of whether to accept third-party defendant as a defendant in his
case. NRCP 14(a).
5. Parties.
Subcontractor which was brought in as third-party defendant by contractor sued by homeowner for
negligent removal of air cooler and installation of new equipment and on which owner never sought to
impose liability could not be held liable to owner for the damage done. NRCP 14(a).
6. Contribution.
In Nevada there is no right of contribution between joint tort-feasors.
7. Indemnity.
If owner's loss is caused solely by negligence of subcontractor, indemnity principle will be applied to
shift entire burden of loss from contractor to subcontractor.
8. Master and Servant.
Contractor is liable to owner for loss caused solely by negligence of subcontractor.
9. Contracts.
Contractor's duty to perform job for owner in workmanlike manner is nondelegable.
10. Negligence.
Information to employee was information to employer sued by owner for negligent removal of air cooler
and installation of new equipment.
11. Indemnity.
Contractor who had same knowledge and information as subcontractor and was negligent in permitting
copper pipe filled with live water to be exposed to freezing temperatures, as was subcontractor, with result
that owner's home from which contractor had been hired to remove air cooler and install new equipment
was flooded had no claim for relief against subcontractor on theory of indemnity implied in law.
OPINION
The appeal presents two interesting legal problems. The first requires an analysis of the
third-party practice rule (NRCP 14), and the other concerns the possible application of a
non-contractual indemnity principle to the facts of this case. The questions arise under the
following circumstances.
A home owner (Lillian Norris) and her subrogated insurance carriers (Royal Insurance
Company and North River Insurance Company) joined as plaintiffs in a suit against a general
contractor (Desert Refrigeration) to recover damages. The contractor had been hired to
remove the existing evaporation-type air cooler and install new refrigeration equipment in the
Norris home. It is claimed that the work was negligently done, causing the home to be
flooded. By third-party complaint the defendant general contractor impleaded its
subcontractor (Center Air), who had been engaged by the general contractor to do the work.
The predicate for the claim over was that the plaintiffs' loss was due to the sole negligence of
the subcontractor. An express contract of indemnity was not pleaded. Following trial, the
lower court found that both the contractor (the defendant) and the subcontractor (the
third-party defendant) had been negligent, the former in failing to supervise, and the latter in
the manner of doing its work. It entered judgment for the plaintiffs against the defendant
and the third-party defendant {though the latter was never named as a defendant in the
plaintiffs' case), treating them as though they had been sued jointly as tort-feasors.
judgment for the plaintiffs against the defendant and the third-party defendant (though the
latter was never named as a defendant in the plaintiffs' case), treating them as though they had
been sued jointly as tort-feasors. It also denied the general contractor (defendant and
third-party plaintiff) any relief on its claim over against the subcontractor (third-party
defendant).
On this appeal all agree that the plaintiffs are entitled to judgment against their defendant,
the general contractor. However, the subcontractor asserts that the judgment for the plaintiffs
against it cannot stand, for it was never named as a defendant in the plaintiffs' suit; and the
contractor, though admitting his liability to the plaintiffs, contends that error occurred when
the lower court denied his claim over against the subcontractor.
[Headnotes 1-4]
We have not heretofore had occasion to discuss the third-party practice rule.
1
It is based
upon the theory of indemnity. A defendant is permitted to defend the case and at the same
time assert his right of indemnity against the party ultimately responsible for the damage.
____________________

1
NRCP 14(a), as in effect at the time the case was tried and submitted to the court below, reads:
(a) When Defendant May Bring in Third Party. Before the service of his answer a defendant may
move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party
plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be
liable to him for all or part of the plaintiff's claim against him. If the motion is granted and the summons
and complaint are served, the person so served, hereinafter called the third-party defendant, shall make
his defenses to the third-party plaintiff's claim as provided in Rule 12 and his counterclaims against the
third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The
third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to
the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out
of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party
plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction
or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the
third-party defendant thereupon shall assert his defenses as provided in Rule 12 and his counterclaims
and cross-claims as provided in Rule 13. A third-party defendant may proceed under this rule against any
person not a party to the action who is or may be liable to him for all or part of the claim made in the
action against the third-party defendant.
case and at the same time assert his right of indemnity against the party ultimately responsible
for the damage. The application of indemnity (when proper) shifts the burden of the entire
loss from the defendant tort-feasor to another who should bear it instead. Prosser, Torts 46
(2d ed.). As a general proposition the third-party practice device is not available in a case
involving joint or concurrent tort-feasors having no legal relation to one another, and each
owing a duty of care to the injured party. State v. McLaughlin, 315 S.W.2d 499, 507 (Mo.
App. 1958). In such a case the plaintiff has the right to decide for himself whom he shall sue.
McPherson v. Hoffman, 6 Cir., 275 F.2d 466, 470; Detroit City Gas Co. v. Syme, 6 Cir., 109
F.2d 366, 569. Rule 14 shall not be used by a defendant for the purposes of offering another
defendant to the plaintiff. State v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127. However, if a
new party is impleaded, it is optional with the plaintiff whether he will accept the third-party
defendant as a defendant in his (the plaintiff's) case. The rule is clear in this respect. It states:
The plaintiff may assert any claim against the third-party defendant arising out of the
transaction or occurrence that is the subject matter of the plaintiff's claim against the
third-party plaintiff * * *.
[Headnote 5]
Because of these clearly defined principles, it is apparent, in the case before us, that the
judgment for the plaintiffs against the third-party defendant (subcontractor) cannot stand. The
plaintiffs never sought to impose a liability upon the subcontractor. Even after the
subcontractor was impleaded by the named defendant (contractor) the plaintiffs did not
choose to amend their complaint to accept the subcontractor as an additional defendant in
their case. We can only conclude that they were satisfied with the validity of their case against
the general contractor and were willing to win or lose on that claim for relief.
[Headnote 6]
The lower court evidently believed that the plaintiffs' failure to accept the subcontractor as
another defendant, by filing an appropriate amended pleading, was no more than a
procedural irregularity having no particular substantive significance.
by filing an appropriate amended pleading, was no more than a procedural irregularity having
no particular substantive significance. This is not the fact. Quite to the contrary, by treating
the contractor and subcontractor as joint defendants in the plaintiffs' case, the court exposed
the subcontractor to a liability which it would not otherwise incur, for in Nevada there is no
right of contribution between joint tort-feasors, Gensler-Lee v. Geertson, 73 Nev. 328, 318
P.2d 1113 (and the plaintiffs may choose to satisfy their judgment by proceeding against the
subcontractor whom they did not sue, instead of the contractor whom they did sue), nor, in
this case (as we discuss later), is there a valid basis upon which to shift the entire loss from
the contractor to its subcontractor. We therefore reverse that part of the judgment granting the
plaintiffs a recovery against the subcontractor. We turn to discuss the controversy between the
third-party plaintiff (contractor) and the third-party defendant (subcontractor).
As previously noted, this case does not involve an express contract of indemnity. The
contractor and subcontractor did not make a written or oral agreement requiring the latter to
indemnify the former against loss occasioned by the indemnitee's (contractor's) negligence.
Absent an express contract case, authority is in confusion whether indemnity will be allowed
at all, and if so, to what extent and under what circumstancesor, to put it differently, when
is non-contractual indemnity (indemnity implied in law) permissible? It is not uncommon to
recognize a right to indemnification in agency-type relationships (master-servant;
principal-agent; independent contractors) if the liability is imposed upon one of the parties
solely because of his legal relationship to the person who has committed the tortious act.
[Headnotes 7-9]
Here, the legal relationship of contractor-subcontractor is present. Had the plaintiffs' loss
been caused solely by the negligence of the subcontractor we would not hesitate to apply an
indemnity principle to shift the entire burden of the loss from the contractor to the
subcontractor.2 However, this is not the case before us.
burden of the loss from the contractor to the subcontractor.
2
However, this is not the case
before us. For this case, the court found that both the contractor and subcontractor were
negligent, and this finding is not challenged.
3
Thus, we are asked to apply the indemnity
principle to a case where the parties are in pari delicto.
Reid relies upon Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 133, 76
S.Ct. 232, 100 L.Ed. 133, 142. In that case an employee of the stevedoring contractor sued the
shipowner for damages for injury resulting from improper stowage of cargo aboard the ship,
and the shipowner filed a third-party complaint against the stevedoring contractor. Against a
dissenting opinion by Justice Black in which Chief Justice Warren and Justices Douglas and
Clark joined, the five-member majority held the stevedoring contractor liable to the
shipowner. The majority held that the stevedoring company's agreement to stow the pulp rolls
implied an agreement to stow them properly and safely, and that this in turn implied in law an
agreement to indemnify the shipowner against claim of damage if a longshoreman should be
injured by reason of the negligent stowage. The majority further held that the shipowner's
failure to discover and correct the contractor's own breach of warranty could not in such case
be used as a defense, nor could it excuse the breach of the stevedoring contractor.
Weyerhaeuser S.S. Co. v. Nacirema Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491,
decided two years after Ryan, referred to Ryan as holding that if the stevedoring company
rendered substandard performance which led to foreseeable liability on the part of the
shipowner, the latter was entitled to indemnity absent conduct on its part sufficient to
preclude recovery.
In the instant case the finding of negligence on Reid's part is not necessarily confined to
Reid's failure to discover and correct the danger, nor was there absent conduct on his part
sufficient to preclude recovery.
____________________

2
In such case the contractor is liable to the plaintiffs, for as to them, the duty to perform the job in a
workmanlike manner is nondelegable, and he may not successfully defend the plaintiff's suit by simply asserting
that he hired someone else to perform the work for him. Cf. M. F. & Co. v. Stevens, 60 Nev. 358, 109 P.2d 895.

3
The contractor denies that it was obligated to supervise the work and denies knowledge of the danger. The
trial court found against these contentions factually.
part is not necessarily confined to Reid's failure to discover and correct the danger, nor was
there absent conduct on his part sufficient to preclude recovery.
Although some of the facts are in dispute, the following appears: In the process of
installing the refrigeration unit it was necessary to remove the old evaporator cooler. To this
evaporator cooler was attached a quarter-inch copper tube which supplied water to the old
cooler. Upon removal of the evaporator cooler it was observed that water was flowing
through the copper tube. Although employees of Reid, as well as employees of Center, sought
to find the shut off valve to shut off the water still coming through the copper tube, it was not
found. The proper method of handling the situation was by locating the shutoff valve or
stopping off the water coming into the copper pipe at its point of intake, or taking out the
copper tubing entirely. The natural place to seek the intake into the copper tube and the
shutoff valve would be in the neighborhood of the bathroom. Nobody found any outlets from
the bathroom. It developed later, however, that the living room adjoined the bathroom and in
the common wall between the living room and bathroom there was on the living room side a
panel, easily removable, and which, when removed, exposed the shutoff valve in the wall.
Center's employees informed one McGary, Reid's employee, who was on the job, that Center
had been unable to find the shutoff valve and had crimped the copper line on the roof. It does
not appear that either McGary or Reid informed Mrs. Norris of the situation. Reid had not
taken out a construction permit, so there was no inspection of the job by the city authorities.
When the situation became known to the city authorities, after the flooding occurred, and it
developed that Reid had not obtained a construction permit from the city, Reid was fined a
double penalty.
Thus the job was left. Mrs. Norris in the meantime had left Las Vegas and returned some
nine days later to discover some $3,000 damage to the ceiling, walls, furniture, etc., resulting
from flooding. The cause of the flooding, as might have been expected, was the exposure of
the quarter-inch copper tubing with water in it to subfreezing temperatures.
the quarter-inch copper tubing with water in it to subfreezing temperatures. The pipe burst
and the water flowed out.
[Headnote 10]
Reid knew of the danger immediately upon installation and accepted it. There is ample
evidence in the record upon which the trial court could rely to the effect that McGary, the
agent of Reid, was definitely informed of the situation. Information to McGary was
information to his employer Reid.
Appellant seeks to avoid this conclusion by the assertion that McGary was simply a
salesman. He implies something of the same status to Reid himself. The trial court rejected
these views. McGary was found on all of Reid's jobs. One of Center's employees when
questioned on the matter of McGary's attendance on the various jobs that Center did for Reid
and to what extent he was around the jobs, said it depended on how much he had to do. If he
had a lot of work, he didn't show up so often, but if he had plenty of time, He would drive
you crazy. The court undoubtedly wondered why, if McGary was simply a salesman, he was
around all the jobs that Center did for Reid.
As to Reid himself, he had subcontracted to Center the job of removing the old evaporator
cooler and installing the refrigerator cooler. For this he paid Center $300; his full contract
with Mrs. Norris was $1,426.
Another matter of importance was the duty of Reid to take out a construction permit from
the proper officials of the city. The original written contract between Mrs. Norris and Reid
placed on Reid the responsibility for providing local permits and licenses.
Had there been an application for a permit, with the inspection by the city authorities that
would have followed, the danger would beyond doubt have been discovered.
[Headnote 11]
In short the court was justified in finding both Center and Reid negligent. Each had the
same knowledge and information.
information. Each failed to discover the shutoff valve. Each permitted the situation to remain,
namely, the quarter-inch copper pipe filled with live water exposed to freezing temperatures.
We hold that the doctrine of the Ryan case, having its origin in and being applied for the
most part to maritime cases, should not be extended to the present situation. Accordingly, we
hold that under the circumstances of this case, the contractor does not have a claim for relief
against the subcontractor on the theory of indemnity implied in law.
The confusion as to when the indemnity rule announced in Ryan Stevedoring Co. v.
Pan-Atlantic S.S. Corp., supra, should be applied may be illustrated by a few citations. In
Weyerhaeuser S.S. Co. v. Nacirema Co., supra, the unanimous opinion of the United States
Supreme Court said: The question here involves the right to trial by jury under principles of
maritime liability enunciated in Ryan * * *. (Emphasis supplied.) Ryan had referred to the
third-party claim as growing out of the resulting (from improper stowage by the stevedore)
unseaworthiness of the vessel. The opinion of Justice Laurance M. Hyde for the Supreme
Court of Missouri in McDonnell Air. Corp. v. Hartman-HanksWalsh P. Co., 323 S.W.2d 788
(Mo. 1959), referred to Ryan but not to Weyerhaeuser, and quoted Prosser, Torts 46, at 251
(2d ed.), as saying: It is difficult to state any general rule or principle as to when indemnity
will be allowed and when it will not.
The Appellate Court of Illinois, in Moroni v. Intrusion-Prepakt, Incorporated, 24
Ill.App.2d 534, 165 N.E.2d 346, citing Ryan, applies the rule distinguishing between the
active and primary wrongdoer and the one that bears a passive relationship to the cause of
the injurythe very principle discarded by Weyerhaeuser, although the Illinois court said it
was the well settled law of this state.
The Iowa cases are not consistent. Neither are the New York cases. In 37 Iowa Law
Review 517, at 536, the writers of the article entitled Indemnity Between Negligent
Tortfeasors: A Proposed Rationale, say: "It is a good deal easier to list the cases in which
indemnity has or has not been allowed than it is to make sense out of them.
It is a good deal easier to list the cases in which indemnity has or has not been allowed
than it is to make sense out of them. It is well nigh impossible to work all of the indemnity
cases into a consistent whole, and the language which the courts have employed in explaining
their indemnity decisions is bewildering, to say the least.
The judgment for plaintiffs against Reid is affirmed. The judgment denying Reid relief on
his third-party claim against the subcontractor Center Air Conditioning, Inc., is affirmed. The
judgment for the plaintiffs against Center Air Conditioning, Inc., is reversed. The respective
prevailing parties shall be allowed their costs.
____________
80 Nev. 147, 147 (1964) Worthington Motors v. Crouse
WORTHINGTON MOTORS, a California Corporation, and CAL WORTHINGTON,
Appellants, v. ELIZABETH BARNDT CROUSE, SOPHIE BARNDT DE HART,
HOWARD DE HART, and AGNES BARNDT REDENBAUGH, Respondents.
No. 4656
March 17, 1964 390 P.2d 229
Appeal from the Fifth Judicial District Court, Nye County; Jon R. Collins, Judge.
Action by remaindermen against tenant per autre vie for waste. The trial court awarded
$5,000 compensatory damages and declared the tenancy forfeited and an appeal was taken.
The Supreme Court, McNamee, J., held that the waste did not allow forfeiture of the tenancy
or support the judgment awarding immediate possession to the remaindermen although the
grant of compensatory damages was justified.
Affirmed as modified.
[Rehearing denied April 20, 1964]
Jones, Wiener & Jones, of Las Vegas, for Appellants.
Leslie E. Riggins, of Reno, for Respondents.
1. Common Law; Waste.
Statute of Gloucester allowing forfeiture as a remedy for waste is not a part of the Nevada common law.
Theory that court of equity has inherent power to order forfeiture of a life estate for waste where life
tenant repudiates the life estate and claim a fee simple title could not be raised for the first time on appeal.
3. Waste.
Waste on property committed by tenant per autre vie did not allow forfeiture of the tenancy or support
judgment giving immediate possession to the remaindermen as owners in fee simple although grant of
$5,000 compensatory damages to remaindermen for waste committed was justified. NRS 40.150;
NRCP 54(c).
OPINION
Respondents commenced this action against appellants for waste of the Upper Hot Creek
Ranch in Nye County. The complaint alleges that under the will of Sophie E. Williams,
Elizabeth S. Barndt, her daughter, was devised a life estate in Upper Hot Creek Ranch, with
the remainder to respondents, who are the children of Elizabeth S. Barndt, or their successors
in interest. Elizabeth S. Barndt is still living, but through foreclosure proceedings her life
estate passed from her and eventually to appellant Worthington Motors. (Appellant Cal
Worthington is joined as a party because he is alleged to be the alter ego of Worthington
Motors.)
Eleven different acts of waste are alleged. The complaint prays for compensatory and
punitive damages, for a permanent injunction restraining further acts of waste, and for
forfeiture of the life estate. The appellants filed separate answers in which they deny the
allegations of waste. Appellant Worthington Motors also claims to be the owner in fee
simple, asks that its title as such be quieted of any claims of the respondents, and
counterclaimed against respondents for trespass.
At the conclusion of the trial, the court entered its findings of fact and conclusions of law,
and determined that Sophie E.
that Sophie E. Williams had acquired the Upper Hot Creek Ranch during her marriage with
Joseph T. Williams, Sr., as her separate property; that Joseph T. Williams, Sr., died in 1910,
and that Joseph T. Williams, Jr., acquired no interest in said ranch under the will of Joseph T.
Williams, Sr.; that Sophie E. Williams died in 1927 and devised to Elizabeth Barndt a life
estate therein; that the children of Elizabeth Barndt were devised the remainder of the Upper
Hot Creek Ranch upon the death of Elizabeth Barndt; that the life estate of Elizabeth S.
Barndt passed to Worthington Motors through foreclosure sale and different conveyances;
that no appeal was taken upon final distribution of the estate of Sophie E. Williams, and that
the predecessors in interest of Worthington Motors were parties to the probate proceedings
and contested the same; and that the appellants wilfully have committed and continued to
commit acts of waste on said ranch to its permanent injury causing damage in the sum of
$5,000.
The trial court concluded that Sophie E. Williams had had full title to the land and was
able to devise the same upon her death; that Joseph T. Williams, Sr., had no title which he
could devise; that Worthington Motors is a successor in interest of the life estate of Elizabeth
S. Barndt; and that neither Worthington Motors nor its predecessors in interest ever had more
than a life estate in said property.
The judgment as entered awarded respondents $5,000 and forfeited the tenancy per autre
vie of Worthington Motors in the Upper Hot Creek Ranch. Respondents were given
immediate possession of said property as owners in fee simple and it was adjudged that
Worthington Motors had no right, title or interest in said property.
Appellants admit that the findings of waste and damages in the sum of $5,000 are
supported by substantial evidence. The sole issue on appeal is whether the trial court erred in
granting forfeiture as a remedy for waste.
NRS 40.150 provides: Action for waste; judgment may be for treble damages. If a
guardian, tenant for life or years, joint tenant or tenant in common of real property commit
waste thereon, any person aggrieved by the waste may bring an action against him
therefor, in which action there may be judgment for treble damages."
by the waste may bring an action against him therefor, in which action there may be judgment
for treble damages.
It is appellants' contention that under this statute the court was empowered to render
damages only and not to declare a forfeiture. On the other hand, respondents contend that the
Statute of Gloucester (6 Edw. I, c. 5),
1
enacted in 1278, provides for a forfeiture in the event
of waste by a life tenant, that Nevada having adopted the common law likewise adopted this
statute, and that NRS 40.150 being consistent with the Statute of Gloucester both now exist in
pari materia as law in Nevada. If the Statute of Gloucester is part of the law of this state it is
conceded that the judgment appealed from is proper.
The Statute of Gloucester changed the common law punishment for waste to forfeiture of
the thing wasted and treble damages. 93 C.J.S., Waste 3; 67 C.J., Waste 10. The Statute
of Gloucester was ignored for more than 300 years in England after its enactment, and was
repealed in 1879. According to 2 Restatement, Property 198, this early English statute has
not become a part of the law of an American state in the absence of an express re-enactment
thereof. The automatic reception of early English statutes is restricted to those suitable to the
different conditions and situations of the New World. The English treatment of this statute as
obsolescent, together with the severity of the provisions for triple damages and forfeiture,
justify the position stated in this section.
5 Powell, Real Property 650, states that the Restatement has embodied the majority
view.
In IV Simes and Smith, The Law of Future Interests 1658 (1956), it is stated: While
there are a few indications in the early American reports that the Statute of Gloucester may
have been regarded as a part of the American law, it would seem that today it is not in
force in this country unless re-enacted in the form of a statute."
____________________

1
It is provided also, That a man from henceforth shall have writ of waste in the Chancery against him that
holdeth by Law of England, or otherwise for Term of Life, or for Term of Years, or a Woman in Dower. (2) And
he which shall be attainted of Waste, shall leese [lose] the thing that he hath wasted, and moreover shall
recompense thrice so much as the Waste shall be taxed at. * * * Statute of Gloucester (6 Edw. I, c. 5).
of Gloucester may have been regarded as a part of the American law, it would seem that
today it is not in force in this country unless re-enacted in the form of a statute.
In Smith v. Smith, 219 Ark. 304, 241 S.W.2d 113, the court stated: Forfeiture of the life
tenancy for the commission of waste is enforced only when specifically authorized by statute,
and in Arkansas we have no such statute. It is true that forfeiture and triple damages were
allowed by the Statute of Gloucester, enacted in 1278, 6 Edw. I, c. 5. But this statute soon
became obsolete in England and was finally repealed in 1879. The strict English law of waste
has never been appropriate to a new country like ours, in which timber must be cut to permit
the nation to expand through the cultivation of wooded areas. Tiffany, supra, 630. Hence it
is uniformly held in America that the Statute of Gloucester did not become a part of our
common law merely by the enactment of laws similar to Ark.Stats. 1947, 1-101, which
adopted English statutes of a general nature that were passed prior to 1607. Rest., Property,
198. Since our legislature has not re-enacted the English statute, the remedy of forfeiture is
not available in this State.
In Wise v. Potomac National Bank, 393 Ill. 357, 65 N.E.2d 767, it was contended that
Illinois adopted the common law of England as it pertains to waste as modified by the Statute
of Gloucester. The court, however, determined that since the Statute of Gloucester had fallen
into disuse in England the rule of forfeiture as provided therein was never enforced in Illinois.
The Supreme Court of Michigan in Schuman v. Schuman, 217 Mich. 184, 185 N.W. 717,
refused to recognize the forfeiture provisions of the Statute of Gloucester.
[Headnote 1]
It is clear to us that the decided weight of authority refuses to allow forfeiture as a remedy
for waste in the absence of a permissible statute. Nevada has no such statute. We conclude
that the trial court erred in determining that this state adopted the Statute of Gloucester as a
part of the common law.
[Headnote 2]
Respondents contend that aside from the Statute of Gloucester a court of equity has
inherent power to forfeit a life estate in a case where a life tenant repudiates the life estate and
claims a fee simple title in the property, and that under NRCP 54(c) the court was empowered
to grant such relief as the respondents were entitled, even if they had not demanded such
relief in their pleadings. So far as the record before us discloses, this theory was not raised in
the trial court and may not be raised here for the first time. Arley v. Liberty Mut. Fire Ins., 80
Nev. 5, 388 P.2d 576. In this connection, when equity permits a forfeiture it is usually the
result of a contractual relationship between the parties, but as stated in 3 Story's Equity
Jurisprudence, 1732 (14th ed. 1918), [i]t is a universal rule in equity never to enforce
either a penalty or a forfeiture. Therefore Courts of Equity will never aid in the devesting of
an estate for a breach of a covenant on a condition subsequent, although they will often
interfere to prevent the devesting of an estate for a breach of a covenant or condition.
[Headnote 3]
Whether the lower court was empowered under NRS 40.150 to award in its discretion
more than actual damages, we are not called upon to determine. Respondents did not appeal
from the judgment which awarded $5,000 compensatory damages, and counsel in oral
argument stated that he did not contend that such an award was inadequate for the waste
committed up to the time of the judgment.
2

The judgment is modified by striking therefrom the order terminating the estate per autre
vie of Worthington Motors and the order that the respondents are entitled to the immediate
possession of the said land. As so modified, the judgment is affirmed. Appellants to have
their costs.
____________________

2
Respondents' counsel's interpretation of his statement in oral argument is that the $5,000 award for damages
was adequate only if the judgment terminates the life estate.
____________
80 Nev. 153, 153 (1964) Riverside Casino v. J. W. Brewer Co.
RIVERSIDE CASINO CORPORATION, Appellant, v. J. W.
BREWER COMPANY, INC., a California Corporation, Respondent.
No. 4673
March 17, 1964 390 P.2d 232
Appeal from the Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Action to recover amount alleged to be due and owing under a certain lease agreement
embracing certain ice-making equipment. The trial court gave default judgment, and the
defendant appealed. The Supreme Court, Badt, C. J., held that entry of default judgment for
willful failure of corporate defendant's officers to appear for taking of pretrial depositions was
not abuse of discretion.
Affirmed.
Bradley & Drendel, Guild, Busey & Guild, and Leo P. Bergin, all of Reno, for Appellant.
Loyal Robert Hibbs, of Reno, for Respondent.
1. Judgment.
Entry of default judgment for willful failure of corporate defendant's officers to appear for taking of
pretrial depositions was not abuse of discretion. NRS 48.170: NRCP 30 and (b)-34, 33, 36 and (a), 37
and (b) (2) (iii), and (d).
On the 90th day after filing notice of appeal the district court lost jurisdiction to extend the time in which
to docket appeal and file record on appeal. NRCP 73(g).
3. Discovery.
The rule not requiring attendance if witness resides more than 40 miles from place of service does not
apply to parties. NRCP 45(d)(2).
4. Discovery.
That defendant corporation was in bankruptcy did not mean that there could be no effective officers in
existence, whose depositions could be taken.
OPINION
This action was commenced in the court below by respondent to recover from appellant
the sum of $6,645 alleged to be due and owing under a certain lease agreement embracing
certain ice-making equipment.
alleged to be due and owing under a certain lease agreement embracing certain ice-making
equipment.
The complaint was filed June 29, 1961. The period from that date to November 1, 1961,
was taken up largely in the settlement of the pleadings. In this process there were involved a
motion to dismiss, a demand for points and authorities, the filing of an amended complaint, a
motion for more definite statement, etc. Although respondent justifies the court's order for
default judgment partly upon such delays and although those delays may have indeed been
irksome to respondent, they resulted from steps which, under the rules, appellant was justified
in taking, and we dismiss the same from further consideration.
On November 1, 1961, respondent served a request for admissions to the effect that the
lease agreement was executed by the appellant corporation and that Jack Douglass, who
signed the same on behalf of appellant, was an officer authorized so to do. On November 10,
1961, appellant filed objections to the request for admissions on the ground that such request
called for legal conclusions rather than admissions of fact. On January 4, 1962, appellant
served its answer and counterclaim and filed same January 10, 1962. In the meantime, on
January 9, 1962, respondent had filed its reply to the counterclaim. On July 6, 1962,
respondent served and filed two interrogatories (1. What are the names, addresses, and
occupations of the witnesses that you will call at the trial of this matter? 2. To what facts do
you expect each of the witnesses to be called by you to testify?), and on the same day noticed
the hearing on appellant's objections to request for admissions for July 27, 1962. Appellant
objected to the interrogatories on the grounds (1) that what the appellant's witnesses would
testify to is immaterial and outside the scope of proper interrogatories; (2) that appellant does
not have knowledge as to what each of said witnesses would testify; (3) that if appellant were
to call in all of said witnesses and prepare their testimony it would be unduly burdensome
upon appellant, and that said interrogatory is made for the purpose of harassing the
appellant. On July 20, 1962, answer to Interrogatory 1 was filed, which stated the names,
addresses, and occupations of four witnesses to be called.
1962, answer to Interrogatory 1 was filed, which stated the names, addresses, and occupations
of four witnesses to be called. Interrogatory 2 was not answered. On July 6, 1962, appellant
not having noticed the hearing of its objections to respondent's requests for admissions, as
required by NRCP 36(a), respondent noticed appellant to appear to settle the objections, and a
hearing was had November 7, 1962, wherein the basic facts asked to be admitted were
admitted by appellant. On November 13, 1962, respondent served further interrogatories upon
appellant, and having obtained no answers to the same, respondent filed a motion for an order
compelling appellant to answer the interrogatories. Appellant thereupon served unsworn and
unsigned answers to the interrogatories contrary to the requirement of NRCP 33. At a hearing
to compel proper answers to the interrogatories, the trial court determined that appellant's
refusal to answer was without substantial justification and gave appellant 20 additional days
to make proper answers and ordered appellant to pay respondent $100 as and for attorneys'
fees and costs. Appellant has not paid the sum ordered. On January 25, 1963, appellant's
president filed an affidavit stating that he thought the unsigned and unsworn answers to the
interrogatories previously filed were true, but that the matters were not within his personal
knowledge or the personal knowledge of any officer of the corporation.
On February 6, 1963, respondent filed a notice of the taking of the depositions of
Raymond Spector, William Ehrens, S. W. Wageman, and Gary Harrigan, officers of appellant
corporation (to be taken in Reno February 15, 1963). On February 8, 1963, appellant filed a
motion supported by affidavit that the depositions be not taken on the ground that Spector,
Ehrens, and Wageman were not in Nevada and are residents of New York. The affidavit is
silent as to Gary Harrigan. The motion was heard on February 13th, at which time the court
allowed additional time, but ordered all noticed corporate officers to appear at respondent's
counsel's office on March 1, 1963, for the taking of the depositions. None of the officers
appeared at the time and place set, not even Gary Harrigan, the taking of whose deposition
appellant had not objected to.
Harrigan, the taking of whose deposition appellant had not objected to.
At no time did appellant seek any of the protective orders available under Rule 30 (b)
NRCP.
On March 17, 1963, pursuant to notice, respondent moved for judgment by default
pursuant to NRCP 37 and 37 (d). The motion was granted and judgment entered in favor of
the respondent in the sum of $6,645, plus attorney fees in the sum of $1,500, plus interest on
$6,645 at 7% from June 29, 1961. Appeal is from such judgment.
[Headnote 1]
The primary question raised by the appeal is whether the entry of the default judgment was
an abuse of discretion. Prior to the adoption of NRCP, the penalties for a party's refusal to
attend and testify at the trial, or to give his deposition before trial, or upon commission, or for
disobedience to a subpoena, etc., were provided under the provisions of NRS 48.170.
Provisions for discovery through the taking of depositions by written and oral interrogatories,
requirements for production of documents, answers to request for admission of facts and
genuineness of documents are provided generally by Rules 30, 31, 32, 33, 34, and 36, and the
sanctions provided in Rule 37. In place of seeking a contempt order for appellant's failure to
comply, respondent sought and obtained an order compelling respondent to answer the
interrogatories. Even at such hearing the trial court determined that appellant's refusal to
answer was without substantial justification but allowed an additional 20 days to make proper
answer.
Upon the failure of the four corporation officers, or any of them, to appear for the taking of
their depositions on March 1, 1963, as ordered by the court, it ordered default judgment in
accordance with the sanctions provided in NRCP 37(b) (2) (iii).
The actions of the appellant were more flagrant than those of the appellant who failed to
appear for the taking of her deposition in Schatz v. Devitte, 75 Nev. 124, 335 P.2d 783, in
which case the trial court concluded that the failure to appear was willful and this court held
there was no abuse of discretion in entering default.
held there was no abuse of discretion in entering default. Here the appellant willfully and
persistently evaded all of respondent's efforts under discovery procedures authorized by the
rules. As to the four officers of the corporation, the taking of whose depositions was duly
noticed and later continued by order of the court, it should be noted that no objection had
been made to the taking of the deposition of one of the officers who, it appears, resided in
Sparks, Washoe County, Nevada. The failure of the officers to appear cannot be considered
other than willful.
[Headnote 2]
Notice of entry of judgment was served May 8, 1963. Notice of appeal was filed June 6,
1963. Designation of record on appeal, dated September 5, 1963, was filed the following day.
1
On September 9, 1963, the court ordered that the appeal be had on the original papers in the
case, and on said date ordered that defendant have to and including September 9, 1963, in
which to docket its appeal and file its record on appeal.
2

[Headnote 3]
Appellant relies on NRCP 45(d) (2) as not requiring attendance if the witness resides more
than 40 miles from the place of service, etc. This rule however applies to witnesses and not
parties. Appellant cites seven cases to support its point. Respondent filed an answering brief,
successfully distinguishing all of such cases. Appellant filed no reply brief.
[Headnote 4]
Appellant contends that as defendant corporation was in bankruptcy, there could be no
effective officers in existence, whose depositions could be taken. No authority is cited in
support of this contention. It is without merit.
____________________

1
No sanction was sought for appellant's violation of NRCP 75.

2
After September 4, 1963 (the 90th day after filing notice of appeal), the district court lost jurisdiction to
extend time for this purpose. NRCP 73(g). No sanction was sought by respondent.
____________
80 Nev. 158, 158 (1964) State ex rel. Hamilton v. District Court
THE STATE OF NEVADA Upon The Relation of A. C. (ACE) HAMILTON, Petitioner, v.
SECOND JUDICIAL DISTRICT COURT of the State of Nevada and the
Honorable JOHN E. GABRIELLI, Judge thereof, Respondents.
No. 4737
March 17, 1964 390 P.2d 37
Original petition for writ of certiorari.
The Supreme Court held that denial of accused's motion for continuance was discretionary
and did not raise any question of court's jurisdiction and was not reviewable by certiorari.
Petition denied, and proceedings dismissed.
Earl M. Hill and James P. Logan, of Reno, for Petitioner.
Courts.
Denial of accused's motion for continuance was discretionary and did not raise any question of court's
jurisdiction and was not reviewable by certiorari. NRS 174.540, 177.060.
OPINION
Per Curiam:
Relator recites that he has been arraign in respondent court upon an information accusing
him of murder, and that said court on January 16, 1964, set time of trial to commence on
March 23, 1964; that on March 10, 1964, relator moved for a continuance upon the ground
that the name of one Henry Lumpkins is endorsed as a witness and that said witness testified
in the preliminary examination of this matter in the Justice's Court of Reno Township
September 20, 1963, and again on December 2, 1963; that on February 23, 1964, a criminal
complaint was filed in the Justice's Court of Reno Township accusing the said Henry
Lumpkins of perjury, and that a preliminary examination upon said perjury charge against the
said Henry Lumpkins has been set in the Justice's Court for April 1, 1964, and that no final
disposition can be made of said perjury charge prior to the commencement of relator's
trial on March 23, 1964; that on said trial, commencing March 23, 1964, manifest
injustice to defendant would result from a conviction based in part upon the testimony of
said Henry Lumpkins if the latter were subsequently convicted upon said perjury charge,
for in such case defendant would have been deprived of any opportunity to impeach the
credibility of said Lumpkins as a convicted perjuror.
80 Nev. 158, 159 (1964) State ex rel. Hamilton v. District Court
in the Justice's Court for April 1, 1964, and that no final disposition can be made of said
perjury charge prior to the commencement of relator's trial on March 23, 1964; that on said
trial, commencing March 23, 1964, manifest injustice to defendant would result from a
conviction based in part upon the testimony of said Henry Lumpkins if the latter were
subsequently convicted upon said perjury charge, for in such case defendant would have been
deprived of any opportunity to impeach the credibility of said Lumpkins as a convicted
perjuror.
Relator's motion for a continuance was denied. Relator asserts that the authority granted to
the respondent court by NRS 174.540 to direct the postponement of a trial upon sufficient
cause shown by either party by affidavit requires the court to exercise a legal discretion and
that under the circumstances such discretion was abused and the denial of his motion for a
continuance exceeded the jurisdiction of the respondent court; that such order is not
appealable under NRS 177.060 and that relator has no plain, speedy, or adequate remedy
other than certiorari. He asks that the order denying his motion for continuance be reviewed
and for such relief as to the court may seem just.
Matters concerning the arrangement of court's calendars and the granting or denial of
motions for continuances are almost invariably held to be a matter for the exercise of the
court's discretion and do not raise any question of the court's jurisdiction. Ex parte Groesbeck,
77 Nev. 412, 365 P.2d 491.
The petition for certiorari is hereby denied and the proceedings dismissed.
____________
80 Nev. 160, 160 (1964) Boyne v. State ex rel. Dickerson
ALBERT B. BOYNE, Assessor of Washoe County, Nevada; ROGER TEGLIA and RUTH
TEGLIA, Husband and Wife, Appellants, v. THE STATE OF NEVADA,
on the Relation of Harvey Dickerson, as Successor of ROGER D. FOLEY,
Attorney General, Respondent.
No. 4681
March 13, 1964 390 P.2d 225
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Action filed by Attorney General on behalf of State against county assessor and others for
judgment declaring certain statutes unconstitutional. The lower court held that classification
set forth in statutes permitting owner of land used exclusively for agricultural purposes and
having full cash value greater for other purposes than for agricultural purposes to contract
with county assessor for assessment and payment of taxes at full cash value for agricultural
purposes only unless he sells land or changes its use is unreasonable and unconstitutional, and
appeal was taken. The Supreme Court, Badt, C. J., affirmed on the opinion of the district
court.
Affirmed.
William J. Raggio, District Attorney, and David G. Parraguirre, Deputy District Attorney,
Washoe County, for Appellants.
General, Carson City, for Respondent.
1. Constitutional Law.
Generally, all presumptions are in favor of validity of statutes.
A classification made by the legislature will not be overthrown unless palpably unreasonable and
arbitrary.
Equality guaranteed under equal protection clause is equality under the same conditions and among
persons similarly situated; classifications must not be arbitrary and must be based upon some
difference in classes having substantial relation to legitimate objects to be
accomplished.
based upon some difference in classes having substantial relation to legitimate objects to be accomplished.
4. Taxation.
Generally, a partial exemption is not to be favored.
5. Taxation.
Classification set forth in statutes permitting owner of land used exclusively for agricultural purposes and
having full cash value greater for other purposes than for agricultural purposes to contract with county
assessor for assessment and payment of taxes at full cash value for agricultural purposes only unless he
sells land or changes its use is unreasonable and unconstitutional. NRS 361.313, 361.314; Const. art.
4, 20, 21; art. 10, 1.
OPINION
The nature of the action, the points of law involved, and the treatment and disposition
thereof, before this court, are in all respects the same as those in the court below. They were
treated by the learned district judge in his opinion and decision as follows:
This is an action for declaratory relief to declare unconstitutional Chapter 300, Statutes of
Nevada, 1961, and has been filed by the Attorney General on behalf of the State of Nevada
against Albert B. Boyne, Assessor of Washoe County and Roger and Ruth Teglia. It has been
presented to the Court upon plaintiff's Opening Brief and Defendants' Answering Brief.
The question presented herein grows out of the inevitable collision between problems
pertaining to the assessment of agricultural lands adjacent to or near urban subdivided
properties and involves the validity of an attempt by the Nevada Legislature to shift or defer
the burden of increased taxation which is one of the consequences of increased population
pressures.
The question is whether agricultural people against their will should be required to sell
their property or convert it to a higher and better use by reason of higher assessments and
higher taxes based thereon. Opposed to that view are certain well recognized statutory and
constitutional tax provisions which relate to the principles of uniformity and equal
treatment under our law of taxation.
of uniformity and equal treatment under our law of taxation.
Because of this situation, the Nevada Legislature in 1961 passed Chapter 300 (NRS
361.313) which provides as follows:
1. Any owner of land which is used exclusively for agricultural purposes, but has a full
cash value for other purposes greater than its full cash value for agricultural purposes, may
contract with the county assessor for the assessment of and payment of taxes on such land as
provided in this section and NRS 361.314.
2. The contract may be entered into prior to November 1 of any year, and shall provide:
(a) That the land shall be assessed at its full cash value for agricultural purposes only,
and at the same time, the assessor shall make and enter as a notation on the assessment roll a
potential assessment based upon the full cash value of the land for purposes other than
agricultural purposes.
(b) That the owner shall pay taxes only on the basis of the assessment of the land for
agricultural purposes, unless he sells the land or changes its use.
(c) That when the land is sold or its use changed, the owner will pay in additional taxes
the difference between the taxes paid or payable on the basis of the assessment for
agricultural purposes during the 5 years immediately preceding the year in which the sale or
change of use occurs and the taxes which would have been paid or payable during such
period on the basis of the potential assessment for purposes other than agricultural purposes.
(d) That if the land is sold or its use changed within 5 years of the date of the contract,
the owner will pay such additional taxes for the year in which the contract was made and for
each year intervening between such year and the year in which the sale or change of use
occurs.
(e) That the additional taxes due on the basis of the potential assessment shall become a
lien upon the land on the date the land is sold or its use changed.
3. No contract entered into pursuant to the provisions of this section shall be valid until
recorded in the office of the county recorder of the county or counties in which all or any part
of the land is located.'
As appears from the Attorney General's Opening Brief, page 4,
N.R.S. 361.313 and 361.314 were added to the Nevada Revised Statutes by virtue of
Chapter 300, Statutes of Nevada 1961. They govern the manner of taxing real property used
for agricultural purposes. In substance, the statutes authorize assessment of ad valorem taxes
on such property at its full cash value for agricultural purposes only, even though the land
may have a higher full cash value if other uses are considered.'
And in a footnote, thereto, it is said:
Accordingly, if the owner of the land does not sell or change its use, he may continue to
pay taxes based on an assessment for agricultural use only. If the owner should change the use
of the property or sell it, he will be taxed on the difference between the assessed value for
agricultural purposes and the assessed value for all other purposes for a five-year period
preceding the sale or change in use. If the period from the date of execution of the prescribed
agreement with the county clerk to the sale or change of use is shorter than five years, the
landowner will pay the difference for this period.'
[A]pplicable Constitutional provision[s] are * * * as follows:
[Article X] Section 1. 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 * * * [shares of stock * *
*, bonds, mortgages, notes, bank deposits, book accounts and credits, and securities and
choses in action of like character are deemed to represent interest in property already assessed
and taxed, either in Nevada or elsewhere, and shall be exempt. * * *]'
Section 20 of Article IV of the Nevada Constitution, in part, provides as follows: " 'The
legislature shall not pass local or special laws in any of the following enumerated
casesthat is to say:
The legislature shall not pass local or special laws in any of the following enumerated
casesthat is to say:
* * * * *
For the assessment and collection of taxes for state, county, and township purposes;
* * *'
Section 21 of the same article reads as follows:
In all cases enumerated in the preceding section, and in all other cases where a general
law can be made applicable, all laws shall be general and of uniform operation throughout the
State.'
At the time NRS 361.313 was enacted into law, numerous opinions were given
concerning its validity, and it was the apparent consensus that such a statute was
unconstitutional upon a variety of grounds. Since then, however, our research has disclosed
that in some instances, statutes of some of the predominantly agricultural states have been
upheld as constitutional, either because of constitutional provisions which recognize inherent
differences or for other reasons, perhaps of an economic necessity.
In any event, our inquiry is to be confined to Nevada, its constitution and the laws made
thereunder.
[Headnotes 1, 2]
In view of the general rule that all presumptions are in favor of the validity of statutes and
that a classification made by the Legislature will not be overthrown unless it is palpably
unreasonable and arbitrary, I think, that any inquiry into the constitutionality of a statute
should be approached with considerable trepidation.
[Headnote 3]
The equality guaranteed by the equal protection clause is equality under the same
conditions and among persons similarly situated. The Legislature may make reasonable
classifications with respect to persons, businesses, property and other activities but those
classifications must not be arbitrary and must be based upon some difference in the classes
having a substantial relation to the legitimate object to be accomplished.
With respect to tax classifications at page 669, it is said in Rottschaefer on Constitutional
Law:
* * * A classification based on the location of the property within the taxing district is
generally held invalid, although the assessment of agricultural lands situated within a city's
limits on a less onerous basis than the more urban property within those limits is at times
sustained. * * *'
I have cited and underlined this particular phrase because it is indicative of the split of
authority in cases of this kind; a difference which is referred to by counsel for the defendants
whose frankness in fairly citing the law is most appreciated.
The applicable cases have been collected in 111 ALR 1486, in which it is said:
While there is some conflict among the authorities, a majority of the cases from
jurisdictions whose constitutions require taxes to be uniform hold that classification of land
for the purpose of property taxation as agricultural and otherwise results in an
unconstitutional discrimination. However, some constitutions apparently do not require taxes
to be uniform.'
Nevada has such a requirement of uniformity. (Article X, Section 1)
The authorities, since 1937, when the annotation was prepared, likewise continue to
illustrate this difference between the majority and minority rule.
It appears that this problem has been approached from the standpoint of three different
theories; first, that a legislature, in the absence of constitutional provision, has no authority to
differentiate between ad valorem tax requirements; second, that such a division between
agriculture and non-agricultural lands is an unreasonable and arbitrary classification; and
third, that such an attempted differentiation creates an illegal partial exemption.
Whatever theory or theories may be applicable to the particular problem, it is apparent
that numerous instances have occurred where courts have referred to the general rules
concerning classifications for tax purposes and yet, with all that, it is equally apparent that
only an examination of the particular facts will support or sustain the application of a
theory or theories.
only an examination of the particular facts will support or sustain the application of a theory
or theories.
[Headnote 4]
It is self-evident under Nevada Law that no special laws can be passed for the
assessment and collection of taxes for state, county and township purposes' (Article IV,
Section 20); that all laws shall be general and of uniform operation throughout the State'
(Article IV, Section 21); that 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' (Article X, Section 1); that all ad valorem taxes should
be of a uniform rate or percentage' (State v. Eastabrook, 3 Nev. 173, 177); and that as a
proposition of general rule of law, a partial exemption is not to be favored (State Tax
Commission v. Wakefield (Md), 161 A.2d 676). Therefore, in deciding the constitutionality
of NRS 361.313-314, the ancient principles of uniformity, equality, justness and fairness
permeate the law, principles which cannot now be ignored. Applying those precepts, it is
eminently clear that the owners of agricultural property have been given a distinct tax
advantage over other real property owners, something which I do not believe was
contemplated by the framers of our Constitution. On the other hand, there is a clear
constitutional mandate [that the legislature provide a uniform and equal rate of assessment
and taxation and secure a just valuation for taxation of all property].
This problem has been submitted to me upon the pleadings and briefs. It has not been
submitted upon an agreed statement of facts or upon any oral or documentary evidence.
Hence any advantages to the rancher or the community for such a classification are only the
subject of conjecture.
While there may be some valid reasons advanced which would justify preferential
treatment to a rancher, such reasons are fast dissolving into the realm of speculation where
the impact of an urban explosion has engulfed the one time agricultural operation, which
inevitably must give way to urban encroachment. In this connection one of the possible but
unmentioned reasons assigned to this preferential treatment, to-wit: that the rancher,
against his will, must sell to pay the cost of mounting taxes is not necessarily true
because I should like to point out that urban encroachments, in many instances, have
increased property valuations to the selling owner's advantage.
this connection one of the possible but unmentioned reasons assigned to this preferential
treatment, to-wit: that the rancher, against his will, must sell to pay the cost of mounting taxes
is not necessarily true because I should like to point out that urban encroachments, in many
instances, have increased property valuations to the selling owner's advantage.
[Headnote 5]
After considering the weight of authority, Nevada constitutional principles and authorities
as well as the general considerations to which reference has been made, I conclude that the
classification set forth in NRS 361.313-314 is unreasonable and unfairly discriminates in
favor of one group against another and, therefore, is declared unconstitutional and of no force
and effect.
We adopt the opinion of the district court as our opinion and cite in addition the following
cases: Custer County v. St. Louis-San Francisco Ry. Co., 201 Okl. 528, 207 P.2d 774;
Corporation of Sevierville v. King, 182 Tenn. 143, 184 S.W.2d 381; Simmons v. Ericson, 54
S.D. 429, 223 N.W. 342. Cf. Switz v. Kingsley, 69 N.J.Super. 27, 173 A.2d 449; State Tax
Commission v. Wakefield, 222 Md. 543, 161 A.2d 676.
The judgment is affirmed. No costs are awarded.
____________
80 Nev. 168, 168 (1964) Levine v. Remolif
LOIS ANN LEVINE and STEVEN DAVID LEVINE, Minors by Their Guardian ad Litem,
LAWRENCE MUSHKIN; and LOIS ANN LEVINE and STEVEN DAVID LEVINE, by
Their Guardian ad Litem, LAWRENCE MUSHKIN, as the Heirs of CHARLES LEVINE,
Deceased, Appellants, v. HENRY C. REMOLIF, Respondent.
No. 4652
March 30, 1964 390 P.2d 718
Wrongful death action growing out of automobile collision. The trial court granted motion
to strike testimony of alleged expert for plaintiffs, granted motion by defendant for directed
verdict, and entered judgment for defendant, and plaintiffs appealed. The Supreme Court,
McNamee, J., held that testimony of expert as to speed of vehicles was inadmissible where
based on photographs which did not disclose damage to frames of vehicles and on diagram
which was drawn by police officer inexperienced and untrained in reconstructing automobile
accidents and on some information furnished by another officer.
Affirmed.
Morton, Galane, of Las Vegas, for Appellants.
Clarence Sundean and Carl J. Christensen, of Las Vegas, for Respondent.
Rulings made prior to judgment may be considered on appeal from judgment if opening brief properly
specifies the rulings as error of law. NRCP 72.
Part of appeal taken from special order after judgment would not be considered where neither brief filed
on appeal nor oral arguments raised issue presented thereby.
3. Evidence.
Testimony of alleged expert as to speed of vehicles involved in collision at intersection was inadmissible
where based on photographs which did not disclose damage to frames thereof and on diagram which was
drawn by police officer inexperienced and untrained in reconstructing automobile accidents and on some
information furnished by another officer.
4. Negligence.
Proof of negligence cannot be left to mere speculation or conjecture.
5. Evidence.
Determination of competency of expert witness is largely in discretion of trial judge.
6. Evidence.
Brushmarks which were shown in photographs and were made on pavement after impact and diagram
which was not drawn to scale by police officer inexperienced and untrained in reconstructing automobile
accidents did not in themselves indicate that defendant was negligent in being involved in collision with
deceased motorist who entered intersection from right through a yield sign. NRS 484.164.
7. Automobiles.
Indications of speed or negligence by supportive arguments of plaintiffs' counsel did not present fact
question for jury.
OPINION
Charles Levine died as a result of a collision in Las Vegas between the Ford car he was
driving and a Thunderbird car driven by respondent. This is a wrongful death action brought
by the children of Charles Levine.
Respondent was proceeding south on Sixth Street toward the intersection of Sixth and
Canosa. Deceased was approaching Sixth Street on Canosa from the west. Eastbound traffic
on Canosa was regulated by a YIELD sign, which under NRS 484.164 required drivers
approaching the sign to reduce speed or stop, if necessary, and yield the right of way to any
vehicle in the intersection or approaching on another highway so closely as to constitute an
immediate hazard.
1

Respondent testified he was traveling approximately 25 miles per hour on Sixth Street, and
as he approached the intersection he slowed down to between 15 and 20 miles an hour, and at
the moment of impact, I was nearly stopped. He further testified that the Ford car entered
the intersection going within the vicinity of 40 miles an hour."
____________________

1
The parties hereto have assumed that both this state statute and the city ordinance pertaining to YIELD
right-of-way signs are applicable. We do not intend so to hold. They have similar provisions and we have quoted
from the state statute because it possibly is more favorable to the appellants.
40 miles an hour. The only other eye witness was James Marvin Melvin, who was 16 1/2
years old at the time. He testified that the Ford went through the YIELD sign without
stopping, at a speed he estimated to be 40 to 50 miles per hour. He did not see the
Thunderbird until after the impact. The cars were traveling at right angles to each other. The
front of the Thunderbird collided with the rear left side of the Ford. Twelve feet of skid marks
showed that the Thunderbird had applied its brakes prior to the impact. There were no skid
marks from the Ford prior to the impact. Various photographs and a diagram of the scene of
the accident, prepared by two police officers, which showed the intersection, place of impact,
skid marks, and where the two cars came to rest, were received in evidence. The accident
happened at 8:00 P.M., on August 15, 1961. It was dusk and each car had its headlights on.
[Headnotes 1, 2]
After appellants and respondent had presented their evidence, respondent moved to strike
all of the testimony of Stephen E. Blewett on the ground that it was incompetent. The court
concluded that witness Blewett had no definite criteria upon which he could base a scientific
conclusion as to the speed of either one of the vehicles, and his testimony, for that reason, is
nothing more than a guess and is incompetent. The motion to strike Blewett's testimony was
granted. Thereupon respondent moved the court for a directed verdict pursuant to NRCP
50(a) upon the ground that no evidence was introduced sufficient to sustain a verdict for the
appellants based upon the negligence of respondent. This motion also was granted and the
court entered a judgment for the respondent. Appeal is from the judgment and from the order
denying a new trial.
2
Several errors are assigned but only two require consideration.
____________________

2
Appellants' notice of appeal states that the appeal also is from certain rulings made prior to judgment. NRCP
72 does not provide for an appeal from such orders; they may be considered on an appeal from the judgment if
the opening brief properly specifies such rulings as errors of law. The appeal was taken also from one special
order after judgment, but that part of the appeal will not be considered because neither the briefs filed on appeal
nor the oral arguments in this court have raised the issue presented thereby.
Several errors are assigned but only two require consideration.
Did the court err in striking the testimony of witness Blewett?
[Headnote 3]
Blewett's testimony was material to the speed of the two vehicles. With respect to the
speed of the Thunderbird, his testimony was based entirely upon those exhibits in evidence,
to wit, the photographs of the scene of the accident and of the vehicles after they had come to
rest, and the diagram made by two police officers, which gave their version of the movements
of the two vehicles prior to and after impact. With respect to the speed of the Ford, his
testimony was based on said photographs and diagram, and also upon certain tests he made
with a Ford car at the scene of the accident several months after the accident. At no time did
he consider the coefficient of friction.
While the photographs might have accurately depicted the outward appearance of the
vehicles immediately after the accident they did not disclose the damage to the frames of the
vehicles which could only be revealed from an examination of the cars themselves. Blewett
had never seen either of the vehicles. The diagram upon which Blewett based a material part
of his testimony was drawn by a police officer (some information thereon having been
furnished to him by another police officer) who, according to the proof of appellants' own
counsel, was inexperienced and untrained in reconstructing automobile accidents. Said
diagram was partly a result of the conclusions and interpretations of the police officer as to
the distances and the paths of the vehicles after impact. Furthermore the diagram was not
drawn to scale. The lower court properly concluded that the testimony of Blewett, that he was
able to determine from such a foundation with any degree of accuracy the speed of either
vehicle immediately prior to impact, was incredible.
In Twidwell v. Davidson, 54 Wash.2d 75, 338 P.2d 326, the court held that it was error to
permit an expert to usurp the function of the jury based solely upon an examination of the
photographs and of a diagram drawn by one party showing the approximate positions of
the two vehicles at the time of and after the impact. "If this practice is to be permitted,
the trial of automobile negligence cases will be a contest between expert witnesses who,
upon examining the exhibits and hearing the testimony,[3] will advise the jury which
party should recover."
In Lee v. Baker, 77 Nev. 462
examination of the photographs and of a diagram drawn by one party showing the
approximate positions of the two vehicles at the time of and after the impact. If this practice
is to be permitted, the trial of automobile negligence cases will be a contest between expert
witnesses who, upon examining the exhibits and hearing the testimony,
[3]
will advise the
jury which party should recover.
In Lee v. Baker, 77 Nev. 462, 366 P.2d 513, we held that it was error to receive in
evidence an exhibit made by a person who did not witness the accident, containing the
conclusions of the maker as to the route of the two cars prior to impact, the point of impact,
and the course taken by the cars after impact, supplemented in part by unintelligible and
estimated distances when the maker thereof was not called as a witness subject to
cross-examination. In the present case, the maker of the diagram was examined and
cross-examined, and the diagram was received in evidence without objection; however, as
stated before, the witness was inexperienced and untrained in reconstructing automobile
accidents, and his conclusions to a substantial degree were a result of guesswork.
[Headnote 4]
In granting the motion to strike Blewett's testimony the trial court properly decided that
Blewett had no criteria upon which he could reach a conclusion as to the speed of either
vehicle. His conclusions in this respect based not on facts but on his assumptions from the
photographs which did not fully disclose the total damage to the cars, and from a diagram
which to a substantial degree was the result of the conclusions of the maker, were mere
speculation, conjecture, and guess. Proof of negligence cannot be left to mere speculation or
conjecture. Johnson v. Brown, 77 Nev. 61, 359 P.2d 80.
[Headnote 5]
The determination of the competency of an expert witness is largely in the discretion of the
trial judge. So. Nevada Plumbing v. Adelson, 79 Nev. 233, 381 P.2d 232.
____________________

3
Blewett heard no testimony in the present case.
Appellants recognize this rule, but feel that in striking Blewett's testimony the court
abused its discretion. We find no abuse.
[Headnote 6]
With the testimony of Blewett stricken, the record is devoid of any evidence which would
justify a verdict for the appellants. The only evidence remaining, which appellants could rely
upon as indicating negligence on the part of the respondent, would be the brushmarks shown
in the photographs made on the pavement after the impact and also the diagram. In our
opinion, these in themselves do not indicate that respondent was negligent and an inference
therefrom that respondent was speeding would be merely a supposition or conjecture. In fact,
Jacob Jurmain, a highly qualified expert who was not subjected to cross-examination and
whose testimony was not contradicted, stated that from such facts alone and without
considering the coefficient of friction it was not possible to estimate the speed of either car
prior to impact.
[Headnote 7]
Appellants' evidence indicates merely that an automobile accident occurred, that two cars
were damaged, and that a person died as a result thereof. The only indications of speed or of
negligence on the part of the respondent are the suppositive arguments of appellants' counsel
which do not present a fact question for the jury. Cf. Bolt v. Davis, 70 N.M. 449, 374 P.2d
648. No fact question of negligence on the part of the respondent having been presented
which would require its submission to the jury, we conclude that the judgment for the
respondent was proper. NRCP 50 (a).
The motion for new trial was based on the alleged errors committed by the lower court.
Since we have determined that the lower court did not err, the denial of the motion for a new
trial was proper.
Affirmed.
____________
80 Nev. 174, 174 (1964) Abbott v. Miller
EVA D. ABBOTT, RICHARD E. ABBOTT, and EL RANCH-OTEL INC., a.k.a.
EL RANCH-OTEL, INC., a Corporation, Appellants, v. E. W. MILLER and
NITA H. MILLER, Respondents.
No. 4680
March 30, 1964 390 P.2d 429
Appeal from summary judgment of the First Judicial District Court, Ormsby County;
Frank B. Gregory, Judge.
Declaratory relief action seeking cancellation of agreement for construction of building
and for lease. The trial court entered summary judgment for the plaintiffs, and the defendants
appealed. The Supreme Court, Thompson, J., held that pleadings and affidavits received on
motion for summary judgment raised substantial fact issues precluding summary judgment.
Reversed.
Bradley & Drendel and Leo P. Bergin, of Reno, for Appellants.
Laxalt, Rosa & Laxalt, of Carson City, for Respondents.
1. Assignments.
Provision of agreement against assignment does not preclude transfer of rights thereunder by operation of
law.
2. Assignments.
Fact that divorce court transferred interest of husband in motel to his wife in settlement of community
property rights did not constitute breach of covenant against assignment included in agreement previously
signed by husband and wife for construction of building and for lease.
3. Assignments.
Where bilateral contract forbids assignment, it becomes a matter of interpretation as to what is meant.
4. Judgment.
On motion for summary judgment, trial court is precluded from drawing inferences favorable to moving
party.
5. Judgment.
Every favorable intendment must be accorded party against whom motion for summary judgment is
made.
6. Judgment.
Declaratory relief action seeking cancellation of agreement for construction of building and for lease,
pleadings and affidavits received on motion for summary judgment raised substantial fact issues precluding
summary judgment.
OPINION
We are asked to review a summary judgment in a declaratory relief action. NRCP 56(a).
The judgment canceled an agreement between the Millers (plaintiffs) and the Abbotts and
their assignee El Ranch Otel, Inc. (defendants), and removed the cloud cast upon the Millers'
title to certain land by reason of the agreement. We reverse, for there exist genuine issues of
material fact to be resolved.
The record shows that on March 9, 1959 the Millers and the Abbotts entered into a written
agreement for construction of a building and for lease. In short, the agreement obligated the
Millers to construct a building suitable for the operation of a bar, restaurant and casino on a
corner parcel of land adjoining the El Ranch Otel, a motel which the Abbotts were
purchasing. The cost of the building was to be not less than $40,000 nor more than $50,000.
The plans and specifications therefor were to be jointly approved. Upon completion of
construction the Abbotts had a 5-year lease, and were to pay monthly rent in a sum equal to
1% of the Millers' total investment in the land and improvements. (The Millers had bought
the land for $20,000this cost plus the building cost would require a monthly rental of
between $600 and $700.) During the interim period, viz., from April 1, 1959 to building
completion, the Abbotts were to pay rent of $100 per month. The agreement and lease could
be assigned by the Abbotts, without Millers' consent, to a corporation to be formed and
controlled by them, and it was assigned to El Ranch Otel, Inc. Additionally, the agreement
specifically referred to a contract of sale dated February 17, 1959, between William M.
Campbell and Eileen M. Campbell as sellers, and Richard E. Abbott and Eva D. Abbott as
buyers (which contract related to the sale and purchase of the adjoining motel, the El Ranch
Otel), and provided that, should the Abbotts default in their agreement with the Millers, Mr.
and Mrs. Campbell could cure the default and take over the Abbotts' position.
The Miller-Abbott agreement did not require construction of the building within a specific
period. It was to be done as soon as practical after the plans and specifications had been
approved. So far as the record shows, plans and specifications were never prepared, nor was
construction commenced. Shortly after the agreement was made, El Ranch Otel, Inc.
(Abbotts' assignee) hired Savini Construction Company to remove certain buildings from the
corner parcel in question so that the Millers could proceed with construction. About $6,000 of
the bill submitted by Savini for its work was not paid by El Ranch Otel, Inc., the latter
contesting its validity. In 1960 the Carson City Nugget, Inc. loaned El Ranch Otel, Inc.
$4,000. As of March 1963 there remained owing and past due on that obligation $3,347.85. In
October 1961 the Abbotts were divorced. The decree gave Mrs. Abbott all of Mr. Abbott's
interest in the El Ranch Otel, Inc. In 1962 the Campbells (who had sold to the Abbotts the
adjoining motel, El Ranch Otel, and had taken a note for the principal balance and a trust
deed as security) declared the Abbotts in default and, as beneficiaries, purchased the property
at a trustee's sale. In addition, the Campbells paid ad valorem taxes of $3,536 assessed against
the motel property, which the Abbotts were obliged to pay but did not.
Because of the uncertain financial position of El Ranch Otel, Inc., the Millers chose not to
proceed with the construction of the proposed bar, restaurant and casino. Instead they
commenced this suit for declaratory relief, asking the court to announce that they were
relieved from all contractual responsibility to the Abbotts or El Ranch Otel, Inc.
[Headnotes 1-3]
Their charge was threefold. First, the Millers assert that all parties to the agreement
contemplated that Richard E. Abbott and his wife would control the corporation together. In
seeking to sustain this position, they point to the paragraph of the agreement permitting the
Abbotts to assign their interest therein (without the Millers' consent) only to a corporation to
be formed and controlled by them (the Abbotts). Thus (the Millers argue), later, when the
court, in a divorce action, divested Mr.
argue), later, when the court, in a divorce action, divested Mr. Abbott of his interest in the
corporation and gave it to Mrs. Abbott, the covenant relating to assignment was breached. We
find no merit in this contention. The provision against assignment does not preclude a transfer
of the rights thereunder by operation of law. Trubowitch v. Riverbank Canning Co., 30
Cal.2d 335, 182 P.2d 182. The divorce court transfer of Mr. Abbott's interest in El Ranch
Otel, Inc. to Mrs. Abbott was apparently no more than a settlement of community property
rights. In such circumstances the covenant against assignment was not broken. Buck v.
Cardwell, 161 Cal.App.2d 830, 327 P.2d 223. In any event, where a bilateral contract forbids
assignment, it becomes a matter of interpretation as to what is meant. 2 Williston, Contracts,
Rev. Ed. 1217. Here, the affidavits received on the motion for summary judgment are in
direct conflict on the issue of corporate control, one side (the Millers) insisting that Mr.
Abbott's presence was necessary, and the other (El Ranch Otel, Inc. and Mrs. Abbott) urging
the opposite.
Next, the Millers contended that the purpose of the said agreement was to enable the
defendants (the Abbotts and El Ranch Otel, Inc.) to conduct a restaurant, bar and casino
business, having the personal attention of the defendant Richard E. Abbott. The agreement
simply does not contain a provision requiring Mr. Abbott's personal attention to the business,
and the affidavits received on the summary judgment motion are in direct conflict on the
point.
Finally, the Millers alleged that the contracting parties agreed to postpone construction of
the building until El Ranch Otel, Inc. was financially able to furnish it. The expected cost of
furnishing was estimated at $25,000 to $30,000. This charge was denied by the answer. The
record is devoid of evidence by affidavit or otherwise, from either side, touching upon the
alleged agreement to postpone construction. However, this disputed contention (that the
parties agreed to postpone construction until El Ranch Otel, Inc. was financially able to
furnish and equip the building) is coupled with the assertion that El Ranch Otel, Inc. is
insolvent in the sense that it was and is unable to pay its debts as they mature.
the assertion that El Ranch Otel, Inc. is insolvent in the sense that it was and is unable to pay
its debts as they mature. The central question on this appeal is whether the showing made on
the summary judgment motion on this phase of the case was sufficient to permit the trial
court to conclude that the Millers were entitled to the relief requested as a matter of law.
[Headnotes 4, 5]
The legal basis for the Millers' position is Restatement, Contracts 287.
1
The Millers
contend that the record conclusively demonstrates that the El Ranch Otel, Inc. is insolvent
in the sense used by the Restatement. They direct our attention to the $6,000 disputed
obligation owing Savini Construction Company; the $3,347.85 past due debt to the Carson
City Nugget Inc.; and particularly to the glaring fact that the corporation defaulted on the
purchase of the adjoining motel property and the former owners lawfully re-acquired it and,
in addition, paid delinquent ad valorem taxes thereon. They stress the fact that the
corporation, in opposition to their summary judgment motion, did not offer factual
information to show that it could perform the contract in question, nor did it attempt to
explain its financial defaults in the particulars mentioned. Their argument, though persuasive,
cannot preclude a trial on the merits. Of course, it is plain from the evidence offered that El
Ranch Otel, Inc. did not pay the mentioned obligations and, had there been a full trial,
perhaps the court in such circumstances could reasonably infer that the corporation's failure to
pay was due to its inability to do so, ergo, insolvency. However, on a motion for summary
judgment, the trial court is precluded from drawing inferences favorable to the moving
party.
____________________

1
The section reads: (1) In promises for an agreed exchange a promisor need not perform at the time fixed
for performance of his promise if performance of the exchange is uncertain because the other party is insolvent,
adjudicated a bankrupt, or his property taken under a receivership; or a petition in bankruptcy or for a receiver is
pending against him, unless performance of the exchange is rendered, tendered, or made reasonably certain by
security. If the promisor reasonably and materially changes his position, or a longer time than is permissible
under the contract elapses, before performance of the exchange is rendered, tendered or secured, the duty of the
promisor is discharged.
(2) A person is insolvent within the meaning of the Restatement of this Subject when he is unable to pay his
debts as they mature.
judgment, the trial court is precluded from drawing inferences favorable to the moving party.
The opposite is true. Every favorable intendment must be accorded the party against whom
the motion is made. Smith v. Hamilton, 70 Nev. 212, 265 P.2d 214; Parman v. Petricciani, 70
Nev. 427, 272 P.2d 492; Franktown v. Marlette, 77 Nev. 348, 364 P.2d 1069. With this guide
before us, we must view the record only as showing that the specified debts were not paid,
instead of showing insolvency.
[Headnote 6]
There remains one further point for decision. One of the principal reasons advanced below
and here to discharge the Miller-Abbott agreement is that its purpose has become frustrated.
See Restatement, Contracts 288; Corbin on Contracts, Vol. 6, 1353 et seq.; cf. comment
46 Mich.L.Rev. 224, Impracticability of Performance as an Excuse for Breach of Contract.
The argument is simply this. When the agreement was made the parties expected that Mr. and
Mrs. Abbott would, together, manage the motel, bar, restaurant and casino. (Mrs. Abbott was
to operate the motel, and her husband the bar, restaurant and casino.) When the Abbotts were
divorced and Mr. Abbott divested of his interest in the El Ranch Otel corporation, the
expectations of the agreement were partially frustrated. Later when the corporation lost the
motel for failure to make the payments promised, total frustration occurred. Though the
record before us offers a foundation for such an argument, it is not sufficiently complete to
permit any court to declare, as a matter of law, that the agreement is discharged on this
ground. The part Mr. Abbott was to play is a disputed fact (as previously indicated in
discussing the first and second contentions). Nor is it at all clear that the Miller-Abbott
agreement was contingent upon the Abbotts performing their obligation to Mr. and Mrs.
Campbell, from whom they were purchasing the motel, with the result that a default upon one
contract would operate as a default upon the other. The agreement itself did not so provide;
nor does the record before us contain the papers involved in the Campbell-Abbott motel sale.
Campbell-Abbott motel sale. Though there are circumstances reflected in the record from
which a court could, perhaps, infer that the two transactions (Miller-Abbott and
Campbell-Abbott) were intended to be interrelated and dependent upon one another, such an
inference is not permissible on a summary judgment motion. As before indicated, on a
motion for summary judgment, all favorable inferences are to be given the party against
whom the motion is made. Accordingly, here we must infer that the Miller-Abbott bar,
restaurant and casino agreement and the Campbell-Abbott motel agreement were, and are,
separate transactions. Treating them separately, as we must at this stage of the case, there can
be no legal justification for the summary judgment entered below.
Reversed and remanded for a trial on the merits.
____________
80 Nev. 180, 180 (1964) Farnham v. Farnham
GRACE W. FARNHAM, Appellant and Cross-Respondent, v.
GERALD M. FARNHAM, Respondent and Cross-Appellant.
No. 4684
April 6, 1964 391 P.2d 26
Appeal from the Eighth Judicial District Court, Clark County; John Mowbray, Judge.
Action upon a foreign judgment for money. The trial court entered judgment for defendant
and plaintiff appealed, and defendant cross-appealed. The Supreme Court, Thompson, J., held
that Arizona judgment which was not challenged on ground it had been procured by fraud, or
on ground of satisfaction, was entitled to full faith and credit, and validity of such judgment
could not be challenged on theory it was based on a Michigan decree which invalidated a
state decree of divorce.
Earl & Earl, of Las Vegas, for Grace W. Farnham.
Ruymann, Hilbrecht & Jones, of Las Vegas, for Gerald M. Farnham.
1. Divorce.
Arizona money judgment which was not challenged on ground it had been procured by fraud, or on
ground of satisfaction, was entitled to full faith and credit, and validity of such judgment could not be
challenged on theory it was based on a Michigan decree which invalidated a state decree of divorce.
2. Judgment.
In a suit to enforce a foreign money judgment, a court may not look behind the judgment and examine the
cause of action upon which it was based as the basis for not according such judgment full faith and credit.
3. Divorce.
A valid ex parte divorce entered in the state at the domicil of the husband did not end wife's right to
support where the decree was silent on the question of alimony, and under the circumstances, a Michigan
judgment obtained by wife for alimony was valid and would have been entitled to full faith and credit if
suit thereon were brought in the state.
OPINION
This is an action upon a foreign judgment for money. The defendant (judgment debtor)
won below. The trial court refused to give the foreign judgment full faith and credit. We
reverse, with directions, for the reasons hereinafter expressed.
The parties formerly had been wife and husband. They were married in Michigan in 1944.
Later, conflict developed. On June 27, 1957, Gerald commenced a divorce action in
Michigan. Grace appeared and filed a cross-bill for separate maintenance, which she later
amended to seek a divorce and other relief. Gerald abandoned the Michigan case. He came to
Nevada, and on November 5, 1958 obtained a Nevada default decree. That decree did not
provide for alimony. On February 16, 1960 the Michigan court awarded Grace a divorce,
alimony and $5,000 in lieu of dower. Grace learned that Gerald was in Arizona. She sued him
there for the accrued amount due under the Michigan judgment.
under the Michigan judgment. Gerald appeared in the case and was represented by counsel
throughout. The Arizona court found that, as of December 8, 1960 Gerald owed Grace $7,500
under the Michigan judgment and, on December 30, 1960 entered its own judgment for that
amount. Gerald did not appeal. The present action was commenced by Grace on March 16,
1962. She seeks to recover the amount due upon the Arizona judgment with interest.
It was the trial court's view (and the position of the respondent here) that Colby v. Colby,
78 Nev. 150, 369 P.2d 1019, controls this case. It reasoned that the later Michigan divorce
impliedly invalidated the earlier Nevada default decree; and that the Arizona judgment for
money, being based on the Michigan decree, did the same. Therefore, to give full faith and
credit to the Arizona judgment is to invalidate our own decree, which we need not do under
Colby.
[Headnotes 1, 2]
It seems to us that the Colby doctrine does not touch this case. Here we simply have a suit
upon a foreign judgment for money. Upon the record presented it was impermissible for
Nevada to look behind the Arizona judgment. Gerald did not challenge the jurisdiction of the
Arizona court to render the money judgment, nor did he suggest that it had been procured by
fraud, or that it had been satisfied in whole or in part. It is patently a final judgment for full
faith and credit purposes. Biel v. Godwin, 69 Nev. 189, 245 P.2d 997; Kernan v. Kernan, 78
Nev. 93, 369 P.2d 451; Fauntleroy v. Lum, 210 U.S. 230.
1
Colby may not be read to
authorize a Nevada court to look behind a foreign money judgment and examine the cause of
action upon which it was based.
____________________

1
Gerald contended that he did not receive actual notice of the Arizona judgment, and therefore was not
accorded procedural due process, citing Griffin v. Griffin, 327 U.S. 220. He misreads Griffin. There it was held
that a judgment entered without actual notice to a party or his appearance therein, and without any form of
service of papers calculated to give him notice of the proceedings, violates procedural due process and is not
entitled to full faith and credit when sued upon in another jurisdiction. Here Gerald had notice of the Arizona
proceedings and appeared therein through counsel. There is no question of procedural due process involved.
[Headnote 3]
Indeed, even if we were to assume that a Nevada court could do so, the result of this case
would not be different. A valid ex parte divorce entered at the domicil of only one party to the
marriage does not automatically end the wife's right to support. Here the ex parte Nevada
decree was silent on the question of alimony. It did not purport to adjudicate the absent wife's
right to alimony. Armstrong v. Armstrong, 350 U.S. 568; Annot., 100 L.Ed. 716. The
Michigan judgment in the instant case is a support judgment. It does not purport to set aside
the earlier Nevada default decree obtained by the husband. The validity of the Nevada divorce
was never an issue in the Michigan case. It is clear on this record that the Nevada decree is
conclusive as to status, and the Michigan judgment conclusive as to support for the wife.
Colby has nothing whatever to do with the divisible divorce doctrine.
The theory of divisible divorce adopted in Estin v. Estin, 334 U.S. 541, has been extended
to embrace the case before us. In Estin the court held that an ex parte Nevada divorce
procured by the husband did not terminate the wife's prior adjudicated right to separate
maintenance. We followed the Estin doctrine in deciding Summers v. Summers, 69 Nev. 83,
241 P.2d 1097. Subsequently, in Vanderbilt v. Vanderbilt, 354 U.S. 416, the United States
Supreme Court held that it is immaterial whether the wife's right to support is reduced to
judgment before the husband's ex parte divorce or afterwards (as in the Vanderbilt case). In
either instance the wife was not subject to the in personam jurisdiction of the divorce court,
and that court did not have power to extinguish her support rights. Accordingly, if Michigan
follows the rule that a wife may obtain support or alimony after the entry of an ex parte
foreign divorce, Nevada must honor the Michigan view. Cf. Summers v. Summers, supra.
Michigan does follow that rule. Malcolm v. Malcolm, 345 Mich. 720, 76 N.W.2d 831.
Consequently, had Grace brought suit in Nevada (rather than in Arizonaassuming the
ability to acquire personal jurisdiction over Gerald) for accrued support under the Michigan
judgment, Nevada would have been compelled to accord full faith and credit to the
Michigan judgment.
Michigan judgment, Nevada would have been compelled to accord full faith and credit to the
Michigan judgment. Malcolm v. Malcolm, supra; Vanderbilt v. Vanderbilt, supra; Summers
v. Summers, supra. It is, therefore, plain that there is no basis upon which Gerald may now
ignore his adjudicated support obligation to Grace.
2

For the reasons expressed we reverse the judgment entered below and remand the case
with direction to enter judgment for Grace W. Farnham against Gerald M. Farnham for the
sum of $7,550 with interest thereon at 7% per annum from December 30, 1960 until paid.
In this case Gerald filed a cross-appeal from the opinion of the district court. That court's
opinion is not appealable. An appeal may be taken from final judgments and specified orders;
not from opinions. Though Gerald's notice of cross-appeal also purports to appeal from the
judgment, it is ineffective because he won the case below and is not an aggrieved party
entitled to appeal. NRCP 72(a). His cross-appeal is dismissed.
____________________

2
The husband (respondent) relies heavily upon Perry v. Perry, 51 Wash.2d 358, 318 P.2d 968. In our view,
the Perry case ignored the Estin doctrine. Perry has been severely criticized. See: 10 Stanford L.Rev. 758; 33
N.Y.U.L.Rev. 746; 33 Wash.L.Rev. 151. We flatly reject its reasoning in so far as it relates to the divisible
divorce doctrine.
____________
80 Nev. 184, 184 (1964) Mau v. Woodburn
CHUCK MAU, Appellant, v. WOODBURN, FORMAN, WEDGE,
BLAKEY, FOLSOM AND HUG, a Partnership, Respondent.
No. 4688
April 6, 1964 390 P.2d 721
Probate proceeding respecting apportionment of attorney fees. The lower court entered an
order apportioning award, and one of the attorneys appealed. The Supreme Court, McNamee,
J., held that the court was empowered under statute to apportion the reasonable
attorneys' fee awarded as between the two attorneys employed by executors, and
evidence supported the apportionment of four-fifths of fee to one and one-fifth of fee to
the other.
Court, McNamee, J., held that the court was empowered under statute to apportion the
reasonable attorneys' fee awarded as between the two attorneys employed by executors, and
evidence supported the apportionment of four-fifths of fee to one and one-fifth of fee to the
other.
Affirmed.
Jones, Wiener & Jones, of Las Vegas, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Respondent.
1. Executors and Administrators.
Where two attorneys, as directed by will, had been employed by executors of estate, court was
empowered, under statute, to apportion between the two the reasonable attorney fees allowed. NRS
150.060.
2. Executors and Administrators.
Evidence supported probate court's apportionment of four-fifths of the reasonable attorneys' fee allowed
in probate of estate to one of the two attorneys employed by executors and one-fifth of the fee to the other
attorney. NRS 150.060.
OPINION
The last will and testament of Marion B. Hicks, together with a codicil thereto, were
admitted to probate in the lower court. Lillian Hicks and First National Bank were appointed
executors thereof. The said codicil directed decedent's executors to employ William K.
Woodburn, of Reno, Nevada, and Chuck Mau, of Honolulu, Hawaii, as their attorneys in the
probate proceedings. The petition for probate and all papers thereafter filed on behalf of the
executors named Chuck Mau and the respondent
1
as attorneys for Lillian Hicks and First
National Bank.
The order admitting the will and codicil to probate and for letters testamentary was signed
and filed September 28, 1961. On December 14, 1962 the respondent and appellant
petitioned the lower court for an allowance of attorney fees on account, and the
petitioners alleged therein that they had not been able to agree between themselves as to
the division of fees.
____________________

1
Woodburn, Forman, Wedge, Blakey, Folsom and Hug will be referred to herein as one person.
and appellant petitioned the lower court for an allowance of attorney fees on account, and the
petitioners alleged therein that they had not been able to agree between themselves as to the
division of fees. The prayer of the petition also asked that of the fees allowed the court
determine the amount thereof due the appellant and the amount due the respondent.
After a hearing on the petition for allowance of attorney fees the lower court approved an
allowance of attorney fees on account and concluded that four-fifths thereof was a reasonable
fee to be allowed respondent and one-fifth thereof was a reasonable fee to be allowed
appellant. Judgment was entered accordingly and appeal is from the judgment.
It is appellant's contention that inasmuch as there was no agreement between the appellant
and respondent with respect to a division of the fees, the fees should be shared equally
between appellant on the one hand and respondent on the other. On the other hand,
respondent contends that the lower court was empowered to divide the fees allowed in such
proportions as it deemed proper.
The respondent consists of attorneys all of whom are admitted to practice in the State of
Nevada. On the other hand, appellant is not a member of the Nevada State Bar, but is a
member of the Bar of the State of Hawaii.
After the employment of appellant and respondent, respondent immediately commenced
negotiations with Bonanza Motel, Inc., the owner of the Thunderbird Hotel, in Las Vegas, for
the sale of the estate's stock in Bonanza Hotel, Inc. Finally, in October of 1962, a sale of the
stock was consummated for $2,520,000. It appears from the record that Mau's services to the
estate were minor and perhaps detrimental to the estate, because in the sale transaction he
took a position antagonistic to the interests of the widow, who is the chief beneficiary of the
estate. According to the testimony of an expert, R. O. Kwapil, Vice-President and Trust
Officer of said First National Bank, an allocation [to Mau] in the neighborhood of five
percent would be generous.
Respondent maintains that NRS 150.060 empowers the court to apportion attorney fees
among lawyers undertaking in concert to represent executors. This statute in part provides as
follows:
1. All attorneys for estates or executors or administrators appointed in the proceedings
shall be attorneys of record with like powers and responsibilities as attorneys in other actions
and proceedings, and shall be entitled to receive a reasonable compensation, to be paid out of
the estate they respectively represent, for services rendered, to be allowed by the court.
2. Any attorney who has rendered services to an executor or administrator at any time
after the issuance of letters testamentary or letters of administration, and upon such notice to
the executor or administrator and to the persons interested in the estate as the court or a judge
thereof shall require, may apply to the court for an allowance upon his fees. On the hearing,
the court shall make an order requiring the executor or administrator to pay such attorney out
of the estate such compensation, on account of the services rendered up to that time, as the
court shall deem proper, and such payment shall be made forthwith.
According to respondent, under this statute attorneys are entitled to a reasonable
compensation only for services rendered. Section 2 of said statute provides that any attorney
who has rendered services to an executor may apply to the court for an allowance upon his
fees. Both Mau and Woodburn did just this in their petition below.
It is not questioned that the total amount allowed was a reasonable amount to allow as
attorney fees on account. Appellant contends that in the absence of an express agreement to
the contrary, equal division of the profits is implied without regard to any inequality of
services rendered. Such is the rule with respect to joint adventures. Botsford v. Van Riper, 33
Nev. 156, 110 P. 705.
We have concluded that the cases involving joint adventures are not applicable to the
present situation. With few exceptions they do not concern attorneys in probate proceedings
and the joint-adventure rule has been applied most frequently in contingent fee situations
where compensation is not related to services actually performed. Annot., 73 A.L.R.2d
991.
been applied most frequently in contingent fee situations where compensation is not related to
services actually performed. Annot., 73 A.L.R.2d 991. Furthermore, in such cases there was
no governing statute such as NRS 150.060.
[Headnote 1]
NRS 150.060 expressly states that the compensation to be allowed by the court is for
services rendered. Under this statute only the court can determine the amount of
compensation, to be allowed. Any agreement between an executor and his attorney with
regard to the attorney's compensation can be disregarded by the court. The amount of attorney
fees is left solely to the discretion of the court, and we believe that this statute likewise gives
the court power to apportion the compensation it allows between co-counsel on the basis of
services rendered. In re Felton's Estate, 199 Misc. 507, 99 N.Y.S.2d 351; In re Morgan's
Estate, 94 Cal.App. 617, 271 P. 762; cf. Hope v. Jones, 24 Cal. 89; see 21 Cal.Jur.2d 378; 2
Bancroft's Probate Practice 444 (2d ed. 1950).
Section 38.20 of Cal.Est.Admin. (Cont.Ed.Bar) provides:
Even though two or more representatives or attorneys have acted either concurrently or
successively during the period of administration, only one representative's and one attorney's
statutory fee can be allowed. Prob. C. 901, 910; Estate of Morgan (1928) 94 C.A. 617, 271
P. 762. It must be apportioned on the basis of the services actually performed.
Concurrent or successive representatives or attorneys may agree between themselves
upon apportionment of the fee but the court should approve the agreement. If the court does
not believe the agreement compensates the parties equitably for their relative services, or
disapproves for some other reason, the court's apportionment will prevail over the agreement.
The court's apportionment will not be disturbed on appeal in the absence of a showing of
abuse of discretion. Estate of Gonzales (1949) 93 C.A.2d 440, 209 P.2d 21.
If the court does not make an apportionment of fees, the matter is left open for future
consideration. The parties may apply for a supplemental order apportioning their
commissions and fees.
Where joint attorneys representing one executor cannot agree on apportionment of the fee
between themselves, and do not request the court to apportion it, they are entitled to share it
equally. Ford v. Freeman (1919) 40 C.A. 221, 180 P. 545.
Our construction of NRS 150.060 is in accord with sound public policy. Cf. McFarland v.
George, 316 S.W.2d 662 (Mo.App. 1958); Orenstein v. Albert, 39 Misc.2d 1093, 242
N.Y.S.2d 505.
[Headnote 2]
The lower court had the power under NRS 150.060 to apportion the attorney fees allowed
between the respondent and appellant. The evidence supports the apportionment as made by
the lower court.
Affirmed.
____________
80 Nev. 189, 189 (1964) Bromberg v. Finnell
LEO EDWIN BROMBERG, Appellant, v. LEONE C.
FINNELL, Respondent.
No. 4685
April 7, 1964 391 P.2d 31
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Action by optionee for breach of agreement whereunder optionee might buy stock. The
trial court rendered a judgment, from which optionee appealed. The Supreme Court, Badt, C.
J., held that trial court order determining that stock had no real value on stated day and
releasing sureties on optionor's supersedeas bond were erroneous where, on previous appeal,
Supreme Court had determined that optionor had breached agreement and had remanded for
determination of market value, no new trial having been granted or sought.
and had remanded for determination of market value, no new trial having been granted or
sought.
Reversed and remanded with directions for a limited new trial.
[Rehearing denied May 14, 1964]
John S. Belford and Stanley H. Brown, of Reno, for Appellant.
Guild, Busey & Guild and Howard L. Cunningham, of Reno, for Respondent.
1. Discovery.
Unanswered request for admission that stocks, which were subject of option, had certain market value on
stated day was insufficient to establish market value where, since request for admission did not designate
any period or time within which admissions must be made, time for answer had not expired at time of
opinion, decision, and judgment. NRCP 36(a).
Trial court orders determining that stock, which was subject of option, had no real value on stated day
and releasing sureties on optionor's supersedeas bond were erroneous where, on previous appeal, Supreme
Court had determined that optionor had breached agreement and had remanded for determination of market
value, no new trial having been granted or sought. NRCP 59(a).
Action for optionor's breach of stock option agreement would be again remanded for new trial, limited to
question of market value on certain date as shown by sales on stock exchange, where, after previous
remand for determination of market value, trial court determined intrinsic value and no evidence of market
value was in record.
OPINION
For a full discussion of the facts of this case, see our opinion in Finnell v. Bromberg, 79
Nev. 211, 381 P.2d 221. In the former case we considered an appeal from the trial court's
judgment awarding damages to Bromberg for Mrs. Finnell's breach of her option contract for
the sale to Bromberg of corporate stock at the price of 60 cents a share.
of 60 cents a share. The issues raised by Finnell in that appeal were (1) that Bromberg had not
legally exercised his option; (2) that his requirement that the stock-certificates be deposited in
the bank (where the money was ready for payment) was an oral modification of the option,
and that as the acceptance of the option was required to be in writing, so was any
modification; (3) that no proper tender had been made by Bromberg; (4) that Finnell had not
repudiated the option; (5) that as some of the testimony was in conflict, and as the case had
been tried before Judge A. J. Maestretti, who died before deciding it, and was thereafter, by
stipulation, submitted to Judge John W. Barrett upon the testimony taken before Judge
Maestretti, our rule against disturbing a finding made upon conflicting evidence, where there
was substantial evidence to support it, should not apply, but that we might ignore such
finding and substitute our own; (6) that Bromberg's testimony was incredible; and (7) that the
finding of damage in the sum of $99,484.93, plus interest, was not supported by the evidence.
We rejected the first six of these seven contentions. Bromberg attempted to support the
judgment as against the seventh contention on the ground that the record showed a market
value of at least $2.00 per share from May 20 through May 25, 1959, and that as he had
accepted the option on May 20, it was presumably the thought of the trial court that five days
constituted a reasonable time for delivery of the stock, so that May 25 was the date on which
the breach had occurred. We held that the judgment for the amount of damage could not be
supported on this theory, and that the only real basis for fixing the damages would be the
value of the stock on June 2, 1959, the date when Finnell repudiated her contract. No market
value as of this date appeared in the record.
We concluded our opinion with these words: We consider that the judgment must be
affirmed in all respects, except the fixing of the amount of damage and that the case must be
remanded for a limited new trial on this issue. It is so ordered. It should be noted that
throughout the opinion we were considering only the market value of the stock, though in
one or two instances we referred to this by using the short term, value.
that throughout the opinion we were considering only the market value of the stock, though in
one or two instances we referred to this by using the short term, value.
When considering the case on the mandate of our remand the learned district judge took
into consideration three motions that had been submitted to him, namely, Finnell's Motion to
extend time for discovery procedure, Bromberg's Motion to take Turnbull's deposition in
Reno rather than Los Angeles, and Finnell's Motion to release and exonerate the bondsmen
on the Supersedeas Bond [filed to stay execution of the judgment]. To this end he filed an
18-page opinion and order, in the beginning of which he recited: Judge Barrett, the Supreme
Court, Counsel for Plaintiff and Counsel for Defendant, all throughout the former
proceedings concurred that the measure of damages in a case of this kind is the difference
between the option contract price and the market value on the day of the exercise of the
option.
1
The learned trial judge then proceeded: The question which concerns this Court is
whether at this point it must accept, the open market value (without question) of this stock as
the basis for determining amount of damages as of June 2, 1959, or whether it can go behind
the market activity and ascertain its true actual value on the basis of statements contained in
Busey's affidavit * * *.
If this Court MUST accept the bare face market value (without question) as it appeared
on some Board somewhere in California
2
on June 2, 1959, it may as well accept [counsel's]
Request for Admissions * * * wherein it appears that on June 2, 1959, five separate sales
totaling in all 900 shares (out of a possible 600,000 plus outstanding shares) * * * was
recorded that day, 700 shares selling at $1.70 per share, 100 shares at $1.75 per share and 100
shares at $1.65 per share * * *. At any rate for purposes of this opinion the court will assume
that the Requests will be admitted as submitted.3
____________________

1
As noted above, this is not accurate as reciting this court's view. The date of the repudiation of the option
rather than the date of the exercise of the option was the proper date.

2
The trading was on the Pacific Coast Stock Exchange.
assume that the Requests will be admitted as submitted.
3

If, as stated, the Requests are admitted and are accepted at face value, then all that remains for
this Court is to enter judgment for Plaintiff at $1.70 per share and no further proceedings need
be had.
The query now, is whether this Court should go behind the market value in view of the
position urged in Busey's Affidavit which was not presented to the Trial Court or Supreme
Court when taken in conjunction with the law cited by both counsel in their respective briefs
* * *.
The trial judge then concluded that it had the authority to inquire into the corporate affairs
and stock market activity for the purpose of ascertaining true stock value. To this end the
entire file was reviewed by this Court, in the light of the position now urged, and which as
stated, was not directly presented to the trial judge nor Supreme Court, and therefore, this
Court assumes not considered by them.
The trial judge then devoted some ten pages to a review of the testimony as given in Mr.
Busey's affidavit and other evidence. Toward the end of his opinion the trial judge states:
Learned and highly respected and capable counsel for the defendant must accept the
responsibility for not having presented the position on damages now stressed to Judge Barrett
or the Supreme Court. This Court is satisfied that neither Judge Barrett nor the Supreme
Court viewed the evidence on damages in the light that it was viewed by this Court simply
because it was not presented to them. The Court understands that all efforts of both counsel
(in briefs and argument to the trial and the Supreme Court) was primarily concentrated and
directed to the exercise of the option question and that actually the measure of damages was
conceded by both counsel and the Courts to be market value without any question.
The learned trial judge then concludes that [p]redicated upon the foregoing, he is
prepared to grant, should it be made, by Finnell, a motion for summary judgment on the
limited issue of damages, that the stock involved was basically worthless or worth not
more than 60 cents per share, and that Finnell should return the $5,000 deposit made by
Bromberg, or in the alternative, that Finnell be given the opportunity, if she wants it, to
develop her present theory to the fullest extent, to engage in whatever discovery is
necessary, reasonable and proper in the premises, and denies Bromberg's motion to take
Turnbull's deposition in Reno, and orders it taken in California.
____________________

3
See our comment on this point in the third from the last paragraph of this opinion.
judgment on the limited issue of damages, that the stock involved was basically worthless or
worth not more than 60 cents per share, and that Finnell should return the $5,000 deposit
made by Bromberg, or in the alternative, that Finnell be given the opportunity, if she wants it,
to develop her present theory to the fullest extent, to engage in whatever discovery is
necessary, reasonable and proper in the premises, and denies Bromberg's motion to take
Turnbull's deposition in Reno, and orders it taken in California.
In the final three lines of the opinion is found the order from which this appeal is
takenthat Defendant's Motion to Release and Exonerate the Bondsmen on the Supersedeas
Bond filed herein on October 11, 1962, be, and the same is hereby granted.
Despite the limitation of the appeal to this single order, the record presents to us an entire
package of orders that we cannot ignore. The lower court frankly recognized that the matters
and issues considered by it had never been presented at the original trial or the appeal from
the judgment resulting from that trial. No new trial had been granted or sought on the ground
of newly discovered evidence which Finnell could not with reasonable diligence have
discovered and produced at the trial. NRCP 59(a). The court below also frankly admitted that
this court's mandate on remand limited the lower court's new trial to the issue of the market
value of the stock on June 2, 1959. The trial court accepted (under the unanswered request for
admissions) the fact that the market value of such stock as shown by sales on the Pacific
Coast Stock Exchange on June 2, 1959, was $1.70 a share. Yet, apparently in a conscientious
desire to render a just judgment, it rejected our mandate limiting its power and, without
authority so to do, entered into a new trial of various aspects of the case, besides new and
additional issues. The same order, in the same package, exonerated the bondsmen on the
supersedeas staying execution of the first judgment. It is not reasonably possible to separate
the order releasing the sureties on the supersedeas bond from the package of orders contained
in the trial court's opinion and decision and the judgment that followed it.
contained in the trial court's opinion and decision and the judgment that followed it.
[Headnote 1]
As noted supra, the trial court was willing to assume, from Finnell's failure to answer the
request for admissions, that the request was admitted and that this placed the market value of
the stock on June 2, 1959, at $1.70 a share. However, the record shows that at the time of the
trial court's opinion, decision, and judgment the time within which Finnell might answer the
request for admissions had not expired.
4
We are unable to assume, as did the district judge,
that the market value of the stock on June 2, 1959, was $1.70 per share. This proof is still not
in the record, just as it was absent from the record filed in Finnell v. Bromberg, supra. See
NRCP 36(a).
It should be a simple matter to ascertain whether the stock of Barnhart-Morrow
Consolidated was quoted on the Pacific Coast Stock Exchange on June 2, 1959, and what
sales, if any, and at what price, were made on such exchange on said date.
[Headnotes 2, 3]
All orders of the court below contained in the opinion and decision dated August 9, 1963,
and the minute orders entered thereon on the same date are hereby reversed, the sureties on
the supersedeas bond remaining answerable thereon (Franklinville Realty Co. v. Arnold
Construction Co. (CCA 5th Cir. 1943), 132 F.2d 828; Rector v. Massachusetts Bonding &
Ins. Co. (CA DC 1951), 89 U.S.App.D.C. 83, 191 F.2d 329; 7 Moore, Federal Practice 3180
et seq. (2d Ed.), and the case is again remanded for a new trial, limited to the question of
determining the market value of said stock on June 2, 1959, as shown by the sales of
Barnhart-Morrow Consolidated on the Pacific Coast Stock Exchange.
____________________

4
The request for admissions did not designate any period or time within which admissions were required to
be made. The language of the rule is: Each of the matters of which an admission is requested shall be deemed
admitted unless, within a period designated in the request * * * the party to whom the request is directed serves
upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an
admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters
or (2) written objections * * *. (Emphasis supplied.)
determining the market value of said stock on June 2, 1959, as shown by the sales of
Barnhart-Morrow Consolidated on the Pacific Coast Stock Exchange. Appellant will be
allowed his costs in this court.
____________
80 Nev. 196, 196 (1964) Pioneer Title Insurance v. Ina Corp.
PIONEER TITLE INSURANCE COMPANY OF NEVADA, a Nevada Corporation,
Appellant, v. INA CORPORATION, a California Corporation, Respondent.
No. 4689
April 8, 1964 391 P.2d 28
Appeal from judgment of the Second Judicial District Court, Washoe County; Thomas O.
Craven, Judge.
Insured brought action against title insurance company on policy of title insurance. The
trial court entered a judgment adverse to the company, and the company appealed. The
Supreme Court, Thompson, J., held that where insured and third party as co-vendors
contracted to sell their ranches for total price of $200,000, and thereafter it was discovered
that there was defect in title of insured to part of its ranch, and after good faith negotiation
with purchaser the price was reduced by $6,400, court was justified in holding that insured
could recover $6,400 from title insurance company under policy of title insurance insuring
against loss or damage, though qualified appraiser testified that value of part of ranch to
which title had failed was $1,500.
Affirmed.
Sidney W. Robinson, of Reno, for Appellant.
Bradley & Drendel, of Reno, for Respondent.
1. Insurance.
Where insured and third party as co-vendors contracted to sell their ranches for total price of $200,000,
and thereafter it was discovered that there was defect in title of insured to part of its ranch, and after
good faith negotiation with purchaser the price was reduced by $6,400, court was
justified in holding that insured could recover $6,400, from title insurance company
under policy of title insurance insuring against "loss or damage," though qualified
appraiser testified that value of part of ranch to which title had failed was $1,500.
of its ranch, and after good faith negotiation with purchaser the price was reduced by $6,400, court was
justified in holding that insured could recover $6,400, from title insurance company under policy of title
insurance insuring against loss or damage, though qualified appraiser testified that value of part of ranch
to which title had failed was $1,500.
2. Insurance.
Where insured and third party as co-vendors contracted to sell their ranches for total price of $200,000,
and thereafter it was discovered that there was defect in title of insured to part of its ranch, and after good
faith negotiation with purchaser the price was reduced by $6,400, title insurance company, which had
insured against loss or damage, could not claim benefit of alleged understanding between insured and
third party to share loss, and company could not satisfy its liability under policy by paying insured $3,200.
OPINION
This is a suit upon a policy of title insurance. The title insurance company (then Washoe
Title Insurance Company, now Pioneer Title Insurance Company, the defendant-appellant),
issued its policy in the amount of $25,000, certifying that on September 18, 1958, Ina
Corporation (the plaintiff-respondent) was the owner of certain land in Lyon County, Nevada
including the S1/2 of Sec. 13, T. 16 N., R. 23 E., MDB&M. In fact, title to the S1/2 of Sec.
13 was vested in the United States. The land covered by the policy embraced about 5,800.39
acres and was known as the Sario Ranch. The half section to which title failed comprised
about 320 acres, though it may have been a short half section. Ina learned of its lack of title
during the spring of 1962. Ina had joined with Dayton Land and Livestock Company to sell to
Charles Steen the Sario Ranch (which Ina owned) and the 300 acre Conklin Ranch (which
Dayton owned) for a total price of $200,000. The allocation of the purchase price between the
co-vendors is not disclosed by the record. In connection with the sale, another title insurance
company had been engaged to search title. The defect in Ina's title was discovered and Ina,
Dayton and Steen were notified.
By agreement between the sellers and the buyer the purchase price was reduced by $6,400
($20 an acre for 320 acres), and the sale completed.
Ina made demand upon the title company for $6,400. The company deemed that amount
greatly to exceed the value of the 320 acres in question. The parties could not resolve their
differences and this litigation ensued.
The insurance company admitted liability. The sole matter in dispute was the measure of
Ina's loss. During trial, Pioneer Title offered the expert opinion of a qualified appraiser that
the value of the parcel to which title had failed was $1,500. This was the only opinion
evidence of value submitted. Because of this Pioneer argued that Ina's loss could not exceed
$1,500. On the other hand, Ina contended that the policy insured against loss or damage,
and it was appropriate, therefore, to measure its loss by the $6,400 reduction of purchase
price in the Steen transaction.
1
The trial court agreed with Ina and entered judgment in its
favor for $6,400 plus costs. Pioneer Title appeals.
Pioneer presents two appellate contentions. First, it urges that where there is a complete
failure of title to a portion of the property insured, the policyholder's loss or damage is limited
to the value of the portion to which title failed, and may never exceed that amount. Second,
assuming it is wrong on the first contention, Pioneer argues that on the present record Ina may
not recover more than $3,200 (one-half of the $6,400 reduction of purchase price in the Steen
transaction) because, absent an allocation of the purchase price between co-vendors (Ina and
Dayton Land and Livestock), the law will presume that they are to share profits and losses
equally. We do not agree with either contention.
[Headnote 1]
The cases as to the measure, extent or amount of recovery on a policy of title insurance are
collected at 60 A.L.R.2d 972.
____________________

1
The policy provided, * * * does hereby insure the parties named as Insured in Schedule A * * * against loss
or damage not exceeding the amount stated in Schedule A which the insured shall sustain by reason of:
1. Title to the land described in Schedule A being vested, at the date hereof, otherwise than as herein
stated;* * *.
60 A.L.R.2d 972. An examination of them will disclose that seldom does the error consist of
a failure to discover an outstanding fee title to a part of the land insured vested in someone
other than the policyholder. Most of the cases involve a mistake in other respects and may,
therefore, involve somewhat different considerations in measuring the loss incurred. The case
most nearly on point with the instant matter is Montemarano v. Home Title Ins. Co., 258
N.Y. 478, 180 N.E. 241. There the plaintiff did not have title to a portion of land which she
had contracted to sell. The buyer rejected title. Later the title company was able to cure the
defect without cost to the plaintiff, and she was able to consummate a sale to someone other
than the first person with whom she had contracted to sell. It was the title company's position
that, as the defect was cured, the plaintiff was limited to nominal damages, i.e., the expenses
she had to pay her first purchaser, such as the cost of search, and broker's commissions. The
court (Crane, Cardozo, Pound, Lehman, Kellogg, O'Brien and Hubbs) after noting that the
policy provision insured against all loss or damage stated, The defect in the title to the
plaintiff's property, Parcel A, caused an actual loss to the plaintiff which consisted in the
difference between the price she contracted to sell it for and the price she received for it after
the defect was cured. Of course, in the instant case, the defect in Ina's title was not cured.
The title company attempted to procure title to the S1/2 of Sec. 13 from the United States, but
was unable to do so. Because of Ina's inability to deliver title to the S1/2 of Sec. 13 the
purchase price was reduced by $6,400. That a loss in that amount was incurred cannot be
denied. So far as the record shows, the reduction in price was negotiated in good faith. There
is no suggestion of fraud, coercion or collusion. It seems to us that the loss falls squarely
within the policy provision indemnifying Ina against loss or damage. In Montemarano v.
Home Title Ins. Co., supra, the plaintiff recovered her actual loss even though the title
company was able to cure the defect. A fortiori, where the title company's error could not
be corrected, as in this case, the plaintiff should be treated as well.2
where the title company's error could not be corrected, as in this case, the plaintiff should be
treated as well.
2

The insurance policy does not contain language limiting liability. To the contrary. It
insures Ina against loss or damage sustained by reason of title to the S1/2 of Sec. 13 being
vested otherwise than as herein stated. As applied to the present case, the language means
all loss incurred by Ina due to its inability to deliver title to the S1/2 of Sec. 13 in accordance
with its agreement to do so.
Though the contractual indemnity against loss or damage may, in some cases, exceed the
value of the property to which title has failed, the record in the case before us will support the
conclusion that the value of the S1/2 of Sec. 13 was $6,400 (rather than $1,500 as contended
by Pioneer Title). Surely the negotiated figure ($6,400) reached by a willing seller and a
willing buyer without fraud, duress, collusion, etc., is probative of value. The trial court was
not bound to prefer the opinion testimony of an appraiser. We are not aware of a rule of law
requiring the trier of the fact to give greater credence to opinion evidence of value than to a
negotiated figure of value reached as herein described. We hold that Pioneer Title's first
contention is without merit.
[Headnote 2]
The failure of the record to show an allocation between Ina and its co-vendor Dayton Land
and Livestock of the purchase price received from their sale to Steen supplies the premise for
the title company's second contention. It argues that, in such case, Ina and Dayton should be
treated as joint owners of the net sales price and that any deduction therefrom (in this case the
$6,400) must be presumed to have been shared equally. Therefore, it argues, the maximum
loss sustained by Ina could not, on the record presented, be greater than $3,200, viz.,
one-half of the $6,400 reduction.
____________________

2
The case most heavily relied upon by appellant is Demopoulos v. Title Ins. Co., 61 N.M. 254, 298 P.2d 938,
60 A.L.R.2d 969. It is not on point because it involved title insurance issued to a mortgagee rather than to an
owner of property. Different considerations are present in measuring the loss. See 60 A.L.R.2d at 976. The
extent to which the mortgagee's security has been impaired is the focal point.
equally. Therefore, it argues, the maximum loss sustained by Ina could not, on the record
presented, be greater than $3,200, viz., one-half of the $6,400 reduction. The argument is
clever, but not persuasive. Ina (not Dayton) had agreed to sell the S1/2 of Sec. 13 to Steen.
Ina alone had the insured title to that parcel. Dayton had no claim against the title company. It
was not the insured. Ina alone incurred the loss or damage indemnified against. The reduction
in price was attributable only to Ina's inability to deliver title to the S1/2 of Sec. 13. If there
was an understanding between Ina and Dayton to share the loss, the title company may not
claim the benefit thereof. Its liability was fixed by the policy of title insurance, and may not
be altered by an agreement, if one existed, to which it was not a party. The title company's
argument in this regard must fail.
Affirmed.
____________
80 Nev. 201, 201 (1964) Karlsen v. Jack
ODD KARLSEN, BALL SIGN CO., a Partnership Composed of LYLE V. BALL and
KENNETH L. DENNIS, and LYLE V. BALL and KENNETH L. DENNIS, Individually and
Doing Business as BALL SIGN CO., a Partnership, Appellants, v. INGEBORG JACK and
ELLIS JACK, Respondents.
No. 4690
April 15, 1964 391 P.2d 319
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Action for injuries sustained in automobile accident. The trial court entered a judgment for
the motorist and her husband and the defendant truck owners and driver appealed. The
Supreme Court, McNamee, J., held that whether negligent act of truck driver in parking truck
on freeway apron caused motorist, after she was forced to turn right because of conduct of
another driver, to swerve sharply to left to avoid hitting truck and whether act created a
foreseeable risk of danger and was a concurrent proximate cause of negligence were for
jury.
to turn right because of conduct of another driver, to swerve sharply to left to avoid hitting
truck and whether act created a foreseeable risk of danger and was a concurrent proximate
cause of negligence were for jury.
Affirmed.
Vargas, Dillon, Bartlett & Dixon, and Alex. A. Garroway, of Reno, for Appellants.
Eugene J. Wait, Jr., of Reno, for Respondents.
1. Automobiles.
Law of California pertaining to negligence and proximate cause was controlling in Nevada action for
damages resulting from California automobile accident.
2. Negligence.
Under California law, negligence and proximate cause are questions of fact for the jury.
3. Negligence.
Foreseeability does not mean foreseeability of actual consequences but merely means foreseeability in
terms of causation, and if conduct of person sought to be charged is a substantial factor bringing about
harm, fact that be neither foresaw nor should have foreseen extent or nature of harm, or manner in which it
occurred, does not prevent him from being liable.
4. Automobiles.
Whether negligent act of truck driver in parking truck on freeway apron caused motorist, after she was
forced to turn right because of conduct of another driver, to swerve sharply to left to avoid hitting truck and
whether that act created a foreseeable risk of danger and was a concurrent proximate cause of negligence
were for the jury. Cal. Vehicle Code 22520.
OPINION
Mrs. Jack, hereinafter called Jack, was driving her Renault automobile on the California
freeway near Truckee, California. As she approached a bridge the highway narrowed.
highway narrowed. Defendant Ball Sign Co.'s truck was parked on the right shoulder or apron
of the freeway just before the bridge. Two of the sign company's employees were engaged in
some painting on a nearby sign advertising a private enterprise, but at the time of the accident
they were standing beside the truck. There were two concrete west lanes of the freeway in
addition to the asphalt apron. The two left wheels of the parked truck were one foot from the
outer concrete lane. The highway curved to the left with a descending grade to where the
truck was parked. The lawful speed limit at that point was 65 miles per hour. Jack was
driving in the inner lane of the two westbound lanes. Eshelman
1
was driving in the outer
lane. As Eshelman approached the Ball Sign truck he cut from the outer lane into the inner
lane directly in front of Jack.
2
Although Jack has no recollection of any of the events
connected with the accident it appears that in attempting to avoid hitting Eshelman she cut to
the right. On seeing the Ball Sign truck she cut to the left, lost control of the Renault, it turned
over, and her injuries resulted. This is an action against the partners of Ball Sign Co., a
partnership, and against one of its said employees to recover damages for such injuries.
The jury awarded a verdict against appellants in the sum of $24,489.56 damages in favor
of Mrs. Jack and $2,000 damages to her husband for loss of consortium. Appeal is from the
judgment based thereon, and from the denial of appellants' motions for judgment
notwithstanding the verdict and for a new trial.
On this appeal we are not concerned with the negligence of Eshelman. The negligence of
Ball Sign Co. in parking the truck as it did is conceded.3 The only question involved is
whether such negligence was a proximate cause of Jack's injuries.
____________________

1
One of the defendants in the court below who is not a party to this appeal.

2
Eshelman testified that when he saw appellants' truck parked on the shoulder of the road and the two men
near the truck he veered to the left as a safety precaution.
parking the truck as it did is conceded.
3
The only question involved is whether such
negligence was a proximate cause of Jack's injuries.
It is appellants' contention that as a matter of law they could not be liable; that the parking
of the truck, whether a negligent act or not, could not have been a proximate cause of the
accident, because they could not anticipate the wrongful conduct of Eshelman in cutting over
his car in front of Jack without warning.
This contention must be rejected.
[Headnote 1]
The accident having occurred in California, the California law pertaining to negligence
and proximate cause is controlling. Campbell v. Baskin, 69 Nev. 108, 242 P.2d 290.
[Headnote 2]
The questions of negligence and proximate cause are questions of fact for the jury in
California. Parker v. City and County of San Francisco, 158 Cal.App.2d 597, 323 P.2d 108;
Gerberich v. Southern California Edison Co., 5 Cal.2d 46, 53 P.2d 948.
In Fennessey v. Pacific Gas & Electric Co., 20 Cal.2d 141, 124 P.2d 51, defendant's truck
was improperly parked between the curb and the safety zone for street cars. The co-defendant
drove his jitney bus around the truck to the left of the safety zone and struck decedent in the
pedestrian crosswalk. The court said: "The main contentions of the appellants are that the
evidence proves as a matter of law that at the time of the accident they were engaged in
'emergency' work within the meaning of a municipal ordinance, but that, assuming
negligence on their part, the evidence fails to show that such negligence was a proximate
cause of the accident.
____________________

3
Cal.Veh.Code 22520 provides:
No person shall stop, park, or leave standing any vehicle upon a freeway to which the owners of abutting
lands have no right or easement of access except:
(a) When necessary to avoid injury or damage to persons or property.
(b) When required by law or in obedience to a peace officer or official traffic control device.
(c) Any person actually engaged in maintenance or construction of freeway property or any employee of a
public agency actually engaged in the performance of official duties.
(d) Any vehicle which is so disabled that it is impossible to avoid temporarily stopping and any vehicle
which has been summoned to render assistance to a vehicle or person.
(e) In locations where stopping, standing or parking is specifically permitted. The appellants did not come
within any of the stated exceptions.
The main contentions of the appellants are that the evidence proves as a matter of law
that at the time of the accident they were engaged in emergency' work within the meaning of
a municipal ordinance, but that, assuming negligence on their part, the evidence fails to show
that such negligence was a proximate cause of the accident. In regard to the latter contention,
it is their theory that the act of the jitney bus driver broke the chain of causation between any
negligence in parking the truck and plaintiff's injuries.
* * * * *
Whether the parking of appellants' repair truck between the safety zone and the curb had
anything to do with the swerve or turn of the jitney bus on to the first or second street car
tracks, as the result of which the accident occurred, or whether the jitney driver could have
averted such accident, notwithstanding that he violated the ordinance prohibiting driving to
the left of a safety zone, were purely questions of fact to be determined by the jury. If the jury
believed the evidence in support of respondents' theory that the parking of appellant
company's car was a proximate cause of the accident, we are unable to interfere.
In Carroll v. Central Counties Gas Co., 74 Cal.App. 303, 240 P. 53, respondent contended
that, if it be conceded that it was guilty of negligence in the maintenance of its pipe line, such
negligence was not a proximate cause of the alleged injury, but that the act of the
automobilist who forced the car in which plaintiff was riding off the road was the proximate
cause of the injury. In rejecting this contention and ordering a reversal, the court held that
the defendant's negligence was continuous in its nature, existing up to the moment of the
injury, and whether such negligence was a proximate cause of the accident was a factual
question.
Upon a subsequent appeal (Carroll v. Central Counties Gas Co., 96 Cal.App. 161, 273 P.
875), the court said: Even if the negligent act is succeeded by a disconnected act of
negligence of another person, and which results in injury to a third person, if the original
negligence was such that, in the ordinary and natural course of events, the second negligent
act should have been anticipated as reasonably likely to happen, the proximate cause of
the injury may be laid in the first negligent act."
the second negligent act should have been anticipated as reasonably likely to happen, the
proximate cause of the injury may be laid in the first negligent act.
In this state negligence and proximate cause are factual matters whose determination is
essentially within the province of the jury. Novack v. Hoppin, 77 Nev. 33, 359 P.2d 390;
Mahan v. Hafen, 76 Nev. 220, 351 P.2d 617; Henry v. Baber, 75 Nev. 59, 334 P.2d 839.
[Headnote 3]
Proximate cause involves an element of foreseeability. Foreseeability does not mean
foreseeability of the actual consequences. It simply means foreseeability in the terms of
causation. If the conduct of the person sought to be charged is a substantial factor in bringing
about the harm, the fact that he neither foresaw nor should have foreseen the extent or nature
of the harm, or the manner in which it occurred, does not prevent him from being held
liable. Parker v. City and County of San Francisco, supra.
[Headnote 4]
There was substantial evidence to permit the jury to find that the negligent act of
appellants in parking the truck on the shoulder of the highway under the conditions which
there existed, and which conditions the jury was permitted to view, caused the respondent,
after being forced to the right by Eshelman's conduct, to swerve sharply to the left in order to
avoid hitting appellants' truck and thereupon to lose control of her automobile; that
appellants' act created a foreseeable risk of danger and was a concurrent proximate cause of
the accident.
The judgment and orders appealed from are affirmed.
____________
80 Nev. 207, 207 (1964) Transcontinental Oil Co. v. Free
TRANSCONTINENTAL OIL CO., INC. OF NEVADA, Now Known as
TRANSCONTINENTAL POWER COMPANY, GEORGE DITSON JONES,
GEORGE H. HOWELL, JR., WINONA L. JACKSON, OWEN E. JACKSON AND
SALTON SEA POWER COMPANY, a Nevada Corporation, Appellants, v.
WILLIAM FREE and WESTERN GEOTHERMAL, INC., Respondents.
No. 4716
April 15, 1964 391 P.2d 317
Appeal from the Second Judicial District Court, Washoe County; John F. Sexton, Judge.
Suit for injunction, and appointment of a receiver of a corporation. From an order of the
lower court, the defendants appealed. The Supreme Court, Thompson, J., held, inter alia, that
where court had dismissed complaint, with leave to amend, because of failure to allege that
plaintiff owned certain percentage of stock of defendant corporation, court had jurisdiction to
order a date for hearing of application for receiver before amendment had been made and to
enter an order appointing temporary receiver after complaint was amended.
Affirmed.
Gregory & Gregory, of Las Vegas, for Appellants.
Vargas, Dillon, Bartlett & Dixon, and Robert W. Marshall, of Reno, for Respondent
Western Geothermal, Inc.
Bible, McDonald & Carano, of Reno, for Respondent William Free.
1. Corporations.
Where court had dismissed complaint, with leave to amend, because of failure to allege that plaintiff
owned certain percentage of stock of defendant corporation, court had jurisdiction to order a date for
hearing of application for receiver before amendment had been made and to enter an order appointing
temporary receiver after complaint was amended. NRS 78.630, 78.650.
2. Receivers.
Where petition for appointment of temporary receiver was filed on October 8, 1963, and notice given that
hearing would be held on October 17, 1963, and hearing did not occur at that time because other motions
had been filed by then and October 21 and 22 court disposed of other motions and designated October 25
as time of hearing the application, the statute contemplating five days' notice of application for temporary
receiver was complied with. NRS 78.650, subd. 3.
3. Corporations.
A stockholder who alleged four of 10 circumstances listed in statute, any one of which will authorize
appointment of temporary receiver upon application by holder of 10% of outstanding stock, made a proper
showing to justify appointment of receiver. NRS 78.650. subd. 1.
The Supreme Court would not comment upon matters dealing with interlocutory orders that were not
appealable. NRCP 72.
OPINION
The main question presented on this appeal is whether the district court had jurisdiction to
enter an order setting the time for hearing a petition for the appointment of a temporary
receiver, when it had dismissed the plaintiffs' complaint with leave to amend and the
amendment had not yet been made. The question arose out of the following circumstances.
Free (plaintiff), as a stockholder in Transcontinental Oil Co., Inc. (defendant), brought suit
in which he requested, among other things, the issuance of an injunction and the appointment
of a receiver. His complaint was defective. It failed to allege that he owned 10% of the
outstanding stock of Transcontinental, as required by NRS 78.630 and NRS 78.650 (though it
did state his ownership of 500,000 shares of the defendants' capital stock). After answering,
Transcontinental, by motion, challenged the legal sufficiency of the complaint. The court
dismissed the complaint, with leave to amend, and on the same day ordered that the
application for the appointment of a temporary receiver be heard three days later. A hearing
on the application for a temporary receiver was held at the appointed time, and an order
made granting the request.
receiver was held at the appointed time, and an order made granting the request.
Transcontinental appeals from the order appointing a temporary receiver. NRCP 72(b)(2).
[Headnote 1]
Under such circumstances Transcontinental contends that the district court lacked
jurisdiction to specify a time for the hearing of Free's request for the appointment of a
receiver. The complaint had been dismissed because of the failure to allege a fact requisite to
the court's jurisdiction. The fatal defect had not been cured by amendment when the court
made the order setting a hearing date, (though the complaint was amended before the hearing
was had). Therefore, Transcontinental insists that the order designating the hearing date was
void and made without jurisdiction, with the consequence that the hearing itself and the order
appointing a temporary receiver were similarly infected. We reject this contention. Case
authority is contra. In Interstate Refineries v. Barry, 8 Cir., 7 F.2d 548, the same contention
was made. There the complaint was deficient because it did not show on its face that the suit
was between citizens of different states, a jurisdictional requirement. The reviewing court was
presented with the argument that the federal district court lacked power to issue an injunction
or appoint a receiver before the complaint was amended to show jurisdiction. The court was
not persuaded. It stated, Amendments to pleadings properly allowed by the court, which
present no new cause of action and no controlling fact which did not exist when the pleading
was filed, relate back to and take effect at the time of its filing. The bill in this case stands as
though the original bill read as does the amended bill, and the court had plenary jurisdiction
of the case and of the parties to the amended bill from the time of the commencement of
suit. See also Baldwin v. Pickens, D.C., 208 F.Supp. 889, where it was held, Where,
factually, jurisdiction exists at the time the complaint is filed, the fact alone that jurisdiction
was not properly pleaded will not deprive the court of jurisdiction as of the time suit was
filed, if such defect be later remedied by amendment."
later remedied by amendment. We hold that the district court had jurisdiction to order a date
for the hearing of the plaintiffs' application for a receiver, to hear that application, and to enter
an order appointing a temporary receiver.
[Headnote 2]
NRS 78.650(3) contemplates 5 days' notice when application for a temporary receiver is
presented.
1
Transcontinental contends that the statutory notice requirement was not met in
this case because the hearing of Free's request for the appointment of a receiver occurred on
October 25, 1963 pursuant to a court order entered three days earlier. Of course it is true that
on October 22, 1963 the court ordered the hearing to be held on October 25, 1963. If this was
all that had happened, perhaps Transcontinental's argument would have significance.
However, the record shows that the petition for the appointment of a temporary receiver was
originally filed on October 8, 1963, and notice given that a hearing thereon would be held on
October 17, 1963. The hearing did not occur at that time because other motions had been
filed by then, and the court preferred to hear them all at the same time if it could conveniently
do so. On October 21 and 22 the court disposed of such other motions and also designated
October 25 as the time for hearing the application for a receiver. It is plain that the statute was
complied with. Transcontinental had adequate notice.
[Headnote 3]
Finally, Transcontinental insists that Free did not make a proper showing to justify the
appointment of a receiver and that the district court abused its discretion in granting his
request. This argument is not entitled to credit. NRS 78.650 (1) lists 10 circumstances, any
one of which will authorize the appointment of a temporary receiver upon application by a
holder of 10% of the outstanding stock.
____________________

1
NRS 78.650(3) states, In any such application for a receivership, it shall be sufficient for a temporary
appointment if notice of the same be given to the corporation alone, by process as in the case of an application
for a temporary restraining order or injunction, and the hearing thereon may be had after 5 days' notice unless the
court shall direct a longer or different notice and different parties.
which will authorize the appointment of a temporary receiver upon application by a holder of
10% of the outstanding stock. For the purposes of this opinion it is sufficient to note that Free
alleges four of them in his amended verified complaint. The affidavit of Kenneth F. Dillon
alleges one of them, viz., danger to the public. Clearly, the showing was sufficient.
Underwriters, Inc. v. District Court, 61 Nev. 42, 113 P.2d 616, 115 P.2d 932.
[Headnote 4]
We are also asked to comment upon other matters. We refuse to do so, for they deal with
certain interlocutory orders that are not appealable under NRCP 72.
Affirmed.
____________
80 Nev. 211, 211 (1964) Meagher v. Garvin
ROBERT JOHN MEAGHER and LEMBKE CONSTRUCTION CO. OF NEVADA, INC.,
Appellants, v. DESMOND NORWOOD GARVIN and OPAL FAY GARVIN,
Husband and Wife, Respondents.
No. 4694
April 21, 1964 391 P.2d 507
Appeal from judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Personal injury suit by husband and wife. The trial court gave judgment for the plaintiffs,
and the defendants appealed. The Supreme Court, Thompson, J., held that the sudden peril
doctrine was not applicable and that the driver of defendants' truck which collided with
plaintiffs' automobile failed to exercise due care, that employee was employer's agent for the
purpose of making the particular trip, that employer was liable for negligence of unauthorized
driver where employee, without employer's consent, let unauthorized person drive employer's
automobile in furtherance of employer's purpose and employee was present, that the damages
were not excessive, but that the award to wife for hospital and medical expenses and
other care should have been awarded to husband.
not excessive, but that the award to wife for hospital and medical expenses and other care
should have been awarded to husband.
Vargas, Dillon, Bartlett & Dixon and Alex. A. Garroway, of Reno, for Appellants.
Robert L. Gifford; Tad Porter; William R. Devlin, of Las Vegas, for Respondents.
1. Automobiles.
Sudden peril doctrine was inapplicable and there was a failure to exercise due care on part of driver of
defendants' southbound truck colliding with plaintiffs north-bound automobile, where directional signal of
vehicle preceding plaintiffs' automobile had been blinking for a quarter of a mile before reaching
intersection, and driver of truck did not reduce her speed and could not control truck when vehicle made
left turn in front of truck.
2. Automobiles.
Evidence sustained finding that employee was employer's agent for purpose of making trip in course of
which employer's truck collided with plaintiffs' automobile.
3. Automobiles.
When an employee, without employer's consent, lets unauthorized person drive employer's automobile in
furtherance of employer's purpose, and employee is present, employer is liable for negligence of
unauthorized driver.
4. Damages.
Award of $125,107.60 ($32,923.20 special damages and $32,184.40 general damages) was not
excessive. Where plaintiff was 58-year-old diabetic woman when accident happened, her thigh was
severely fractured, her leg was shortened two and one-half inches, her knee was stiff, she was hospitalized
17 months and endured four operations, her injury was permanent, her hospital care cost $26,205.68, she
incurred doctor bills of $6,475 and drug and ambulance expense of $242.50.
5. Damages.
Award of $17,500 for loss of wife's services was not excessive, where husband sustained five broken ribs
with consequent pain, he wore a rib belt for six weeks, he missed one week of work, he managed the home
from the accident until the trial three years later and performed household duties for himself and cared for
his wife when she was home, and her injury in the same accident precluded sexual indulgence.
6. Evidence.
Evidence of plaintiffs' poverty and financial distress caused by wife's huge medical bills should not have
been admitted in personal injury action.
The admission of evidence of plaintiffs' poverty and financial distress caused by wife's huge medical bills
was harmless error, where the trial was to the court and there was substantial competent evidence to
support the result as to liability and damage. NRCP 61.
The sum awarded to wife for hospital and medical expenses and other care should have been awarded to
husband in their joint suit for her personal injuries. NRS 41.170.
OPINION
The appeal is from a judgment in a personal injury suit awarding Mr. and Mrs. Garvin
(husband and wife, plaintiffs) damages totaling $143,255.40 against Lembke Construction
Co. of Nevada and its agent Robert Meagher (defendants).
The accident giving birth to this case happened on June 17, 1960 at about 11:30 p.m. on
the Tonopah-Las Vegas highway near the intersection of that highway with Smoke Ranch
road. The highway runs in a north-south direction. It is a two lane, 26 foot wide highway,
surfaced with black top, and is straight for a considerable distance in either direction from the
accident scene. There was no posted speed limit. Mr. Garvin and his wife were traveling
north in their passenger car toward Indian Springs at a speed of about 35 miles per hour. Mr.
Garvin was driving and his wife was to his right in the front seat. They were following an
unidentified car. One-quarter of a mile before the intersection of the highway with Smoke
Ranch road, the driver of that car signaled his intention to turn left onto Smoke Ranch road by
activating the blinking directional signal, which signal remained on until the turn at the
intersection was made. Meanwhile a Lembke Construction Company pickup truck was
approaching the intersection from the opposite direction (i.e., traveling south toward Las
Vegas on the highway) at a speed of about 60 miles per hour. It was being driven by Virginia
Sullivan who was not employed by Lembke. She had asked Meagher, a superintendent for
Lembke on the Sandia Base job, for a ride to Las Vegas, and Meagher accommodated her.
superintendent for Lembke on the Sandia Base job, for a ride to Las Vegas, and Meagher
accommodated her. Their trip started at Tonopah with Meagher driving. After they had
passed through Beatty he became sleepy and Virginia Sullivan took his place at the wheel. As
Miss Sullivan approached the mentioned intersection, the unidentified car preceding the
Garvins, and coming from the south, made its left turn in front of her. She swerved to her
right, onto a soft shoulder. The truck went out of control and coursed across the highway. The
right front of the truck collided with the left front of the Garvin car. The point of impact was
in the north-bound traffic lane about 5 feet, 10 inches from the east side of the highway. The
Garvin car was a total loss. These are the main facts of the accident. Other material evidence
will be related as the assignments of error are separately considered.
[Headnote 1]
1. The first contention is that the judgment may not stand because the sole proximate
cause of the accident was the negligent conduct of the driver of the unidentified car in turning
left in front of the oncoming pickup truck. We are told that Sullivan was faced with a sudden
peril and exercised due care in meeting an emergency situation. Thus the argument is offered
that she was not negligent as a matter of law, and that the trial court erred in deciding
otherwise. Though the record proof of her lack of due care is meager, it is not absent and, by
review standards, qualifies as substantial evidence. Had the unknown car turned left without
warning, perhaps the sudden peril doctrine would have persuaded the trial court that Sullivan
was free from fault. Here, however, the driver's intention to turn was made known. His
directional signal had been blinking for one-quarter of a mile before the Smoke Ranch road
intersection. The Garvins in the following car had noticed that signal. Though there is no
positive proof that the front directional signal of the unknown car was blinking, the trial judge
could reasonably infer that it was from the fact that the rear signal was operating. Sullivan
should have seen it and reduced her speed. She did not slow down, and could not control her
truck when the unknown car made its turn in front of her.
unknown car made its turn in front of her. On these facts it was permissible for the trial judge
to conclude that the sudden peril doctrine was not applicable, (Rocky Mt. Produce v.
Johnson, 78 Nev. 44, 55, 369 P.2d 198, 203), and that Sullivan failed to exercise due care in
the circumstances. We find no merit in this assignment of error.
[Headnote 2]
2. The second reason advanced to reverse the judgment against Lembke Construction Co.
is that the record does not support the lower court's finding that Meagher was the company's
agent for the purpose of making this particular trip. It is not necessary to relate all of the
relevant evidence offered by each side on this point. The trial court's finding is amply
supported by the statement of the vice-president of Lembke Construction Co. who submitted
a report to the Nevada Industrial Commission, following the accident, in which he stated:
Robert J. Meagher was employed as a superintendent on our project under construction
for the Atomic Energy Commission at Cactus Flats near Tonopah, Nevada. As a
superintendent, he had broad discretionary authority. This authority was to be exercised in the
interest of the company. This authority extended to making periodic trips to Las Vegas in
order to obtain materials and to discuss particular job problems with his superior. It had been
the practice for this man to drive to Las Vegas after work on Friday and to meet with his
superior on Saturday morning to discuss job problems. These trips were made in a company
vehicle with the consent and knowledge of his employer.
On Friday, June 17, 1960, Mr. Meagher was making such a trip to Las Vegas. On this trip
he saw fit to give a ride from Tonopah to one, Virginia Sullivan, not a company employee.
The transportation of anyone not an employee in a company vehicle is not considered in the
interest of the company. Between Tonopah and Las Vegas, he turned over to Miss Sullivan
the operation of the pick-up truck, and she was driving at the time the accident occurred.
None of the cases relied upon by the appellant Lembke Construction Co. to sustain its
contention contain evidence from the employer from which it may reasonably be inferred
that the employee was acting within the scope of his employment when the accident
happened.
Construction Co. to sustain its contention contain evidence from the employer from which it
may reasonably be inferred that the employee was acting within the scope of his employment
when the accident happened. For this reason we do not find them persuasive. The trial judge
was plainly justified in concluding that Meagher was the agent of Lembke Construction Co.
in making the trip in question.
[Headnote 3]
3. The next claim of error presents a problem of first impression in Nevada. So far as
Lembke Construction Co. is concerned, its truck was being driven by an unauthorized person
when the accident occurred. Sullivan was not its employee. The record does not show that
Meagher (Lembke's employee) was negligent in placing at the wheel a substitute without skill
or experience in the management of cars. Cf. Grant v. Knepper, 245 N.Y. 158, 156 N.E. 650,
54 A.L.R. 845. Nor has the Nevada legislature enacted an owner's liability or permissive
use statute under which some courts would hold the owner liable on the facts here present.
36 So.Cal.L.Rev. 296, 112 A.L.R. 424, 88 A.L.R. 177, 83 A.L.R. 884, 61 A.L.R. 873.
Therefore Lembke insists that it cannot be held liable to the plaintiffs here.
Case authority is split. See Restatement, Agency, 2d, appendix, 241, 134 A.L.R. 974. In
general terms we prefer the views expressed in the following cases: Whiteside v. Harvey, 124
Colo. 561, 239 P.2d 989; Farrell v. Pinson Transfer Company, 293 S.W.2d 170 (Ky. 1956);
Keen v. Clarkson, 56 Ariz. 437, 108 P.2d 573; Cain v. Bowlby, 10 Cir., 114 F.2d 519. In each
the owner was held liable under fact circumstances quite similar to those present here. We
hold that when an employee, without the employer's consent, lets an unauthorized person
drive the employer's car in furtherance of the employer's purpose, and the employee is
present, the employer is liable for the negligence of the unauthorized driver.
driver. We agree with Professor Mechem's candid observation * * * experience shows that
drivers will let their friends drive the master's truck, in spite of all that can be done to prevent
it, and that thus the risk of the substitute's careless driving becomes one of the normal risks of
the business, to be borne by the master along with the others. MechemOutlines of Agency,
4th ed., 385. We find no room for distinction between the present case and the one where a
drowsy employee, within the scope of his employment, continues to drive, falls asleep at the
wheel, and causes an accident. There the liability of the employer is clear. We believe that the
employer's liability is equally clear here. As stated in Cain v. Bowlby, supra, Defendant
cannot be heard to escape liability on the ground that Knight was at the wheel while the agent
in charge slept beside him in the cab. Our holding on this issue does not embrace the case
where the employee is not present in the vehicle when the accident occurs, nor does it deal
with the case where the trip in question is not within the scope of his employment.
The appellants direct our attention to a statement in Wells, Inc. v. Shoemake, 64 Nev. 57,
177 P.2d 451, The right of selection is the basis of the responsibility of a master or principal
for the act of his agent. No one can be her responsible, as a principal, who has not the right to
choose the agent from whose act the injury flows. That language was used in Wells v.
Shoemake, supra, to distinguish the legal relationship of principal and agent from that of one
who has selected an independent contractor. It is inappropriate as applied to the case before
us.
[Headnotes 4, 5]
4. We turn now to consider the claim that the award of damages is excessive. The plaintiff
wife was allowed $125,107.60 ($32,923.20 special damages and $92,184.40 general
damages), and the plaintiff husband $18,147.80 ($647.80 special damages and $17,500
general damages).
Neither award shocks our judicial conscience. Miller v. Schnitzer, 78 Nev. 301, 371 P.2d
824.
1

Mrs. Garvin was a 58-year-old diabetic when this accident happened. The pattern of her
life and that of her husband has been considerably changed by the tragic occurrence. In the
language of one of her doctors, she sustained as severe a fracture as one can get. Her main
injury was a comminuted fracture of the lower third of her left thigh bone. The fracture lines
extended into the knee joint. As a result her left leg is 2 1/2 inches shorter than her right leg.
Her left knee is stiff. Her hospitalization covered 17 months on four separate occasions
during 1960, 1961, 1962 and 1963. She endured four operations. Additional surgery, (not
amputation), is a medical probability. During hospitalization her diabetic condition posed
problems of management. She also incurred a staphylococcus infection which did not respond
to treatment. Her leg was still draining, three years after the accident, when the trial was held.
The charge for her hospital care alone was $26,205.68. She incurred doctor bills of $6,475,
and drug and ambulance expense of $242.50. The record is full of her pain and suffering. Her
injury is permanent. We do not consider her award excessive.
Mr. Garvin sustained five broken ribs with consequent pain. He wore a rib belt for six
weeks. He missed one week of work. From the accident until the trial, three years later, he
managed the home, performed household duties for himself and, of course, cared for his
wife when she was at home.
____________________

1
NRS 41.170 provides, In cases where a wife sustains personal injuries by reason of the negligence of
another, suit may be brought by the husband and wife jointly or separately at their option. When brought jointly,
damages shall be segregated and those damages assessed by reason of personal injuries and pain and suffering
shall be awarded to and belong to the wife, and damages assessed for loss of services and for hospital and
medical expenses and other care shall be awarded to the husband. In cases where the wife sues separately, all
damages sustained by the wife shall be awarded to and belong to the wife. The award to the wife of $32,923.20
was for hospital and medical expenses and other care. Under the statute that sum should have been awarded to
the husband. No issue as to this is raised by the appeal. Another aspect of the statute is mentioned in Kennedy v.
Kennedy, 76 Nev. 302, 352 P.2d 833. See also F. & W. Constr. Co. v. Boyd, 60 Nev. 117, 102 P.2d 627.
duties for himself and, of course, cared for his wife when she was at home. Her injury
precluded sexual indulgence. In these circumstances we do not deem $17,500 to be an
excessive award for the loss of his wife's services.
[Headnotes 6, 7]
5. Finally, it is contended that the trial court committed reversible error when it received,
over objection, evidence of the plaintiffs' poverty and financial distress caused by the wife's
huge medical bills. This evidence should not have been received. Had the case been presented
to a jury the reception of such evidence would probably be considered prejudicial error.
Waldroop v. Driver-Miller Plumbing & Heating Corp., 61 N.M. 412, 301 P.2d 521; Singles
v. Union Pac. Ry. Co., 174 Neb. 816, 119 N.W.2d 680. Here the parties submitted their
dispute to a court. The record shows substantial competent evidence to support the result as to
liability and damage. On the showing made we deem the error harmless. NRCP 61; Caye v.
Caye, 66 Nev. 78, 203 P.2d 1013, 211 P.2d 252; Duplantis v. Duplantis, 50 Nev. 234, 255 P.
1014; Rehling v. Brainard, 38 Nev. 16, 144 P. 167.
[Headnote 8]
We affirm the judgment below as to liability and the total damage award, but remand with
direction that the award of damages be redistributed in accordance with NRS 41.170, viz., to
the plaintiff Opal Fay Garvin the total sum of $92,184.40 general damages, and to the
plaintiff Desmond Norwood Garvin the total sum of $51,071, which latter figure includes
$32,923.20 for his wife's medical expenses and other care.
____________
80 Nev. 220, 220 (1964) Smith v. City of Las Vegas
WILLIS B. SMITH and AMELIA M. SMITH, Husband and Wife, and LAS
VEGAS-TONOPAH-RENO STAGE LINES, INC., a Nevada Corporation, Appellants, v.
CITY OF LAS VEGAS, NEVADA, a Municipal Corporation, Respondent.
No. 4691
April 21, 1964 391 P.2d 505
Action by city for injunction against violation of zoning ordinance. The trial court granted
summary judgment for plaintiff and a permanent injunction, and defendants appealed. The
Supreme Court, Badt, C. J., held that the parking of buses in a general commercial district
was contrary to zoning ordinance prohibiting outdoor storage in such district, in absence of
evidence forming basis for drawing distinction between storage and parking.
Affirmed.
Harry E. Claiborne, of Las Vegas, for Appellants.
Sidney P. Whitmore, City Attorney, and George F. Ogilvie, Jr., Chief Deputy City
Attorney, Las Vegas, for Respondents.
1. Zoning.
The parking of buses in a general commercial district was contrary to zoning ordinance prohibiting
outdoor storage in such district, in absence of evidence forming basis for drawing distinction between
storage and parking. NRS 278.010 et. seq.
2. Zoning.
In zoning case, reviewing court would ignore both trial court's statements and counsel's statements as to
facts not appearing in record, concerning conditions within the city.
3. Zoning.
Under zoning ordinance specifically declaring that use in violation thereof is a nuisance and may be
enjoined, relief by injunction is available.
4. Judgment.
Findings were unnecessary where summary judgment was granted. NRCP 52 (a).
OPINION
The City of Las Vegas, respondent herein, commenced this action for an injunction against
a continuing violation by the defendants of the city's zoning ordinance. It alleged that
pursuant to authorization of Chapter 278 of the Nevada Revised Statutes it had adopted a
master plan of zoning for the city which does not permit outdoor storage of large
diesel-powered or gasoline-powered auto buses in a C-2 (general commercial) district; that
the defendants Willis and Amelia Smith, appellants herein, are owners of property in a C-2
district and that they have permitted appellant Las Vegas-Tonopah-Reno Stage Lines, Inc., to
use the property for purposes of outdoor storage in violation of the ordinance; that the city
informed appellants of the violation and directed them to cease and desist from the parking of
buses on the property, but that the practice has persisted; that the city's action is authorized by
section XXVI of the zoning ordinance
1
and that the Board of Commissioners had requested
the city attorney to seek an injunction.
The lots owned by Smith and used by the stage lines were described as Lots 4 and 5, Block
6, of Fairview Tract to the City of Las Vegas, and as Lots 14, 15, and 16, Block 7, of said
tract, and that the same were in a C-2 zone. Defendants admitted that the property was used
by the bus company to park their buses in conjunction with their business located nearby,
but denied that this was a violation of the ordinance.
Under the pertinent part of the zoning regulations, general commercial use in a C-2 district
permits use in any way that it is permitted in a C-C or C-1 zone, in addition to certain
specified uses.
____________________

1
Enforcement; legal procedure: (D) Any * * * use of property hereafter contrary to the provisions of this
chapter * * * is hereby declared to be unlawful and a public nuisance, and the attorney shall upon order of the
Board of Commissioners, immediately commence action * * * for the abatement, removal and enjoinment
thereof * * * and shall take such other steps and shall apply to such court or courts as may have jurisdiction to
grant such relief as will abate * * * such * * * use, and restrain and enjoin any person from * * * using any
property contrary to the provisions of this chapter. * * *
any way that it is permitted in a C-C or C-1 zone, in addition to certain specified uses. Under
subdivision (A) 8 of C-2 [o]ther similar enterprises or businesses of the same general class,
which in the opinion, of the Planning Commission, as evidenced by resolution of record, are
not more detrimental to the welfare of the particular district than the enterprises or businesses
enumerated in this subsection.
The C-C or C-1 permitted uses in C-2 are not applicable. Nor was there any resolution by
the planning commission permitting use not more detrimental than the particularly
enumerated permissible uses.
Respondent moved for summary judgment based upon the amended complaint, the
answer, and the affidavit of Donald J. Saylor, director of planning of the city. No evidence in
opposition was presented. The court ordered the issuance of a permanent injunction and that
counsel for plaintiffs may prepare findings of fact and conclusions of law, and a permanent
injunction and judgment may be entered in accordance therewith. No findings or conclusions
are in the record. They were not included in appellants' designation of the record on appeal
and respondent filed no counter-designation. The appeal is from the order granting the motion
for summary judgment and the order granting a permanent injunction.
2

The ordinance does not in terms either permit or deny the right of parking buses in a C-2
area. Saylor's affidavit in support of the motion for summary judgment alleges, among other
things:
That in addition to such enumerated uses, other uses customarily incidental thereto are
permitted when located on the same premises as the enumerated uses; but that the lots in
question are not the lots, nor are they adjacent to the lots on which the defendants' business is
located, the same being located on Lot 12, Block 19, of Buck's Sub-division, and on Lots 9
and 10, Block 8, of Fairview Tract to the City of Las Vegas."
____________________

2
The notice of appeal recites that it is also taken from the writ of permanent injunction issued by the clerk
and the decision of the court relative theretononappealable matters with which we are not concerned.
of Fairview Tract to the City of Las Vegas. This is not denied.
[Headnote 1]
The trial court's construction of the ordinance was to the effect that the parking of the
buses in the C-2 zone was in violation of the zoning ordinance of the City of Las Vegas, and
that the use thereof, and the purpose for which the defendants utilized said property, is a
nuisance. We concur with the trial court's construction and the administrative construction
of the ordinance. In no other way can the master plan, which is clearly intended to be all
encompassing, be given effect.
Appellants contend that there is no showing that they violated the ordinance because the
buses were not stored but merely parked. They cite certain cases which purport to make a
distinction between storing and parking in some instances. This is a field of semantics
into which we do not feel it is necessary to enter. No evidence was offered by appellants with
reference to the length of time, the conditions, the circumstances, the number of buses or any
other conditions that might have led the trial court or this court to the necessity of drawing a
distinction.
[Headnote 2]
Appellants also assign error in that it appears from the trial court's decision that it stated its
awareness of sundry conditions within the city with reference to the operation of bus lines and
the parking of their diesel equipmenta realm beyond its powers of judicial notice or judicial
knowledge. Appellants' counsel was likewise (apparently from his long residence in the city)
led to a recital in his opening brief of a great many facts that nowhere appear in the record.
We find it in order to ignore both the statements of the court and the statements of counsel as
to such facts.
[Headnote 3]
Appellants further assign error in holding that an injunction will lie under the
circumstances. The ordinance specifically declares that a use in violation thereof is a
nuisance, and may be enjoined. Such provisions clearly give the right to relief by injunction.
clearly give the right to relief by injunction. Leigh v. City of Wichita, 148 Kan. 607 83 P.2d
644, 119 A.L.R. 1503; 6 McQuillin, Municipal Corporation 20.33 (3d ed.).
Appellants further contend that the court erred in granting a permanent injunction against
appellants because such action was discriminatory as the city [permitted] two other bus
companies to remain in the C-2 zone * * *. The record is bare of any such situation.
[Headnote 4]
Appellants further assign error because the court did not make findings, thus depriving
appellants of the opportunity of submitting proposed amendments or changes. NRCP 52(a)
specifically provides that no findings are required in the case of summary judgments.
Other assignments are made which we do not consider it necessary to discuss. The
judgment and orders are affirmed with costs.
____________
80 Nev. 224, 224 (1964) Sierra Pacific Power Co. v. Day
SIERRA PACIFIC POWER COMPANY, a Maine Corporation, Appellant, v.
RUTH E. DAY, GLORIA GUNN, AND JAMES R. DAY, Respondents.
No. 4692
April 24, 1964 391 P.2d 501
Appeal from the First Judicial District Court, Lyon County; Frank P. Gregory, Judge.
Action for wrongful death of motorist. After jury verdict for defendant power company the
trial court entered order granting plaintiffs' motion for new trial and the defendant power
company appealed. The Supreme Court, McNamee, J., held that whether motorist was
contributorily negligent in allegedly operating his automobile at a speed greater than
permitted him to keep vehicle under proper control was properly submitted to jury.
Reversed.
Zenoff, D. J., dissented.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Appellant.
Laxalt, Ross & Laxalt, of Carson City, for Respondents.
1. New Trial.
Verdict cannot be set aside by trial court where no irregularity is shown and verdict or decision is in
accordance with and justified by evidence.
2. Negligence.
Whenever question of contributory negligence arises on state of facts in regard to which reasonable men
might differ, it ought to be submitted to jury.
3. New Trial.
Trial court should use great caution in exercise of its power to set aside verdicts of jury on ground of
insufficiency of evidence to justify such verdicts.
4. Negligence; New Trial.
Where no irregularity is shown prejudicial to plaintiff in negligence action, and evidence on contributory
negligence is conflicting and such that reasonable men might differ, question of contributory negligence
should be submitted to jury, and it is an abuse of discretion of trial court to weigh evidence after jury
verdict for defendant.
5. New Trial.
Where evidence in trial of negligence action is in conflict and question as to plaintiff's contributory
negligence is one upon which reasonable men might differ, it is error to grant new trial on ground that
evidence was insufficient to justify verdict. NRCP 59(a).
6. Automobiles.
Whether motorist, who died after his automobile first struck power company's truck which was parked on
shoulder of highway at dusk and then struck power company's lighted truck which was parked in motorist's
lane of travel, was contributorily, negligent in allegedly operating his automobile at a speed greater than
would permit him to keep vehicle under proper control was properly submitted to jury.
OPINION
This is an action to recover damages for the alleged wrongful death of the husband and
father of the plaintiffs. The verdict of the jury was for the defendant.
Appeal is from the order granting plaintiffs' motion for a new trial.
On October 27, 1961, at about 6:00 P.M., employees of defendant were making repairs to
some electrical equipment near defendant's power substation on Colony Road in Smith
Valley. The equipment had been damaged by strong winds earlier in the day. As it was dusk
or almost dark, the employees parked two company trucks near the substation. One of these
trucks, denominated a line truck, was parked facing south with a slight angle to the east on
the east lane of the road, which was the lane for north-bound traffic. Its headlights were on as
was also a spotlight on the top of the truck which was directed on the power poles where the
repairs were being made. The other truck was a pickup which was parked 50 to 75 feet south
and east of the line truck on the dirt shoulder of the road. Its headlights were on and faced the
substation in a southeasterly direction. Its rear wheels were just off the east border of the
road. There was a small reflective or fluorescent insignia toward the front of the south side of
the pickup. At the time of the accident decedent was proceeding north in the east lane when
the right side of his vehicle struck the right rear of the pickup then collided with the left front
of the line truck. Prior to the first impact there were no skid marks. Thereafter decedent's car
left tire tread marks on the dirt shoulder of the east side of the road between the pickup and
the line truck. Colony Road makes a curve about 3/4 of a mile south of the substation, and
about 1,500 feet therefrom it has a slight dip.
Barry Graton testified that prior to the accident he was going about 50 miles per hour when
decedent passed him going in the same direction. When he rounded the turn in the Colony
Road one or two minutes after the accident he could see lights ahead of him and after the dip
he saw the headlights of the line truck He slowed down and when he was 300 feet from the
scene of the accident someone in the road signaled him to stop. He then saw the three
vehicles in the road and stopped.
Hussman, a deputy sheriff, called to the scene after the accident testified that as he came
around the bend in Colony Road, he could see automobile headlights and also the
spotlight.
in Colony Road, he could see automobile headlights and also the spotlight.
Norman Dixon was driving south on Colony Road just before the accident. As he
approached the substation he saw the two trucks, with their headlights burning, and also the
spotlight. One-half mile south of the substation decedent who was approaching from the
south passed him going north at about 60 miles per hour. He noticed nothing irregular in
decedent's driving.
Louie Giovacchini was also driving south on Colony Road just before the accident. He
saw the headlights of the trucks and the spotlight prior to passing the line truck. After passing
the substation he saw decedent's car approach from the south with his lights on low beam. He
did not appear to be driving in an irregular or abnormal fashion.
The collision forced the line truck backward about 20 to 40 feet with its rear end across the
center line of the road. The decedent's vehicle came to rest about five feet south of the line
truck.
After the case was submitted to the jury, they returned to the courtroom. The testimony of
Hussman concerning the tire marks then was read back to them at their request. The jury
deliberated approximately seven hours before returning their verdict for the defendant.
The motion for a new trial was granted upon the ground that there was manifest disregard
by the jury of the instructions of the court, and upon the further ground that the evidence upon
which the verdict was reached was insufficient to support the same.
At the time the motion for new trial was granted two of the grounds for the granting of
such motion under NRCP 59(a) were manifest disregard by the jury of the instructions of the
court and insufficiency of the evidence to justify the verdict.
In granting the motion, the trial court did not specify which of its instructions the jury
disregarded. The record shows that the jury was properly instructed on all phases of
negligence, including contributory negligence, proximate cause, and burden of proof. If we
should determine that the court abused its discretion in granting a new trial upon the
ground that the evidence was insufficient to support the verdict it necessarily would
follow that the jury did not disregard the court's instructions.
should determine that the court abused its discretion in granting a new trial upon the ground
that the evidence was insufficient to support the verdict it necessarily would follow that the
jury did not disregard the court's instructions. City of Reno v. Van Ermen, 79 Nev. 369, 385
P.2d 345.
Pursuant to the rule-making power vested in the Supreme Court by the legislature, this
court, deeming it proper, ordered the deletion from NRCP 59(a) of insufficiency of the
evidence to justify the verdict or other decision, or that it is against law. This deletion
resulted from the concurring opinion of Thompson, J., in City of Reno v. Van Ermen, supra.
First, we wish to note that although the rule authorized the granting of a new trial upon the
ground of insufficiency of the evidence to justify the verdict, the trial court in its order
granting a new trial stated that the evidence upon which the verdict was reached was
insufficient to support the same. Inasmuch as respondent's motion for new trial used the
word justify, the paraphrasing of the rule by the district judge has, in our opinion, no
significance.
A perusal of the entire record reveals no irregularity or error whatever prejudicial to the
respondents. In fact, respondents were given a fair and errorless trial and one ably presented
by their counsel. The jury was properly instructed with respect to contributory negligence. No
objection was made to any of the instructions given or refused. There is no serious contention
that the appellant was not negligent nor can it seriously be contended as a matter of law that
the decedent was not guilty of contributory negligence.
[Headnotes 1-3]
In Nevada Rock and Sand Co. v. Grich, 59 Nev. 345, 93 P.2d 513, we stated approval of
the following rules:
1. A verdict cannot be set aside by a trial court where no irregularity of error is shown and
the verdict or decision is in accordance with and justified by the evidence.
2. Whenever a question of contributory negligence arises upon a state of facts in regard
to which reasonable men might differ, it ought to be submitted to the jury.
arises upon a state of facts in regard to which reasonable men might differ, it ought to be
submitted to the jury.
3. The district court ought always to use great caution in the exercise of the power to set
aside verdicts of juries on the ground of insufficiency of the evidence to justify such verdicts.
We there stated that these rules are not in conflict with the rule that trial courts should set
aside verdicts where in their opinion there is a clear preponderance of evidence against them;
where the scale of evidence which leans against the verdict very strongly preponderates;
where they are clearly satisfied in their judgment that the evidence is unsufficient to sustain
the verdicts; or where, after weighing the evidence, they think injustice has been done. * * *
The rule that the trial court may not merely substitute its opinion or judgment for that of the
jury has no application where that court is satisfied that an injustice has been done and that
the evidence clearly preponderates against the verdict.
[Headnotes 4, 5]
We have reached the conclusion herein that in any case where no irregularity or error
whatsoever is shown prejudicial to a plaintiff during the trial of a negligence action and
where there is a conflict in the evidence with respect to the plaintiff's (or in a wrongful death
action of a decedent's) contributory negligence upon which reasonable men might differ, the
question of contributory negligence should be submitted to the jury and that, under such
circumstances, it is an abuse of discretion on the part of a trial court to weigh the evidence in
this regard after a jury verdict for the defendant. It is error to grant a new trial under such
circumstances upon the ground that the evidence was insufficient to justify the verdict. We
could have decided City of Reno v. Van Ermen on this ground, as suggested by the
concurring opinion therein, but we were not required to do so because there we held that the
sole proximate cause of the accident was the negligence of the driver of the car involved in
the accident.
Anything in Nevada Rock and Sand and later cases which are inconsistent with this
conclusion is expressly overruled.
[Headnote 6]
At common law a new trial could be granted where the trial court thought an injustice had
been done. Shute v. Big Meadow Inv. Co., 45 Nev. 99, 198 P. 227. No such cause or ground
is stated in NRCP 59(a). In any event it does not appear that any injustice had been done to
the respondents by the verdict of the jury.
This court in Shute quoted with approval Scott v. Haines, 4 Nev. 426, as follows: * * * it
may be safely said that a verdict or other decision cannot be set aside where no irregularity or
error whatever is shown, and the verdict or decision is in accordance with and justified by the
evidence.' The court in such case has no more right to set aside a verdict or decision than it
has to render a judgment without pursuing the forms prescribed by law. Error in some
respects, or injustice in the result, alone authorizes an interference with a judgment or decree
once rendered.
With the testimony of Graton that the whole place was lighted up and the testimony of
two other witnesses coming from the north that they could see the lights although the
headlights of the two trucks were facing more to the south than to the north, and with the
inference from a lack of skid marks prior to the first impact that the decedent did not slow
down as he approached the trucks, the question of whether or not he failed to operate his
vehicle at a rate of speed which would permit him to keep it under proper control clearly was
a question upon which reasonable men might differ and thus properly was submitted to the
jury.
The order appealed from is reversed, and the cause remanded with directions to reinstate
the verdict and the judgment based thereon.
Thompson, J., concurs.
Zenoff, D. J., dissenting:
I dissent. The cause of action arose May 27, 1962, trial was held commencing May 20,
1963, motion for new trial granted by the trial court July 10, 1963.
trial granted by the trial court July 10, 1963. Thereafter, NRCP (59) (a) (7) was removed by
the supreme court as a ground for new trial. Our consideration should be directed to the rules
as they existed at the time of the trial of the cause and the motion for new trial.
In Nevada Rock and Sand Co. v. Grich, 59 Nev. 345, 93 P.2d 513, the court stated that a
verdict cannot be set aside by a trial court where no irregularity or error is shown and the
verdict or decision is in accordance with and justified by the evidence. Further, in City of
Reno v. Van Ermen, 79 Nev. 369, 385 P.2d 345, the court said, If the verdict rests on
substantial evidence, it should stand; if it does not, it should be set aside.
Agreed, there is no serious contention but that the appellant was negligent. Contrary,
however, it is seriously contended as a matter of law whether or not the decedent was
contributorily negligent.
Decedent was driving along a rural road during the twilight hours at a speed not
unreasonable under the circumstances. He was not intoxicated nor is it claimed that he was
under the influence of liquor. He came out of a dip in the road into an unusual situation where
he could see the lights of one parked truck but not necessarily the other parked truck. His
attention was drawn to headlights at least of the one truck on his left and a light from a
spotlight shining on the substation which was under repair. There was a smaller truck parked
immediately off the roadway on his right with the headlights shining to his right. There were
no flares to warn that it was there. A small fluorescent decal was on the door panel of that
truck but what with all the driver was called upon immediately to see, the decal can hardly
serve as an adequate warning.
Decedent was 62 years old. His perception and reaction to a suddenly confronted danger
created by the negligence of the appellant can be far different from the perception and
reaction of the others who testified and, in my opinion, still meet the standards of an
ordinarily prudent man under the circumstances. It seems apparent that the decedent swerved
to the right to avoid the obstruction, on the left. It appears to me to have been entirely normal
to have done so.
I agree with the trial court that the verdict was not in accordance with and justified by the
evidence, nor was the evidence substantial in favor of contributory negligence. To meet the
test of the concurring opinion in Van Ermen, the evidence of contributory negligence did not
preponderate in favor of the verdict.
Badt, C. J., being disqualified, the Governor commissioned Honorable David Zenoff,
Judge of the Eighth Judicial District Court, to sit in his place.
____________
80 Nev. 232, 232 (1964) Fialkoff v. Nevil
In the Matter of the Estate of DAVID LEO
FIALKOFF, Deceased
ROSA FIALKOFF, Appellant, v. IRENE NEVIL,
Respondent.
No. 4606
April 28, 1964 391 P.2d 740
Appeal from the Eighth Judicial District Court, Clark County; David Zenoff, Judge.
Proceeding by widow to obtain admission of deceased husband's will to probate in Clark
County, Nevada. The lower court denied admission of will to probate, and widow appealed.
The Supreme Court, Badt, C. J., held that evidence was sufficient to sustain trial court's
finding that decedent who returned to France after having become a naturalized citizen of the
United States was at time of his death a domiciliary of Paris, France, leaving no estate in
Clark County, Nevada.
Affirmed.
David Goldwater, of Las Vegas, for Appellant.
Jones, Wiemer & Jones, of Las Vegas, and Val Linton, of Los Angeles, for Respondent.
Supreme Court would not interfere with trial court's determination of fact question as to place of
decedent's domicile if there was substantial evidence to support it.
2. Domicile.
Evidence was sufficient to sustain trial court's finding that decedent who returned to France after having
become a naturalized citizen of the United States was at time of his death a domiciliary of Paris, France,
leaving no estate in Clark County, Nevada.
OPINION
Rosa Fialkoff sought probate of the will of her late husband, David Leo Fialkoff, in Clark
County, Nevada. Irene Nevil, daughter of the decedent by a former wife, filed a contest
against the admission of the will to probate on the grounds (1) that decedent was a
domiciliary of France at the time of his death, (2) that the court was without jurisdiction to
admit the will to probate for ancillary administration because of assets brought into Nevada
after decedent's death, and (3) that appellant is estopped by reason of the admission of the
will to probate and administration of the estate in France.
The court below denied admission of the will to probate and the petitioner appealed from
such denial.
Appellant devotes a material part of her brief to the third ground statedthat of estoppel.
However, as the court decided this issue in appellant's favor, she is in no way aggrieved and
the question requires no consideration here.
1

As to the two remaining issues, appellant states in her opening brief:
The Court below found, as a matter of law, that decedent died domiciled' in France. The
Court refused therefore, to admit the Will to ancillary probate of the estate consisting of
certificates of shares of stock in a Finnish corporation and which were physically transported
to Nevada in 1956, two and a half years after decedent's death.
____________________

1
The issue of estoppel arose under the contention that Rosa was estopped from testifying that the decedent
was domiciled in Clark County, Nevada, by reason of her testimony in the French probate to the effect that he
was domiciled In Paris, France, at the time of his death.
decedent's death. Appellant agrees. Appellant acknowledges that if decedent did not die
domiciled' in Nevada, then the Court was without jurisdiction to admit his Will to ancillary
probate because, at the time of his death, decedent left no substantial property within the
State of Nevada. (Emphasis is by appellant.)
The trial court had held that decedent at the time of his death on December 14, 1953, was
a domiciliary of Paris, France, and not of Las Vegas, County of Clark, State of Nevada
* * *.
2
French law appears to be similar. Article 110 of the Civil Code provides: The place
where the estate shall be proved shall be determined by the domicile.
Under New Repertoire Dalloz, Estates, No. 6, the following appears: The estate shall
be probated at the last domicile of the decedent; the law attaches itself * * * to the domicile
and not to the residence.
There remains then for determination a mixed question of fact and law (In re Weed's
Estate, 120 Cal. 634, 53 P. 30) as to decedent's domicile at the time of his death in Paris.
More narrowly, the question would be whether the court's holding that the decedent was a
domiciliary of Paris and not of Clark County, Nevada, at the time of his death, finds
substantial support in the record. As the decedent became a resident of Los Angeles,
California, from 1941 to 1947, and became a naturalized citizen of the United States in 1947,
after which he returned to his former residence at 109 Rue Erlanger in Paris, where he had
lived prior to 1941, and thereafter in January, 1953, came to Clark County, Nevada,
established his residence there and obtained a decree of divorce on March 23, 1953,
3
remarried, executed his will, saying that he was of Clark County, Nevada, and in early
June, 1953, returned to France with his new wife, taking up residence at 109 Rue Erlanger,
Paris, where they lived until decedent's death, the question becomes somewhat more
narrowed to the following: Is there substantial evidence to support the conclusion that
after decedent's return to France in 1953, he changed his domicile from Clark County,
Nevada, to Paris, France, where he maintained it until and including the date of his death.
____________________

2
NRS 136.016 reads in pertinent part as follows: 1. Wills may be proved and letters testamentary or letters
of administration granted in the county of which the deceased was a resident at the time of death, whether the
death occurred in that county or elsewhere * * *.
2. The estate of a nonresident decedent may be settled by the district court of any county wherein any part
of the estate may be.

3
Validity of the divorce decree is not questioned.
taking up residence at 109 Rue Erlanger, Paris, where they lived until decedent's death, the
question becomes somewhat more narrowed to the following: Is there substantial evidence to
support the conclusion that after decedent's return to France in 1953, he changed his domicile
from Clark County, Nevada, to Paris, France, where he maintained it until and including the
date of his death.
[Headnotes 1, 2]
We might rest our affirmance upon the position taken by appellant in her opening brief,
wherein appellant states that respondent had failed to sustain the burden of proof that
decedent had changed his domicile from Clark County, Nevada, to Paris, France. In this,
appellant asserts that this is the only genuine issue in the case, and that, in attempting to
support the burden of proof respondent produced five witnesses who testified to declarations
of the decedent that France was his principal establishment, whereas appellant on the other
hand had produced six witnesses who testified with equal positiveness that decedent
repeatedly declared during the last six months of his life that Nevada was his true home and
principal establishment. Following this, appellant frankly admits that the slight numerical
superiority of appellant's witnesses is of no weight in and of itself, and that the witnesses are
listed merely to illustrate that the evidence as to decedent's declaration is fairly and evenly
divided. This patently left for determination, a question of fact for the trial court, with which
determination this court will not interfere if there was substantial evidence to support it.
In addition to the testimony as to declarations by the decedent of his intent, much
substantial evidence was introduced on behalf of respondent. Briefly such evidence is to the
following effect.
Almost immediately after decedent's Nevada divorce and his marriage to appellant,
decedent and appellant left for New York, visited with respondent and left for Paris and took
up residence at decedent's former quarters at 109 Rue Erlanger, Paris. They redecorated their
living quarters and from this residence decedent made several business trips to various
European countries.
business trips to various European countries. None of his business interests was liquidated.
He renewed his French identity card on a basis that could be done only by a foreigner who
intended to live permanently in France. His conferences with his business associates indicated
that he was going to live permanently in Paris or retire on the French Riviera. Following his
death on December 14, 1953, at 109 Rue Erlanger, Paris, probate proceedings were initiated
in France and later in Germany. In these proceedings appellant stated under oath that the
decedent was a domiciliary of Paris.
4

Appellant, decedent's new wife, a foreigner, held only a tourist's limited visa and could not
have lived permanently in the United States under such visa. Decedent, before leaving the
United States, divested himself of all properties owned in this country. He shipped his
American car to Europe. He invited his daughter, respondent herein, to come to Paris in 1954,
to live with him and his new wife at their home so that his daughter could continue her
studies in Paris. Decedent had maintained at all times the apartment lease in Paris. He did not
liquidate his business interests, whether in France, Germany, Switzerland, Belgium, or
Finland. He did not rent or buy any real property in the United States, nor register to vote
here, nor acquire any business here, nor join any clubs, social or church activities.
Support of the French administration of his estate was accorded by appellant's delivery to
her attorney in Paris of decedent's carte de sejour ordinaire and the certificate of decedent's
death showing his domicile to be in Paris, together with two certificates of domicile from the
two concierges of the Paris apartment house indicating decedent's domicile at the time of his
death to be Paris. This was supported by eminent French and American counsel. The
certificate of the French notaire, following the briefs and opinions of counsel, established that
at the time of his death decedent was a domiciliary of Paris.
____________________

4
Reference to this by the lower court in rejecting the issue of estoppel was to the effect that it could be used
in weighing appellant's testimony.
She profited thereby by becoming the universal legataire. In the German ancillary probate
administration, based on the primary French probate administration, the question of
decedent's being a domiciliary of Paris was again resolved.
Other evidence in the record might be cited. The record on appeal contains over 400 pages,
and a box of documents admitted as exhibits, some six inches high.
With the narrowing of the issues as hereinabove set forth, there is ample support in the
record of the lower court's finding that decedent at the time of his death was a domiciliary of
Paris, France, leaving no estate in Clark County, Nevada.
5

Thompson, J., and Bowen, D. J., concur.
McNamee, J., being disqualified, the Governor commissioned Honorable Grant L. Bowen,
Judge of the Second Judicial District Court, to sit in his place.
____________________

5
The record contains a reference to a bank account of $37.08 left by decedent in Clark County, but this was
checked out by appellant prior to the petition for probate.
____________
80 Nev. 237, 237 (1964) Ennes v. Mori
JOE ENNES, Appellant, v. TULIO MORI, Respondent.
No. 4696
April 28, 1964 391 P.2d 737
Appeal from the First Judicial District Court, Churchill County; Jon R. Collins, Judge.
Action for dissolution of a partnership, an accounting, and other relief. The trial court
entered judgment unsatisfactory to defendant and he appealed. The Supreme Court, Badt,
C.J., held that denial of defendant's motion for leave to amend his answer to plead fraud and
fraudulent representations as an affirmative defense was not an abuse of discretion even if
there was no showing that plaintiff would be prejudiced by allowing amendment, where
defendant approved the pleaded issues in a pre-trial conference and did not make the
motion until the trial was under way.
80 Nev. 237, 238 (1964) Ennes v. Mori
not an abuse of discretion even if there was no showing that plaintiff would be prejudiced by
allowing amendment, where defendant approved the pleaded issues in a pre-trial conference
and did not make the motion until the trial was under way.
Affirmed.
Brian L. Hall, of Reno, for Appellant.
Diehl & Recanzone, of Fallon, for Respondent.
Pleading.
Denial of defendant's motion for leave to amend his answer to plead fraud and fraudulent representations
as an affirmative defense was not an abuse of discretion even if there was no showing that plaintiff would
be prejudiced by allowing amendment, where defendant approved the pleaded issues in a pretrial
conference and did not make the motion until the trial was under way. NRCP 8(c), 9 (b), 12(h).
OPINION
The only error assigned in this appeal is that the denial by the trial judge of defendant's
motion for leave to amend his answer was an abuse of discretion.
The action was brought by Mori against his partner Ennes who had entered into a
partnership agreement for the ownership and conduct of the business known as Club
Horseshoe in Fallon, Nevada, a licensed bar and gaming establishment. The complaint
alleged the purchase by Ennes of a half interest in the business from Mori, the execution of a
promissory note by Ennes to Mori, and a chattel mortgage on Ennes' half interest in the
equipment and stock in trade to secure such note, the default of Ennes thereunder, the further
default of Ennes in his agreement to discharge half of an existing indebtedness from Mori to
one Austin, and general breach and repudiation of the partnership agreement by Ennes. The
partnership agreement provided that each of the partners devote all of his working time to the
business.
The answer contained sundry admissions and denials, and alleged as affirmative
defenses that plaintiff had breached the articles of co-partnership in that he did not
actively participate in or devote his entire time to said business.
80 Nev. 237, 239 (1964) Ennes v. Mori
and alleged as affirmative defenses that plaintiff had breached the articles of co-partnership in
that he did not actively participate in or devote his entire time to said business. He joined in
plaintiff's prayer that the partnership should be dissolved and an accounting be made. He also
sought damages from the plaintiff by reason of plaintiff's alleged breach of the agreement.
The complaint was filed and summons issued November 19, 1962, and personal service
made within the county on the following day. On March 27, 1963, motion and notice of
motion for default were filed. On April 10, 1963, without objection, the answer was filed.
On December 14, 1962, a stipulation was entered into whereunder (1) defendant entered
his appearance, (2) the parties dissolved the partnership as of that date, (3) the business was
to continue with Mori as the sole proprietor, (4) an accounting was to be made forthwith at
the equal cost of the parties, (5) assets were to be equally divided after satisfaction of the
partnership debts.
The trial date was originally set for July 1, 1963, but appellant obtained a continuance to
August 12, 1963. The morning of that date was spent in a pre-trial conference
1
at which the
documentary evidence was stipulated into the record, as well as the amount of money due to
plaintiff on the promissory note and the amount due and owing by the parties to the prior
owner of the business (both subject to any defense or setoff of the defendant), the amount of
the partnership obligations, and the amount thereof paid by each of the parties and the balance
due on said obligations, as well as the value of the partnership assets. At such pre-trial
hearing it does not appear that any order was sought as to the pleadings or the issues, and the
same remained as set forth in the complaint, answer, stipulation, and pre-trial order regarding
the sums involved. When the case was called for trial in the afternoon, plaintiff rested on the
prima facie showing made at the pre-trial conference. Defendant stated that he did not desire
to make an opening statement and called the plaintiff as an adverse witness.
____________________

1
The attendance at such pre-trial conference was appeal counsel's first connection with the case.
80 Nev. 237, 240 (1964) Ennes v. Mori
statement and called the plaintiff as an adverse witness.
Defendant's counsel propounded the following question to the plaintiff: When you had
your talks and conversations with Joe Ennes, prior to signing this agreement, the partnership
agreement I am referring to, did you make any statements to Joe Ennes as to in your opinion
how much money the business was capable of making in the future, or how much money the
business made in the past? Plaintiff objected on the ground that fraud or fraudulent
representations had not been pleaded as a defense, and that under NRCP 8(c) fraud must be
specially pleaded, that under NRCP 9(b) the circumstances constituting the fraud must be
stated with particularity, and that under NRCP 12(h) if not so pleaded, is waived.
Appellant conceded that the objection was well taken, but asked leave to amend the
answer so as to plead fraud and fraudulent representations as an affirmative defense, saying
(as he says in this appeal) that it is completely within the court's discretion as to whether to
allow in this instance the defendant to amend his [answer] or not, but contended, as he
contends here, that there is no showing that the plaintiff will be prejudiced by allowing the
amendment.
The trial court then called on counsel for defendant to make a specific offer of proof as to
what you feel you can adduce if the court permitted you to go forward. The answer was: It
was represented to the defendant in this case that the business was a profitable business, that
for at least two prior years it had made money; that for the years subsequent to the entering
into the agreement it was represented to Mr. Ennes that each of the partners would receive at
least Ten to Twelve Thousand Dollars apiece per year. And based upon the representations,
which we can establish were not true, that the business would have been a profitable business
in the past, which it was not, and that it would make money in the future, which it did not.
This was either fraud or a gross misrepresentation on the part of the plaintiff to induce the
defendant to sign this particular agreement.
80 Nev. 237, 241 (1964) Ennes v. Mori
The court then elicited the following admissions from defendant's counsel: that defendant
has had considerable time to plead these matters, in fact nearly six months and that there are
no intervening motions to modify or amend defendant's pleading up to the present time. The
objection to the motion to amend was sustained and the witness was excused.
Appellant contends most strenuously that such ruling was an abuse of the court's
discretion, in that at no time did the respondent show or claim that he would be prejudiced by
allowing the amendment.
In support of this he cites 3 Moore, Federal Practice, 804, 805 (2d ed.), for its discussion
of Rule 15 to the end that such rule, together with others, looks to the disposition of cases on
their merits, facilitates amendments, and recognizes that at the trial stage, pleadings should
not be over-emphasized. The noted author then refers to the fact that Rule 15, in conjunction
with Rule 16 deals with pre-trial procedure and the formulation of issues and makes it
possible for the court to have the pleadings amended so that the real, disputed issues are
clearly formulated.
2
Appellant relies most heavily, however, on the text writer's conclusion
that if objection is made to the trial of an issue not raised by the pleadings, an amendment is
to be allowed to raise the issue, unless the objecting party can show (emphasis supplied) that
he would be actually prejudiced * * *. Further discussing Rule 15(b) the author says:
Normally a court should, in such a situation, permit the amendment and grant a continuance
where the person seeking the amendment has been, and is, acting in good faith, since the
court can assess costs against the party at fault. Id. 849.
Appellant further cites 1A Barron & Holtzoff, Federal Practice & Procedure, Rules Ed.
442, at 710, where the authors say: Indeed it is perhaps no exaggeration to say that the only
reason for not allowing an amendment to a pleading is prejudice to the opposing party. But
the authors say further that "in determining the question of prejudice, the timeliness of
the amendment is an important factor." Id. 744.
____________________

2
1n the pre-trial conference, appellant made no statement or suggestion of adding the defense of fraud.
80 Nev. 237, 242 (1964) Ennes v. Mori
authors say further that in determining the question of prejudice, the timeliness of the
amendment is an important factor. Id. 744.
Thus we see that the rather extreme statements that a motion to amend during the trial
should be allowed in order to raise the new issue unless the objecting party can show that he
will be actually prejudiced and that the only reason for not allowing an amendment is
prejudice to the opposing party, are somewhat modified if it appears that the amendment is
not sought in good faith, or is untimely.
Cases in point supporting the extreme rule stated, which apparently throws the entire
burden upon the opposing party to show prejudice in order to defeat the amendment, and
however much the party seeking the amendment has been dilatory or otherwise at fault, are
hard to come by. This is evidenced by the following statement in appellant's opening brief:
In reviewing the authorities upon the issue raised in this case it is virtually impossible to
find any case in point and the cases cited are not too much help since all of them hold that it
is a matter of discretion with the lower court, which discretion will not be reversed unless it is
abused, each court looking at each individual case and the facts therein to make a
determination; however, in most all of the cases reviewed, the court based its decision upon
what, if any, prejudice would be occasioned to the other party if the court allowed the
amendment.
Directly in point, however, is the case of Schick v. Finch (D.C.S.D.N.Y.), 8 F.R.D. 639, in
which the factual situation corresponds rather closely to that in the instant case. The
defendant, having interposed a special defense in his answer, sought leave to add an
additional special defense at the trial. The court noted that there was no disclosure of how
long ago these facts had been ascertained nor whether reasonable diligence would not have
revealed them sooner; that the original parties to the transaction are the parties to the
litigation; that if defendant's refusal to pay the note was founded on plaintiff's
misrepresentation, he undoubtedly knew wherein he believed the plaintiff to have
mis-stated facts. "Surely," said the court, "he must have articulated them in his mind by
the time he served his answer in July, 1943."
80 Nev. 237, 243 (1964) Ennes v. Mori
wherein he believed the plaintiff to have mis-stated facts. Surely, said the court, he must
have articulated them in his mind by the time he served his answer in July, 1943. The court
goes on to say that the liberal policy provided in Rule 15(a) does not mean the absence of all
restraint. Were that the intention, leave of court would not be required. The requirement of
judicial approval suggests that there are instances where leave should not be granted. The
instant case, I believe, falls into such a category. It is made on the very eve of trial. It
proposes to change allegations which go to the heart of the issue without assigning an
adequate cause for the modification. It is concerned with matters, which, if true, must have
been within the defendant's knowledge when the controversy arose. The Honorable Simon
H. Rifkind, District Judge, denied the motion for leave to amend.
The case was cited with approval in Anderson v. National Producing Co., 2 Cir., 253 F.2d
834. There defendant sought to amend to assert an additional defense in a negligence action
in order to set up 203 of the Pennsylvania Workmen's Compensation Act. The United States
Court of Appeals for the Second Circuit noted that the motion to amend had not been made
until the trial had proceeded; that the pre-trial examinations had been taken and the plaintiff
had closed her case on a theory of common-law negligence before the matter was brought up.
The court held that the denial of leave to amend was a proper exercise of the trial court's
discretion.
We prefer to follow the reasoning of these two cases. Otherwise we should be approving a
rule under which, despite an entire lack of diligence on the part of the defendant, in spite of
long-lasting neglect without excuse, in spite of a defendant's approval of the pleaded issues in
a pre-trial conference, he is entitled to an amendment and may throw the entire burden of
showing resulting prejudice upon the opposing party.
We prefer to follow the logic of Judge Rifkind's opinion as approved by the Court of
Appeals for the Second Circuit, and to hold that there was no abuse of discretion in the trial
court's denial of appellant's motion for leave to amend his answer.
80 Nev. 237, 244 (1964) Ennes v. Mori
in the trial court's denial of appellant's motion for leave to amend his answer.
____________
80 Nev. 244, 244 (1964) Cheek v. Bell
CECIL CHEEK and VEDA F. CHEEK, Appellants, v. ROY
L. BELL and SARAH E. BELL, Husband and Wife, Respondents.
No. 4697
April 29, 1964 391 P.2d 735
Appeal from the First Judicial District Court, Churchill County; Richard L. Waters, Jr.,
and Frank B. Gregory, Judges.
Proceeding on motion of defendants for order setting aside a default judgment. The lower
court entered order denying motion and defendants appealed. The Supreme Court, McNamee,
J., held that order striking joint answer of defendants for failure to contain their addresses and
acknowledgment and order striking answer of individual defendant on ground that no address
had been given, both made on oral ex parte motions of plaintiffs' counsel without notice, were
erroneous.
Reversed.
Roy Lee Torvinen, of Reno, for Appellants.
Diehl & Recanzone, of Fallon, for Respondents.
1. Pleadings.
Where both original joint answer of defendants and subsequent answer of one defendant were signed and
there was nothing to show an intent to defeat purpose of rule, failure of answers to contain addresses of
either defendant as required by rule was a mere irregularity, capable of being waived and did not vitiate
either answer, particularly where plaintiffs knew addresses of defendants. NRCP 11.
80 Nev. 244, 245 (1964) Cheek v. Bell
2. Pleading.
Failure of answer to contain acknowledgment was a non-jurisdictional defect which was ground for
motion to strike or to set aside pleading, but plaintiff who received it without objection could not treat it as
a nullity, and trial court could not disregard defective answer without affording opportunity to pleader to
supply acknowledgment. NRCP 11.
3. Pleading.
Answer which is defective with respect to acknowledgment and the address of pleader should not be
treated as a nullity unless pleader is given an opportunity to correct defect on motion to strike and fails to
do so. NRCP 11.
4. Pleading.
Order striking joint answer of defendants for failure to contain their addresses and acknowledgment and
order striking answer of individual defendant on ground that no address had been given, both made on oral
ex parte motions of plaintiffs' counsel without notice, were erroneous. NRCP 5(a), 7(b) (1).
OPINION
On March 25, 1963 respondents filed their complaint alleging that the appellants were
maintaining a nuisance. They prayed for an injunction requiring appellants to remove from
their premises a partially completed structure, rubbish, and second-hand building materials.
They also asked that appellants be restrained from completing the unfinished structure
thereon.
Cecil Cheek was personally served with summons in Churchill County on April 4, 1963.
On April 18 both appellants filed an answer in proper person. The answer contained no
acknowledgment and their address was not stated therein as required by NRCP 11. On the ex
parte motion of respondents the answer was stricken and pursuant to order of the court the
default of Cecil Cheek was entered on April 30, 1963. Thereafter, on May 7, 1963, the
summons was served on Veda Cheek in Churchill County. On May 24, 1963 Veda Cheek
filed an answer to the complaint in proper person which she verified and acknowledged, but
failed to state her address therein. On ex parte motion of respondents the court, on June 4,
1963, ordered stricken this answer also for failure to comply with said Rule 11 and
directed that her default be entered.
80 Nev. 244, 246 (1964) Cheek v. Bell
court, on June 4, 1963, ordered stricken this answer also for failure to comply with said Rule
11 and directed that her default be entered. On June 25, 1963 the court signed its findings of
fact and conclusions of law which recite that the case was regularly tried on that day, that
respondents appeared through their attorneys, that the appellants did not appear, and that their
default had been entered. The court found that all of the allegations of respondents' complaint
were true. On July 9, 1963 judgment for respondents was entered in accordance with their
prayer.
On August 12, 1963 appellants filed a motion for an order setting aside the judgment
entered on July 9, 1963 and permitting them to file their answer. A copy of the proposed
answer was served and filed with their notice of motion. The motion was based upon the
affidavits of Cecil Cheek and Veda Cheek and upon the oral testimony of Cecil Cheek. It
appears from the affidavits and testimony that neither appellant received notice of either ex
parte motion until after the answers had been stricken, although Cecil Cheek did testify that
he knew, prior to the time Veda Cheek's answer was filed, that something was wrong with the
first answer. At the time of the hearing of the motion the parties stipulated that respondents'
counsel knew the address of the appellants, that is, the location of their residence in Fallon.
The motion to set aside the judgment was denied. Appeal is from the order denying the
motion.
It is the position of respondents that where an acknowledgment and the address of a party
who is not represented by an attorney is required, an unacknowledged answer which also
lacks the address of the party must be treated as a nullity. Rule 11 does provide that if a
pleading is not signed or is signed with intent to defeat the purpose of this rule it may be
stricken as sham and false and the action may proceed as though the pleading had not been
served.
Both the original joint answer of the appellants and the subsequent answer of Veda Cheek
were signed. There is no evidence to show that the improper signing was done with intent to
defeat the purpose of Rule 11.
80 Nev. 244, 247 (1964) Cheek v. Bell
In fact the opposite appears. Cecil Cheek testified that he and his wife were relying upon the
advice of a California attorney who was not familiar with the Nevada rules of procedure.
[Headnote 1]
The failure of the answers to contain the address of either appellant is a mere irregularity,
capable of being waived, which does not vitiate either answer. Evans v. Backer, 101 N.Y.
289, 4 N.E. 516; Heidenheimer v. Daniel, 45 Misc. 385, 90 N.Y.S. 387. Particularly should
this rule apply where the adverse parties knew the address of the appellants.
[Headnotes 2, 3]
We feel likewise with respect to the failure of the first answer to contain an
acknowledgment as required by said Rule 11. The absence of an acknowledgment is a mere
defect in the pleading which is not jurisdictional. Cf. In re Sessions' Estate, 217 Ore. 340, 341
P.2d 512. Such omission furnishes a ground for a motion to strike or set aside the pleading.
The adverse party cannot after receiving it without objection safely disregard the same and
treat it as a nullity. Neither can the trial court disregard such a defective answer without
affording an opportunity to the pleader to supply an acknowledgment. Cf. New York Life Ins.
Co. v. Long, 177 Ky. 445, 197 S.W. 948; People v. Birch Securities Co., 86 Cal.App.2d 703,
196 P.2d 143. In other words, an answer defective with respect to the acknowledgment and
address of the pleader should not be treated as a nullity unless the pleader is given an
opportunity to correct the defect and fails to do so. Such opportunity should be given upon a
motion to strike. Pence v. Durbin, 1 Idaho 550.
[Headnote 4]
The order of April 30, 1963 striking the joint answer of the appellants and the order of
June 4, 1963 striking the answer of Veda Cheek, both having been made on the oral ex parte
motion of respondents' counsel without notice to either appellant, were erroneous. NRCP
5(a), 7(b) (1); cf. Gull v. Hoalst, 77 Nev. 54, 359 P.2d 383. It necessarily follows that the
default judgment based on said orders was also erroneous.
80 Nev. 244, 248 (1964) Cheek v. Bell
said orders was also erroneous. For this reason the lower court should have granted the
appellants' motion to set aside the judgment based upon the improperly entered defaults and
afforded both defendants an opportunity to cure their defective pleading.
Reversed.
____________
80 Nev. 248, 248 (1964) Hanley v. State
GRAMBY ANDREW HANLEY, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 4683
May 4, 1964 391 P.2d 865
Appeal from the Eighth Judicial District Court, Clark County; William P. Compton,
Judge.
Criminal proceeding in which defendant moved for a change of venue before case came on
for trial. The trial court denied motion without prejudice to right to renew motion, and the
defendant appealed. The Supreme Court, Thompson, J., held that denial of motion was not an
abuse of trial court's discretion or prejudicial to defendant, though preferred practice would be
to reserve ruling on pretrial motion to change venue until jury panel had been subjected to
examination, and that defendant's motion for change of venue was premature.
Affirmed.
Babcock & Sutton, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Edward G. Marshall, District Attorney, and William
E. Freedman, Deputy District Attorney, of Las Vegas, for Respondent.
1. Criminal Law.
Denial of motion for change of venue before case came on for trial with leave to renew motion after jury
panel had been examined was not an abuse of trial court's discretion or prejudicial to defendant, though
preferred practice would be to reserve ruling on pretrial motion to change venue until jury panel had been
subjected to examination.
2. Criminal Law.
Defendant's motion for change of venue was premature where made before case came on for trial.
3. Criminal Law.
Issue whether adverse publicity might fatally infect fairness of criminal trial should be presented to trial
court by appropriate motion after voir dire examination of jurors, since court is not in a position prior to
that stage to determine whether there exists a substantial nexus between adverse publicity and ability to
impanel a fair and impartial jury. NRS 175.115.
4. Criminal Law.
Trial court must have before it information revealed by voir dire before ruling on motion to change
venue.
OPINION
[Headnote 1]
On this appeal we are asked to overrule a settled test relating to a motion to change the
venue of a criminal trial. In State v. Alsup, 68 Nev. 45, 226 P.2d 801, we said: It has long
been established by decisions of this court that the proper procedure to determine the issue as
to whether a defendant could have a fair and impartial trial in the county is the result obtained
from examination of the panel. This is the proper test to ascertain the ultimate fact. Accord:
State v. Millain, 3 Nev. 409; State v. Gray, 19 Nev. 212, 8 P. 456; State v. Teeter, 65 Nev.
584, 200 P.2d 657; State v. Fouquette, 67 Nev. 505, 221 P.2d 404. Here, Hanley
(defendant-appellant) moved for a change of venue before the case came on for trial. The
motion was grounded upon his affidavit which alleged that he could not receive a fair and
impartial trial in Clark County because of five newspaper articles which (according to him)
implied that he was guilty of the offense (burglary), and that he had illegally attempted to
influence the jurors who had been summoned to try the case when it had been previously
scheduled for trial. In denying the motion the court made it clear that such denial was without
prejudice to Hanley's right to renew his motion if, after voir dire examination of the jurors, it
was shown that the jurors were influenced by the newspaper articles."
were influenced by the newspaper articles. Though the preferred procedure is to reserve
ruling on a pretrial motion to change venue until the jury panel is subjected to examination,
1
the court cannot be said to have abused its discretion in denying the motion with leave to
renew it after the panel had been examined. It is manifest that the court's action did not cause
Hanley prejudice.
[Headnotes 2, 3]
In seeking to overturn the denial of his motion, Hanley suggests that the news articles
were, and now are, inherently prejudicial to his right to a fair trial. We find it unnecessary to
republish the articles in this opinion. Their effect, if any, upon the jurors to be selected cannot
be ascertained before voir dire examination. At least, this is the necessary conclusion to be
drawn from the cases cited above and NRS 175.115. That statute provides that no person
shall be disqualified as a juror by reason of having formed or expressed an opinion upon the
matter or cause to be submitted to such jury, founded upon * * * statements in public press
* * * provided it appears to the court, upon his declaration under oath or otherwise, that he
can and will, notwithstanding such an opinion, act impartially and fairly upon the matters
submitted to him. See State v. Milosovich, 42 Nev. 263, 175 P. 139; State v. Williams, 28
Nev. 395, 82 P. 353. We conclude that Hanley's motion for a change of venue was
prematurely made. Whether adverse publicity may fatally infect the fairness of a criminal trial
is an issue to be presented to the trial court by appropriate motion after voir dire
examination of the jurors.
____________________

1
NRS 2.110 provides in part: * * * An order changing or refusing to change the place of trial shall not be
appealed from on an appeal from a judgment, but only on direct appeal from the order changing or refusing to
change the place of trial. In this case, had the court reserved ruling on the pretrial motion to change venue until
the jury panel was subjected to examination, the possibility of two appeals (the present one and possibly another
should the defendant renew his motion after voir dire examination and should such motion be denied) would
have been precluded.
In the second Alsup case, State v. Alsup, 69 Nev. 121, 243 P.2d 256, the defendant did not appeal from the
order denying his motion to change venue until after he was tried and convicted. Whether his delay in seeking
review of the venue question contravened NRS 2.110 was not presented to the court for determination.
court by appropriate motion after voir dire examination of the jurors. Until that stage in the
proceeding, a court is not in a position to determine whether there exists a substantial nexus
between the adverse publicity and the ability to impanel a fair and impartial jury.
[Headnote 4]
We do not intend to suggest that voir dire examination is the sole criterion, though indeed
an important one. Cf. Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417. We hold
only that it is essential for the trial court to have before it the information revealed by voir
dire before ruling on a motion to change venue. Our view of this matter makes it unnecessary
to decide other points raised.
Affirmed.
____________
80 Nev. 251, 251 (1964) State v. Plas
STATE OF NEVADA, Appellant v. TOM NAZZIE
PLAS, Respondent.
No. 4721
May 6, 1964 391 P.2d 867
Appeal from the First Judicial District Court, Ormsby County; Frank B. Gregory, Judge.
Habeas corpus proceeding. The lower court discharged respondent from custody and state
appealed. The Supreme Court, McNamee, J., held that where it appeared from record that
accused without any force or coercion on part of officer who was questioning him freely
consented to search of his automobile which disclosed evidence he thereafter claimed was
illegally obtained and accused admitted that no actual threat was made to induce the consent,
a holding that as a matter of law accused's consent was given because of unlawful assertion of
authority by officer would be unjustified.
Reversed.
80 Nev. 251, 252 (1964) State v. Plas
Harvey Dickerson Attorney General, Theodore H. Stokes District Attorney and J.
MacArthur Wright, Deputy District Attorney, Ormsby County, for Appellant.
Carl F. Martillaro, of Carson City, for Respondent.
1. Habeas Corpus.
In absence of evidence legally sufficient to indicate that offense has been committed and that accused is
guilty, accused should not be bound over for trial and is entitled to be discharged from custody under writ
of habeas corpus.
2. Criminal Law.
Whether in particular case an apparent consent to search without warrant was voluntarily given is
question of fact.
3. Searches and Seizures.
Where it appeared from record that accused without any force or coercion on part of officer who was
questioning him freely consented to search of his automobile which disclosed evidence he thereafter
claimed was illegally obtained and accused admitted that no actual threat was made to induce the consent, a
holding that as a matter of law accused's consent was given because of unlawful assertion of authority by
officer would be unjustified.
Although searches and seizures made without proper warrant are often to be regarded as unreasonable
and in violation of federal Constitution, obtaining of warrant may be waived by individual and he may give
his consent to search and seizure.
Waiver of search warrant and consent, freely and intelligently given, to search and seizure makes lawful a
search and seizure otherwise unlawful.
Mere fact that consent to search and seizure was given while accused was in custody of police officer did
not render consent involuntary.
7. Criminal Law.
Where sufficient legal evidence was presented at preliminary hearing to make it appear that public
offense had been committed and that there was sufficient cause to believe accused was guilty thereof,
accused was properly bound over for trial.
OPINION
This is an appeal by the state in a habeas corpus proceeding from an order discharging
respondent from custody.
80 Nev. 251, 253 (1964) State v. Plas
Respondent stopped his automobile for a vehicle check by a police officer. When he was
unable to produce the legal registration of the vehicle he drove it to the police station at the
request of the officer. There, within 20 minutes after commencement of his questioning by
the officer, he gave a written and signed consent to the officer to search his automobile. The
search revealed an automatic pistol under the seat. Respondent thereupon was charged with
the crime of possession of a firearm by a person convicted of a felony. NRS 202.360 (2).
At the preliminary hearing, respondent moved to exclude or suppress the evidence
consisting of the pistol on the ground that it was obtained by an illegal search and seizure.
The motion was denied and defendant bound over for trial in the district court. This
proceeding for habeas corpus followed.
[Headnote 1]
We have consistently held in this state that in the absence of evidence legally sufficient to
indicate that an offense has been committed and that there is sufficient cause to believe the
accused guilty thereof, he should not be bound over for trial in the district court. In such a
case an accused is entitled to be discharged from custody under a writ of habeas corpus. Ex
parte Hutchinson, 76 Nev. 478, 357 P.2d 589; Ervin v. Leypoldt, 76 Nev. 297, 352 P.2d 718;
Eureka County Bank Habeas Corpus Cases, 35 Nev. 80, 126 P. 655, 129 P. 308.
It is conceded that in the absence of the evidence obtained upon the search of the
automobile, the committing magistrate would be without authority to bind respondent over
for trial.
[Headnotes 2, 3]
Whether in a particular case an apparent consent to a search without a warrant was
voluntarily given is a question of fact. So far as appears from the record the respondent,
without any force or coercion on the part of the officer who was questioning him, freely
consented to the search of his automobile which disclosed the evidence he since has claimed
was illegally obtained. In fact respondent admits that no actual threat was made to induce the
consent. Under the facts of this case, a holding that as a matter of law respondent's consent
was given because of an unlawful assertion of authority by the officer would be
unjustified.
80 Nev. 251, 254 (1964) State v. Plas
holding that as a matter of law respondent's consent was given because of an unlawful
assertion of authority by the officer would be unjustified. People v. Burke, 47 Cal.2d 45, 301
P.2d 241.
[Headnotes 4-6]
Although searches and seizures made without a proper warrant are often to be regarded as
unreasonable and in violation of the federal constitution, the obtaining of the warrant may be
waived by the individual; he may give his consent to the search and seizure. Such waiver and
consent, freely and intelligently given, converts a search and seizure which otherwise would
be unlawful into a lawful search and seizure. United States v. Mitchell, 322 U.S. 65; Brainard
v. United States, D.C.Cir., 220 F.2d 384; Judd v. United States, D.C.Cir., 190 F.2d 649. The
mere fact that the consent was given while respondent was in the custody of a police officer
does not render the consent involuntary. United States v. Mitchell, supra.
[Headnote 7]
Sufficient legal evidence having been presented at the preliminary hearing to make it
appear that a public offense had been committed and that there was sufficient cause to believe
the respondent guilty thereof, he was properly bound over for trial.
Reversed.
____________
80 Nev. 254, 254 (1964) Nevada Industrial Guaranty v. Sturgeon
NEVADA INDUSTRIAL GUARANTY CO., a Nevada Corporation, Appellant, v. LINDA
STURGEON, dba the MOTOR MART, Respondent.
No. 4701
May 8, 1964 391 P.2d 862
Judge.
Proceeding wherein the trial court denied a motion to set aside a default judgment.
Defendant appealed. The Supreme Court, Badt, C. J., held, inter alia, that there was no abuse
of discretion in refusing to vacate default judgment on ground of defendant's failure to
ascertain legal effect of federal court's order approving reorganization plan which he
assumed would stay proceedings in state court against defendant debtor.
was no abuse of discretion in refusing to vacate default judgment on ground of defendant's
failure to ascertain legal effect of federal court's order approving reorganization plan which he
assumed would stay proceedings in state court against defendant debtor.
Affirmed.
Carl F. Martillaro, of Carson City, for Respondent.
1. Judgment.
Record revealed no mistake, inadvertence, surprise or excusable neglect which could justify the setting
aside of a default judgment rendered against corporation which was engaged in Bankruptcy Act
reorganization and assertedly relied on belief that plaintiff would prosecute claim in federal court, taking
no action until execution was issued. Bankr. Act, 101 et seq., 148, 11 U.S.C.A. 501 et seq., 548;
NRCP 60(b)(1).
2. Judgment.
There was no abuse of discretion in refusing to vacate default judgment on ground of failure to ascertain
legal effect of federal court's order approving reorganization plan which it was assumed would stay
proceedings in state court against defendant debtor. Bankr. Act, 101 et seq., 148, 11 U.S.C.A. 501 et
seq., 548: NRCP 60(b)(1).
OPINION
Respondent caused a default judgment to be entered against appellant upon respondent's
complaint for damages for breach of contract. The only question presented to this court is
whether the court below abused its discretion in denying appellant's motion to set aside the
default judgment.
Personal service was made on defendant May 7, 1963, by service on its resident agent,
Howard Babcock, in Clark County, Nevada. Babcock, on that date, forwarded the summons
and complaint to the appellant and informed it that it had 20 days within which to answer the
complaint.
1
On May 28, one day after the expiration of such statutory period of 20 days for
appearance, the appellant contacted Babcock and inquired as to the status of the action.
____________________

1
One Robert McSherry was named as an additional defendant in the complaint. The record does not disclose
that he was ever served and he is not involved in the judgment entered against the corporate defendant, the
appellant herein. He has no place in this appeal.
of such statutory period of 20 days for appearance, the appellant contacted Babcock and
inquired as to the status of the action. Babcock informed the appellant that he had been under
no instructions to act in the case on its behalf. However, he immediately telephoned
Martillaro, counsel for respondent, and informed him that by reason of a federal court order
entered May 7, 1963, approving appellant's petition for a Chapter X Reorganization, 11
U.S.C.A. 548, the state court action was stayed. Babcock also asserts that he inquired of
Martillaro as to the status of the action and that Martillaro indicated that no default had been
taken and that respondent would prosecute her claim in the federal court action. This was
denied by Martillaro, who stated that he had made no such representation and that the only
matter that transpired over the telephone was Babcock's statement concerning the effect of the
federal court order. Babcock wrote Martillaro a letter confirming their conversation. The
letter was brief, and we quote it here:
This will confirm our telephone conversation of this date, concerning the above matter, at
which time I advised that on May 7, 1963 the United States District Court for the District of
Nevada entered it's Order approving the petition of Nevada Industrial Guaranty Co. Enclosed
please find thermofax copy of said Order.
As you know, the entry of this Order stays all pending litigation affecting the debtor.
It is immediately apparent that the letter contained no mention of any representation by
Martillaro that respondent would prosecute her claim in the federal court.
Although Babcock's affidavit stated that Martillaro had said on the phone on May 28 that
nothing was on file with the exception of the complaint and summons and that no default had
been taken, this is likewise flatly denied by Martillaro. Babcock says that he further advised
Martillaro that he had been retained for the purpose of the Chapter X proceedings, and further
that the defendant corporation had a branch office in Reno and retained counsel for certain
purposes in the conduct of its business in the northern part of the state. Martillaro's affidavit
states that Babcock informed me that he was the attorney for the defendants."
he was the attorney for the defendants. Martillaro stated in his affidavit that he had made no
representation that no default had been taken, nor that he would dismiss the state action and
file his claim in the bankruptcy proceedings.
The corporation's default was entered May 28, 1963, and judgment was entered July 2,
1963, and notice of judgment served on Babcock August 5, 1963. On August 12, 1963,
appellant moved to set aside the default judgment upon the grounds of mistake,
inadvertence, surprise and excusable neglect of counsel for said defendant as provided for in
Rule 60(b)(1) NRCP. It was supported by Babcock's affidavit as heretofore recited, and by
submission on September 6, 1963 (the day the motion was heard), of an answer and
cross-complaint. Martillaro, in addition to his affidavit, testified that the full extent of the
conversation was Babcock's information that he was attorney for the defendants; that on May
7 he had received the summons and complaint and filed a petition in bankruptcy and advised
that the entry of the May 7 order by the federal court stayed all state litigation affecting the
debtor; that there was no talk at all concerning the taking of a default or the non-taking of a
default. He merely informed me he had filed the bankruptcy petition and under the law all
proceedings were stayed. If he was under this impression I was not going to disenchant him,
Your Honor. The court, in denying the motion, said: Counsel delayed for over a month
after entering the default before bringing the matter on for hearing. It was only after judgment
and sometime after that, that either counsel or the defendant attempted to do something. In
other words they just sat back and sweat it out until execution was issued. I don't think that is
a mistake, inadvertence, surprise or excusable neglect. The motion to set aside the default
judgment is denied.
In denying the motion to set aside the default judgment the trial court necessarily based
this on implied factual determinations of the disputed facts as above recited. Such factual
determinations would include the following: that Martillaro did not represent to Babcock that
he, Martillaro, would prosecute plaintiff's claim in the federal court proceedings; that
Martillaro did not state that no default had been taken, nor did he imply that no default
would be taken; that Babcock was not the attorney for the defendants in the instant case,
but represented Nevada Industrial Guaranty Co. in the bankruptcy proceedings in the
federal court.
These facts, in our opinion, distinguish the case of Hotel Last Frontier v. Frontier
Properties, 79 Nev. 150
the federal court proceedings; that Martillaro did not state that no default had been taken, nor
did he imply that no default would be taken; that Babcock was not the attorney for the
defendants in the instant case, but represented Nevada Industrial Guaranty Co. in the
bankruptcy proceedings in the federal court.
These facts, in our opinion, distinguish the case of Hotel Last Frontier v. Frontier
Properties, 79 Nev. 150, 380 P.2d 293, relied upon by appellant. In that case this court said:
The record shows that defense counsel had prepared an answer to plaintiff's complaint but
had withheld filing it because another case was pending between the same parties involving
other provisions of the same lease and agreement, and discussions as to all matters in dispute
had been carried on. Consequently counsel assumed that a default would not be taken.
Such situation is entirely absent from the present case. In Hotel Last Frontier we said:
The showing required by NRCP 60 (b) (1), formerly NCL 8640, of mistake, inadvertence,
surprise, or excusable neglect, singly, or in combination, must, of course, be made.
[Headnote 1]
We must agree with the trial court's conclusion that no showing was made of mistake,
inadvertence, surprise, or excusable neglect. There was neglect of the appellant but it was not
excusable.
[Headnote 2]
Appellant contends that the trial court abused its discretion in refusing to vacate the default
judgment because appellant's attorney made an honest mistake of law, namely, Babcock's
assumption that the federal court's order approving the petition of appellant in a Chapter X
Bankruptcy Act Reorganization stayed all proceedings at law against appellant. Such order,
however, stayed only proceedings to enforce liens against the debtor's property, bankruptcy
and receivership proceedings, and mortgage foreclosures. 11 U.S.C.A. 548. There are many
instances in which courts have held that counsel's mistake of law, and particularly his failure
to look up the law, was not considered excusable neglect.
neglect. Security Truck Line v. City of Monterey, 117 Cal.App.2d 441, 256 P.2d 366, 257
P.2d 755; A. & S. Air Conditioning v. John J. Moore Co., 184 Cal.App.2d 617, 7 Cal.Rptr.
592; Shearman v. Jorgenson, 106 Cal. 483, 39 P. 863. There was no abuse of discretion in the
court's refusal to vacate the default on the ground of Babcock's failure to ascertain the legal
effect of the federal court's order approving the reorganization petition. The trial court's order
denying appellant's motion to set aside the default judgment is affirmed.
No costs are allowed.
I concur, but wish specifically to direct attention to Canon 25 of the Canons of
Professional Ethics. It reads in part: A lawyer should not ignore known customs or practice
of the Bar
* * * even when the law Permits, without giving timely notice to the opposing counsel.
1
It
is the practice among members of the Nevada Bar for an attorney, who knows that a
defaulting adverse party is represented by counsel in the pending case, to give notice of
intention to have default entered. Twenty-one days after the defendant had been served with
process, Mr. Martillaro was told (among other things) by Mr. Babcock that he (Babcock) had
been engaged to represent the defendant. On that very day the defendant's default was entered
without notice to Mr. Babcock. If the record on appeal could be read to show that Mr.
Babcock relied upon the custom and practice referred to, I would not hesitate to find such
reliance excusable. In such case, I would consider Hotel Last Frontier v. Frontier Properties,
79 Nev. 150, 380 P.2d 293, sufficiently on point to be controlling. However, the record
before us does not show that Mr. Babcock failed to enter an appearance for the defendant
because of an assumption that a default would not be entered without notice.
I do not suggest that Mr. Martillaro was obliged to extend time for the defendant's
appearance.
____________________

1
The Canons were adopted by the Nevada State Bar Association (Rule 20, Rules of the Nevada State Bar),
effective February 12, 1962, by order of the Supreme Court.
extend time for the defendant's appearance. I mean only that his plan to enter default should
have been communicated to Mr. Babcock during the course of their telephone conversation
on May 28. Mr. Martillaro's duty to his client did not preclude an honest statement of
intention. On the other hand, silence may lead opposing counsel to rely upon an assumption
that professional standards will be followed.
____________
80 Nev. 260, 260 (1964) Asmussen v. New Golden Hotel Co.
MADELINE ASMUSSEN, Appellant, v. NEW
GOLDEN HOTEL COMPANY, Respondent.
No. 4706
May 13, 1964 392 P.2d 49
Appeal from judgment of the Second Judicial District Court, Washoe County; Peter Breen,
Judge.
Invited guest of hotel brought action against hotel operator for injuries sustained by guest
when she slipped and fell on hotel lobby floor which was heavily waxed and unbuffed. The
trial court entered a judgment on a directed verdict for the hotel operator, and the guest
appealed. The Supreme Court, Thompson, J., held that the hotel operator was not liable, in
absence of evidence that improper wax was used and that unbuffed waxed floor was
dangerously slippery.
Judgment affirmed.
Vargas, Dillon, Bartlett & Dixon and Alex. A. Garroway, of Reno, for Respondent.
1. Negligence.
Proprietor owes invited guests duty to keep premises in reasonably safe condition for use, and duty is that
of ordinary care.
2. Negligence.
Presence of foreign substance on floor generally is not compatible with standard of ordinary care, and if
guest slips and falls because of foreign substance, liability of proprietor may be found if condition was
created by proprietor or his agent, or, if created by another, proprietor had actual or constructive notice of
its existence.
3. Negligence.
Waxing of floors is compatible with legal standard of ordinary care.
4. Negligence.
Owner, in treating a floor, may use wax without incurring liability to one who slips and falls, unless
owner is negligent in materials he uses or in manner of applying them.
5. Innkeepers.
Hotel operator was not liable for injuries sustained by invited guest in fall on hotel lobby floor, which
was heavily waxed and unbuffed, where there was no proof that improper wax was used or that unbuffed
waxed floor is dangerously slippery.
OPINION
In this case Mrs. Asmussen (plaintiff-appellant) slipped and fell on a waxed linoleum
floor. At the close of the case the trial court directed a verdict for the New Golden Hotel
Company (defendant-respondent). NRCP 50 (a). The judge apparently believed that a finding
of liability was precluded as a matter of law. We agree, and affirm the judgment.
The facts are undisputed. On January 13, 1962 Mrs. Asmussen, an invited guest of the
hotel, stepped from the elevator onto the hotel lobby floor. Her right foot slipped from under
her. She fell to the floor and was injured. While on the floor she saw that the linoleum was
very heavily waxed, the wax lying on top rather than being buffed in. No wax rubbed off on
her clothes. About a yard away was a mark approximately a foot and a half long and an inch
and a half wide, where the wax had been disturbed. She does not claim to have caused that
mark. She did not notice the heavily waxed floor before she fell. Such is the story of the
occurrence as related by her. No other evidence was offered on the issue of liability. The
defendant chose to rest without introducing any evidence. The record does not show who
waxed the floor, what materials were used, when the waxing was done, nor the manner or
method used in applying it to the floor surface.
[Headnotes 1-4]
Of course a proprietor owes his invited guests a duty to keep the premises in a reasonably
safe condition for usethe duty of ordinary care. The experience of mankind demands that
the illusory standard of ordinary care be applied in a reasonable fashion, and courts generally
have done so. Thus we perceive a clear distinction in the law between a slip and fall caused
by litter, debris, (Wagon Wheel v. Mavrogan, 78 Nev. 126, 369 P.2d 688; Eldorado Club v.
Graff, 78 Nev. 507, 377 P.2d 174), water (Worth v. Reed, 79 Nev. 351, 384 P.2d 1017), or
some other foreign substance upon a floor, and the case now before us. The presence of a
foreign substance on a floor generally is not compatible with the standard of ordinary care. If
one slips and falls because of it, liability may be found if the condition was created by the
proprietor or his agent or, if created by another, the proprietor had actual or constructive
notice of its existence. This is not true when a court is called upon to judge the legal
consequences flowing from a slip and fall upon a waxed floor. It has long been established
that the waxing of floors is compatible with the legal standard of ordinary care. Annot., 63
A.L.R.2d 591. An owner in treating a floor may use wax without incurring liability to one
who slips and falls, unless he is negligent in the materials he uses or in the manner of
applying them. Bonawitt v. Sisters of Charity of St. Vincent's Hospital, 43 Ohio App. 347,
182 N.E. 661.
1

[Headnote 5]
Here, as in Bonawitt, the record does not show the material used nor the manner of its
application. We are asked to infer a basis for liability from the mere observation of the
plaintiff that the floor was heavily waxed and not buffed in. It would be manifestly wrong to
allow a jury to infer that an improper wax was used when the record is silent on the point. For
the same reason the fact finder should not be permitted to speculate that the wax used
should have been buffed, rubbed or polished.
____________________

1
Cf. Wilson v. Payne, 74 Nev. 312, 330 P.2d 120, where this court reversed a Rule 41(b) dismissal. Though
the record did not show that the wax had been negligently applied, the court held that the jury should have been
allowed to decide whether a waxed floor was dangerous to a customer who was wearing wool socks provided by
the defendant for a slenderizing treatment.
fact finder should not be permitted to speculate that the wax used should have been buffed,
rubbed or polished. We do not know whether buffing, rubbing or polishing increases
slipperiness, or lessens it; whether it is for beautification or safety. Nor would jurors be
expected to have such knowledge. We therefore conclude that it is impermissible to infer that
an unbuffed waxed floor is dangerously slippery. To do so would effectively destroy the
requirement that a claimant show either that the proprietor was negligent in the material used
or in the manner of applying it. The following cases support our view: Barnes v. Motel O.
Henry Corporation, 229 N.C. 730, 51 S.E.2d 180; Blessing v. Goodman, 137 N.J.L. 395, 60
A.2d 69; Bonawitt v. Sisters of Charity of St. Vincent's Hospital, supra; McCann V. Gordon,
315 Pa. 367, 172 A. 644. We acknowledge that some cases may be read to support a contrary
view, but choose not to follow them.
Affirmed.
____________
80 Nev. 263, 263 (1964) Truckee-Carson Irrigation District v. Baber
TRUCKEE-CARSON IRRIGATION DISTRICT, a Corporation, Appellant, v.
RALPH W. BABER, JERRY E. JONES, ELMER J. FLICK, and SOUTHERN
PACIFIC COMPANY, a Corporation, Respondents.
No. 4711
RALPH W. BABER and JERRY E. JONES, Appellants, v. TRUCKEE-CARSON
IRRIGATION DISTRICT, a Corporation, Respondent.
No. 4727
May 18, 1964 392 P.2d 46
Appeals from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Actions by railroad and crew members against irrigation district for damages sustained
through result of train derailment caused by washout of tracks after water had overflowed
banks of irrigation ditch.
train derailment caused by washout of tracks after water had overflowed banks of irrigation
ditch. The trial court entered judgments against irrigation district which appealed. The
Supreme Court, McNamee, J., held that the irrigation district was not a governmental agency
and the defense of sovereign immunity was not available to it in tort claim, and giving of
instructions on what constituted an agent and who was agent of district when water as turned
on were harmless error, if any, where it was conceded that district was responsible for
preparation of ditches and had breached its duty in that respect.
Judgment affirmed.
Vargas, Dillon, Bartlett and Dixon, and Alex. A. Garroway, of Reno, for Truckee-Carson
Irrigation District.
Leonard T. Howard, of Reno, for Ralph W. Baber and Jerry E. Jones.
Guild, Busey & Guild, of Reno, and Robert R. Hepperle, of San Francisco, California, for
Elmer J. Flick.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Southern Pacific
Company.
1. Waters and Water Courses.
Irrigation district was not a political subdivision of state and was not entitled to defense of sovereign
immunity as bar to claim in tort action.
Giving of instructions defining who was an agent and stating that individual who opened gates was acting
as agent for defendant irrigation district, sued for damages as result of train derailment following track
washout caused by overflowing of irrigation ditch, were, if error, harmless where it was the admitted duty
of district to see that water was safely and properly distributed through irrigation system and its duty was
clearly breached.
It is not reversible error to refuse to give an unavoidable accident instruction where substance of it is
covered by other instructions.
Where jury was fully instructed as to negligence, proximate cause, and burden of proof and as to fact that
mere happening of accident did not support inference that some party was negligent, refusal to give
unavoidable accident instruction was not reversible error.
5. Damages.
In determining whether damages are excessive, the test is whether judicial conscience is shocked by the
award.
6. Damages.
Award of $1,625 to individual who sustained injury to left knee from which no serious damage resulted
but who had experienced and might continue to experience occasional aching in knee and missed three
days of work was not inadequate.
7. Damages.
Award of $1,000 to person who sustained two fractured ribs and bruises was out of work for 30 days, but
who aside from pay loss for workdays missed suffered no special damages was not inadequate.
OPINION
On August 5, 1960, at 8:30 A.M., a Southern Pacific freight train was derailed near Fallon,
Nevada. During the 12-hour period prior thereto a considerable amount of water overflowed
the banks of a ditch under the control and management of Truckee-Carson Irrigation District.
As a result of the escaping water the railroad tracks were washed out and this caused the
derailment. Flick, Baber, and Jones, all railroad employees, suffered personal injuries
resulting from the derailment, and Southern Pacific Company suffered property damage.
Flick, Baber, and Jones each filed his own separate suit against Truckee-Carson Irrigation
District and Southern Pacific Company. Southern Pacific cross-claimed against
Truckee-Carson Irrigation District for the damage to its equipment in each action. The three
cases were consolidated for jury trial. The jury in each of its three verdicts found
Truckee-Carson Irrigation District guilty of negligence and found no negligence on the part of
Southern Pacific Company. Flick's verdict against the District was for $30,000, Jones' for
$1,625, Baber's for $1,000, and Southern Pacific's for $10,873.99. A judgment was entered
upon these four verdicts. Appeal No. 4711 is by the District from said judgment. Appeal No.
4727 is by Jones and Baber from that part of the judgment entered in their favor.
Appeal No. 4711
[Headnote 1]
The District asserts that it is a governmental agency and therefore the defense of sovereign
immunity is a bar to any claim against it. This contention is without merit.
The case of In re Walker River Irr. Dist., 44 Nev. 321, 195 P. 327, has fixed the law in this
state that an irrigation district is not a political subdivision of the state.
1

That it is a public corporation, the creature of the Legislature, deriving all its powers,
rights, and franchises from legislative enactment or statutory implication, is not questioned.
* * * It possesses and can exercise such powers only as are expressly conferred by the law of
its creation, or such as are necessary to the exercise of its corporate powers, the performance
of its corporate duties and the accomplishment of the purposes for which it was created. * * *
It has no political function. It does not encroach upon any department of the state, county, or
township government. * * * The district is not established for political or governmental
purposes * * *.
If a county, which is a political subdivision, cannot assert the doctrine of sovereign
immunity as a defense to a tort action, Rice v. Clark County, 79 Nev. 253, 382 P.2d 605, a
fortiori an irrigation district, which is not a political subdivision of the state, cannot assert
such a defense. Cf. Taylor v. Roosevelt Irr. Dist., 72 Ariz. 160, 232 P.2d 107, wherein the
hybrid character of irrigation districts is discussed and tort liability approved.
Appellant contends that the court erred in giving the following instructions:
Instruction No. 5:
The term agent' is a broader term than either servant' or employee.' For the purposes of
this trial, a servant or an employee is an agent, but one may be an agent, although he is neither
servant nor employee.
Instruction No. 6:
It is established that M. B. Williams, who was operating the system involved in the
accident in question, was acting as agent for the defendant, Truckee-Carson Irrigation
District, and within the scope of his authority at the time of the events out of which the
accident occurred.
____________________

1
True it is the question of sovereign immunity did not arise in that case. However, the nature of an irrigation
district was definitely in issue.
was acting as agent for the defendant, Truckee-Carson Irrigation District, and within the
scope of his authority at the time of the events out of which the accident occurred. Therefore,
the acts and omissions of that agent were, in contemplation of law, the acts and omissions,
respectively, of his principal, the defendant, Truckee-Carson Irrigation District.
[Headnote 2]
It was Williams who, at 8:00 P.M., on August 4, 1960, opened the lateral gate which
allowed the water to run through the ditch. He acted with the permission of Greenfield, the
ditch tender in the District, who was an acknowledged agent of the District. Williams allowed
too much water to escape, considering the condition of the ditch. Greenfield had the duty to
supervise the amount of water running into the ditch and to clean the weeds, rubbish, and
debris from the ditches and canals before turning or authorizing the turning of water into
them. It was the admitted duty of the District to see that the water was safely and properly
distributed to the users through the irrigation system. Greenfield testified that it was common
practice to allow the users to open and close water gates, but even when such permission was
given it was still his responsibility to see that the water was safely and properly distributed to
the users through the irrigation system. Under these circumstances whether Williams, in
operating the irrigation system involved in the accident in question, was acting as an agent
for the District or not is immaterial. The responsibility rested on the District, and its duties in
connection therewith clearly were breached. The giving therefor of Instructions 5 and 6 if
error was, under the circumstances, harmless.
The court's refusal to give appellant's requested instruction concerning unavoidable
accident is assigned as error.
[Headnotes 3, 4]
It is not reversible error to refuse to give an unavoidable accident instruction where the
substance of it is covered by other instructions. Annot., 65 A.L.R.2d 136 (1959); cf. Duran v.
Mueller, 79 Nev. 453, 386 P.2d 733.
The jury was fully instructed as to negligence, proximate cause, and burden of proof. It also
was instructed that the mere fact that an accident happened, considered alone, does not
support an inference that some party, or any party, to the accident was negligent. We find no
merit in this assignment.
2

The judgment against the District is affirmed. Respondents herein are awarded costs on
this appeal.
Appeal No. 4727
Baber and Jones have appealed from that part of the judgment entered in their favor on the
ground that the damages awarded to them are inadequate as a matter of law.
[Headnotes 5-7]
Generally, the same tests are applicable in determining whether a verdict is excessive or
inadequate. Oleck, Damages to Persons and Property 153; 15 Am.Jur., Damages 232
(1938). In determining whether damages are excessive the test in this state is whether the
judicial conscience is shocked by the award. Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824.
Jones suffered an injury to his left knee. Although no serious damage resulted, he does
experience and may continue to experience occasional aching in the knee. He missed three
days of work. Baber suffered two fractured ribs and bruises and was out of work for thirty
days. Aside from the pay loss for the workdays missed, neither suffered any special damages.
Applying the Miller v. Schnitzer test here, we conclude that the awards do not shock the
judicial conscience. We therefore are not called upon to determine what power this court has,
if any, to correct an inadequate award.
The judgment in favor of Baber and Jones is affirmed. Respondent herein is awarded costs
on this appeal.
____________________

2
For an interesting discussion of the unavoidable accident instruction see 28 Nevada State Bar Journal, No.
1, p. 44.
____________
80 Nev. 269, 269 (1964) King v. State
NATHAN CRAWFORD KING, Appellant, v. THE
No. 4632
May 20, 1964 392 P.2d 310
Appeal from judgment of the Eighth Judicial District Court, Clark County; David Zenoff,
Judge.
Defendant was convicted of first degree murder of his wife. The trial court entered
judgment, and the defendant appealed. The Supreme Court, Thompson, J., held that where it
was shown that there was only one telephone connection to defendant's apartment, and that it
was a one party line, and defendant in his authenticated statement, which was admitted in
evidence, admitted that he remembered his wife calling for help on telephone, and defendant
testified that only he, wife, and small baby were in apartment when telephone calls were
made therefrom, telephone operator was properly permitted to testify that she answered
telephone and heard unidentified woman's voice call for help, and that in background she
heard voice of unidentified man say that telephone should be put down because it was too
late, and that about 15 minutes later she heard man, who identified himself as defendant,
advise police that he had just killed wife, and jury could consider man's background statement
as probative evidence of defendant's willful, deliberate, and premeditated killing.
Judgment affirmed.
William R. Devlin, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, and Edward G. Marshall, District
Attorney, Clark County, for Respondent.
1. Criminal Law.
Generally, in order for telephone conversation to be admissible in evidence, identity of person on other
end of telephone line must be established, but positive voice identification is not required, and
identification may be satisfactorily shown by circumstantial evidence.
80 Nev. 269, 270 (1964) King v. State
2. Criminal Law.
Telephone operator was properly permitted to testify in murder prosecution that she answered telephone
from defendant's apartment and heard unidentified woman's voice call for help, and that she heard voice of
unidentified man say in background that telephone should be put down because it was too late, and that
about 15 minutes later she heard man, who identified himself as defendant, advise police that he had just
killed wife, and jury could consider background statement as probative evidence of defendant's willful,
deliberate, and premeditated killing.
3. Homicide.
Question whether intoxication of accused is so gross as to preclude capacity intentionally to kill is
normally fact issue for jury to resolve. NRS 193.220.
4. Homicide.
Evidence that defendant was intoxicated at time of killing of his wife did not preclude finding that killing
was willful, deliberate, and premeditated. NRS 193.220.
OPINION
In the early morning of May 2, 1962, Nathan King shot and killed his wife. The homicide
occurred in their apartment at 2535 Carroll, North Las Vegas. A jury convicted him of first
degree murder and directed his punishment to be life imprisonment with the possibility of
parole. NRS 200.030 (4). Judgment and sentence were duly entered. He appeals.
The main contention is that the jury's conclusion of a willful, deliberate and premeditated
killing, viz., first degree murder, can only find support in an inadmissible telephone statement
overheard, and related in court, by an operator of the Southern Nevada Telephone Company.
He challenges the admissibility of the telephone operator's testimony on the ground that the
identity of the voices which she overheard was not satisfactorily established. The operator
was permitted to testify that at 2:40 a.m., May 2, 1962, she answered the telephone and heard
an unidentified woman's voice say, Help, help, I need help. As it was an emergency call, the
operator kept the line open. A few moments later the unidentified woman's voice came back
on the line and repeated, Help, help. I need help."
80 Nev. 269, 271 (1964) King v. State
need help. In the background she also heard an unidentified man's voice state, Put that
phone down, it's too late now. At 2:55 a.m. (the trunk line was still open) she heard a man,
who identified himself as Nathan King, advise the police that he had just killed his wife.
Before the operator testified the state had shown that there was only one telephone
connection to the King apartment at 2535 Carroll; that it was a one party line. In addition, an
authenticated statement of Nathan King had been received in evidence in which he stated,
inter alia, I remember my wife calling for help on the phone and I remember taking the
phone away from her hand. When the police arrived at the homicide scene the telephone was
off the hook. When King took the stand he testified that only he, his wife and their small baby
were in the apartment when the telephone calls were made.
[Headnotes 1, 2]
In general terms it is true that, in order for a telephone conversation to be admissible in
evidence, the identity of the party on the other end of the line must be established. However,
positive voice identification by the hearer is not required. The identification may be
satisfactorily shown by circumstantial evidence. State v. Kladis, 172 Kan. 38, 238 P.2d 522;
State v. Gardner, 227 N.C. 37, 40 S.E.2d 415; 7 Wigmore on Evidence, 3d ed., 2155;
Annots., 71 A.L.R. 5, 105 A.L.R. 326. Though the telephone operator could not identify the
background voice saying, Put that phone down, it's too late now, the evidence received
compels the conclusion that the woman's voice was the decedent's, and the man's that of
Nathan King. We hold that the trial court properly received the telephone operator's
testimony, and that the jury could consider the man's background statement as probative of a
willful, deliberate and premeditated killing.
[Headnotes 3, 4]
The appellant also contends that his proven intoxication at the time of the homicide
precludes, as a matter of law, a finding that the killing was willful, deliberate and
premeditated. It is true that he had been drinking heavily before the homicide. His blood
alcohol about two hours after the killing was .21.
80 Nev. 269, 272 (1964) King v. State
hours after the killing was .21. However, when he telephoned the police shortly after the
slaying he was coherent and clear. Whether one's intoxication is so gross as to preclude a
capacity intentionally to kill is normally a fact issue for the jury to resolve. State v. Jukich, 49
Nev. 217, 242 P. 590. The expert witnesses were not able to testify that King lacked the
capacity to premeditate and deliberately kill because of his intoxication. The jury was advised
that the fact of King's intoxication might be taken into consideration in determining intent.
NRS 193.220. We assume that the jury did so. The appellant's claim in this regard is without
merit.
Affirmed.
____________
80 Nev. 272, 272 (1964) Dearth v. Robinson
FRED DEARTH, dba DEARTH CONSTRUCTION,
Appellant, v. ROBERT ROBINSON, Respondent.
No. 4712
May 25, 1964 392 P.2d 512
Subcontractor brought action against a landowner to foreclose labor and material liens.
The trial court entered judgment adverse to the subcontractor, and the subcontractor appealed.
The Supreme Court, Badt, C. J., held that where subcontractor did excavation work for
several fallout shelters of several landowners, and one landowner made a payment to general
contractor, and general contractor made payments to subcontractor, and there was no showing
by subcontractor that payments received from general contractor were allocated to any
particular jobs, subcontractor was not entitled to foreclose labor and material liens on land of
landowner who had made payment to general contractor.
Affirmed.
Paul L. Larsen, of Las Vegas, for Appellant.
John Spann, of Las Vegas, for Respondent.
Mechanics' Liens.
Where subcontractor did excavation work for several fallout shelters of several landowners, and one
landowner made a payment to general contractor, and general contractor made payments to subcontractor,
and there was no showing by subcontractor that payments received from general contractor were allocated
to any particular jobs, subcontractor was not entitled to foreclose labor and material liens on land of
landowner who had made payment to general contractor.
OPINION
Appellant's theory is that this appeal presents this single, simple issue involving
relationships between an owner, a general contractor, and a subcontractor, namely: Absent
any agreement by the subcontractor (here the lien claimant and appellant) receiving payment
from the general contractor that he will apply the same to a particular owner's account, and
absent any knowledge by the subcontractor of the source of payment made to the general
contractor, the subcontractor may apply the payment received by him to his general account
with the general contractor, and may sue and recover against the landowner for the labor and
materials furnished, as reflected by his business records of account. Appellant lien claimant
asserts that the violation by the court below of such well-recognized rule in entering judgment
in favor of the landowner requires a reversal.
However, the confusing facts disclosed by the record and the absence of proof as disclosed
by the record fail to present a factual situation into which the asserted principle of law can be
made to fit.
Appellant's original complaint in the court below named as defendants Robert Robinson
(respondent here) and also William Elwell, Walter Shaner and his wife, and Gerald Swaney
and his wife for the foreclosure of separate labor and material liens upon separate parcels of
property owned, respectively, by the first parties.1 The learned trial judge stated in the
beginning of his written decision "that all claims of the plaintiff against the defendants,
save and except that [against] Robert Robison, were settled prior to trial."
property owned, respectively, by the first parties.
1
The learned trial judge stated in the
beginning of his written decision that all claims of the plaintiff against the defendants, save
and except that [against] Robert Robison, were settled prior to trial. All parties appear to
accept such statement, though its basis is dehors the record. In any event, the judgment is
against the plaintiff and in favor of Robinson for costs and attorney fee, and Dearth is the sole
appellant from that judgment.
We proceed to the confusing salutation presented by the record.
Fallout Shelters, Inc., represented by its president, one Henthorn, contracted with sundry
owners, including Robinson, to do the necessary excavation work and to furnish fallout
shelters to placed therein. All the parties agree to regard Fallout as the general contractor and
Dearth as subcontractor for such work, and refer to them by such designations. However,
Fallout did not possess a Nevada contractor's license as required by NRS Chapter 624. It
seems, however, that the state contractors' board encouraged a situation wherein Fallout could
enter into contracts to supply fallout shelters but could procure licensed contractors to do the
work.
2
Dearth's complaint alleges that he is a duly licensed general contractor and that he
entered into a written contract with Robinson to furnish excavating work and equipment to
perform same, and actually did furnish and deliver the necessary labor and materials to
Robinson's premises, all at the special instance and request of Robinson, the owner, and that
the balance due and owing after deducting all just credits and offsets was the sum of $793.74,
all of which remained unpaid; that within 90 days after the completion of the work he had
recorded his verified claim and notice of lien and served a copy on Robinson. The asserted
written contract between Dearth and Robinson was not in evidence. Dearth testified that his
agreement "was to get paid every week from Henthorn," and that such agreement had
been made with Henthorn.
____________________

1
It does not appear from the record that this patent misjoinder of the parties was attacked in the trial court.

2
This is the situation presented by the parties. No member or agent of the state contractor's board was called
to explain or discuss the situation.
agreement was to get paid every week from Henthorn, and that such agreement had been
made with Henthorn. This involved the excavation of a number of fallout shelters, not only
for the additional three sets of defendants mentioned in the original complaint but later
dropped, but for sundry persons in addition. For a time Henthorn made the weekly payments
as agreed, upon the submission by Dearth of his billings.
Apparently, however, he became extended financially and started falling behind on the
weekly payments. Henthorn had been obtaining the money from the sundry owners with
which to make the payments, but Dearth had no knowledge of the source of these moneys.
Mrs. Dearth kept the books for her husband. The only records which she kept, and from
which she testified were the time cards submitted by the laborers and checked and approved
by Mr. or Mrs. Dearth, together with a list of the laborers showing the nature of their work,
the equipment used and the hours worked, together with a single yellow sheet showing when
the work started and when it stopped on the Swaney, Lecker, Jenks, Elwell, Shaner, and
Robinson jobs, with the charges, payments, and extended balances.
On each of these jobs the recorded notice of lien was introduced in evidence. In each of
said liens, including the Robinson lien, it is stated that all the materials were furnished
pursuant to the contract with the owner and authorization from said owner and Fallout
Shelters, Inc. She referred to the yellow sheet as her breakdown on six jobs for Fallout
Shelters, including the Robinson job. As to the payments made by Henthorn, she testified that
Henthorn paid $560 on December 27 which was for past billing. That is all. He paid us
12/15/[61] credited to Doctor Lockwood for $863.00 that time and he had a balance then of
$3,799.26. * * * He gave us a check for a thousand dollars, December 1st, [1961] * * * and
then he gave us a petty check for $125.00. * * * We were billed for this work that was done
which would possibly be partially on one job and partially on another job * * *. He did not
designate any job he was paying for. He was just paying partial billings. I would deposit the
payment and it would go toward paying the payroll.
the payment and it would go toward paying the payroll. * * * We took the moneys and paid it
to prior billings as it came in, the first job done was paid first. The record indicated that the
Robinson job and one other job had the earliest recording as to commencement of work. With
the further testimony that no payments were credited to the Robinson job, the court in
desperation took charge of the examination in order to find out the true situation as to how
the money was applied. It simply brought out the repeated statements that the moneys paid to
Dearth were credited to the first billing.
Again and again the court sought to make sense out of the testimony. By the Court: Now,
the only other thing that bothers me is whether or not Mr. Robinson paid anything to Fallout
Shelters or what contribution the Fallout Shelters made to the Plaintiff and why wasn't the
money pro-rated. There must be some correlation here. This is the only explanation I would
like would be why wasn't the money that was paid by Mr. Robinson to Fallout and by Fallout,
pro-rated to these jobs?
The only answer was that the first billings were the first credited, first in, first paid. But
the billings were in weekly billings for the labor as it was performed, and no work antedated
that of the Robinson job. Counsel for Dearth stated to the court: We could go more
particularly into that in proving, if your Honor, please. The court indicated that such was the
proof it wanted, but it was never forthcoming. Plaintiff's counsel insisted that there was no
duty to pro-rate, to which the court replied: That's something you're going to have to show
me. That could be a legal question. It would be true on an open account but here you're
claiming lien rights and it may be that the Defendant here is entitled to some benefits from
what he's paid here and especially from what Henthorn paid out of the moneys that Robinson
gave him.
When Dearth, on cross-examination, admitted that he had no agreement as to price with
Robinson, plaintiff asked leave to amend his complaint to conform to the evidence to the
effect that Dearth contracted "with Fallout Shelters, Inc., as agent for defendant Robert
Robinson."
evidence to the effect that Dearth contracted with Fallout Shelters, Inc., as agent for
defendant Robert Robinson. The court said that this did not concern it, as the owner would
still be bound to pay the subcontractor and that [t]he only thing that distresses me is the
method of accounting. That's all that bothers me, the method of accounting. At this point the
evidence would show that Dearth performed services for the reasonable value of $793.74.
The only question is, did he receive any money for it. That to me is the problem * * *.
Plaintiff closed his case without ever resolving this problem. Defendant called Henthorn,
president of Fallout Shelters, Inc., who produced a billing dated November 30, 1961, and
stated that there were quite a few billings prior to November 30, 1961. Again it must be
remembered that the Robinson job was started November 11, 1961.
Robinson had on November 24, 1961, made a payment to Henthorn of $1,125.00.
Henthorn had on November 28 made a payment to Dearth of $200.00, and on December 1,
1961, $1,000.00. The entire balance unpaid by Henthorn to Dearth amounted to several
thousand dollars. Dearth insisted that the entire balance due on the Robinson job was
$793.74, and filed his lien claiming such sum.
With Dearth's insistence that no sums were paid on the Robinson job as contrasted with
Mrs. Dearth's statements and Dearth's statements that all payments were credited to prior
billings, and with the evidence that no jobs antedated the Robinson billings, with no proof
that Henthorn in making payments indicated to which account they were to be credited, and
with no showing that Dearth had made any particular allocation outside of the claim that the
payments were devoted to the first billings, and in the light of a complete lack of showing
by Dearth as to any definite records on the point, full support is found for the following
statement in the court's decision: It cannot be said that the money that the defendant
Robinson gave to the general contractor was not paid to the plaintiff upon at least a portion of
the work that was done by the plaintiff for the defendant.
the work that was done by the plaintiff for the defendant. It seems axiomatic to the Court that
meticulous books should be kept to determine what jobs were paid for and what jobs were
not. In other words, one cannot say that because he has done work on ten properties for a
general contractor, that the general contractor is indebted to him for x' dollars; that being the
balance of the money owed for all of the work performed and then say because there is a
balance due, he will charge his lien to one of the parties. In other words, the court was
simply saying that Dearth had not made out a case. With this we agree. We can perceive no
undue hardship upon lien claimants by requiring them to keep appropriate records in support
of their claims of lien.
This being so, it is unnecessary to discuss situations whereunder a creditor applies a
payment to a particular account where the debtor making the payment does not specify to
which account it must be applied. See Bailey v. Neagle, 54 Nev. 257, 13 P.2d 634. Nor under
the lack of proof as noted above was the court required to make application to the oldest debt.
See Biel v. Godwin, 69 Nev. 189, 245 P.2d 997. Nor need we discuss the division of
authority as to Robinson's right, in his payments to Fallout, to control the application of
payments made by Fallout to Dearth. Nor need we discuss the right of Dearth to apply the
funds to satisfy other debts due him from Fallout, in the absence of Dearth's knowledge of the
source of the funds, as discussed in the annotations found in 41 A.L.R. 1297, 130 A.L.R. 198,
and 166 A.L.R. 641. Nor is the situation altered by reason of the fact that Robinson could
have protected himself by requiring a performance bond from Fallout, or by making his
payments to Fallout by a joint check payable to Fallout and Dearth. The same lack of
conviction found by the trial court in the presentation of the proofs is echoed in the briefs
filed in this court on appeal.
____________
80 Nev. 279, 279 (1964) Victoria v. Young
NILA VICTORIA, Appellant, v. C. W. YOUNG,
SHERIFF OF WASHOE COUNTY, Respondent.
No. 4731
May 26, 1964 392 P.2d 509
Appeal from the Second Judicial District Court; Washoe County, John W. Barrett, Judge.
Habeas corpus proceeding. From an order of the lower court, the petitioner appealed. The
Supreme Court, McNamee, J., held, inter alia, that regardless of fact that for some period of
time prior to order of commitment accused might have been unlawfully detained of his liberty
subsequent preliminary examination and commitment did not become illegal because of
previous wrongful detention so as to be entitled to release on habeas corpus.
Affirmed.
Jerry Carr Whitehead, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Herbert F.
Ahlswede, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Upon completion of a preliminary hearing wherein magistrate orders an accused held to answer charge
contained in complaint and orders him committed, the accused thereafter is legally detained in custody.
NRS 171.300, subd. 1, 171.370, 171.380.
2. Habeas Corpus.
An order of commitment of an accused to answer charge in complaint is a process within statute
providing that when it appears on return of writ of habeas corpus that prisoner is in custody by virtue of
process prisoner may nevertheless be discharged if by some subsequent act he becomes entitled to be
discharged. NRS 34.500.
3. Habeas Corpus.
Regardless of fact that for some period of time prior to order of commitment accused might have been
unlawfully detained of his liberty subsequent preliminary examination and commitment did not become
illegal because of previous wrongful detention so as to be entitled to release on habeas corpus. NRS
34.500, 171.300, subd. 1, 171.370, 171.380, 178.495.
4. Habeas Corpus.
While writ of habeas corpus would be available during period of illegal detention it will not issue once
detention becomes legal. NRS 34.500.
5. Habeas Corpus.
Accused was not entitled to habeas corpus on ground that he was entitled to counsel at his preliminary
hearing on theory that such hearing is a critical stage of procedure leading to trial because testimony taken
there may be used by either party on trial when personal attendance of any witness cannot be had in court
since until such testimony is received in evidence at trial, accused cannot claim prejudice. NRS 7.260,
171.405, subd. 10, 172.320, subd. 3, 172.330, 174.120.
OPINION
On November 15, 1963 appellant was arrested by the Reno City Police Department. On
November 27, 1963 a criminal complaint charging him with forging the handwriting of one
Gardner to a $10 traveler's check was filed in the Justice's Court of Reno Township, at which
time a warrant of arrest issued, and he was taken before a magistrate for arraignment. His
preliminary hearing was held January 13, 1964 and on that day he was bound over to the
District Court to answer upon a charge of forgery. On January 20, 1964 an information was
filed against him in the District Court charging him with the said forgery. He was brought
before the District Court on January 31, 1964, at which time he requested that counsel be
appointed to represent him. Jerry Carr Whitehead was appointed by the court as his counsel
and upon appellant's request arraignment was continued until February 4, 1964. At all times
since November 15, 1963 appellant has been in custody.
On February 3, 1964 appellant filed a petition in the court below for a writ of habeas
corpus upon the ground that he was incarcerated for an excessive period of time before being
brought in front of a magistrate and upon the ground that he was not represented by counsel at
the preliminary hearing. A writ was issued and after a hearing thereon the lower court made
an order quashing the writ upon the ground that appellant's illegal confinement had
already taken place and had ended and that he was then legally held in custody.
the writ upon the ground that appellant's illegal confinement had already taken place and had
ended and that he was then legally held in custody. Appeal is from this order.
As heretofore stated, the petition for habeas corpus was based upon appellant's
incarceration for the 11-day period before he was brought before the magistrate and also upon
the ground that he had no counsel at the preliminary hearing. Although not pleaded, appellant
in the court below stated one more reason why he should be discharged from custody under
the writ of habeas corpus, to wit, the delay of 47 days after the complaint was issued before
his preliminary examination was held.
In his oral argument herein appellant represented to this court that he was concerned only
with the delay from the time of his arrest on November 15, 1963 until the time of his
preliminary hearing on January 13, 1964.
NRS 171.500(1) provides that when an arrest is made without a warrant the person
arrested must, without unnecessary delay, be taken before the nearest or most accessible
magistrate, * * * and a complaint, stating the charge against the person, must be laid before
such magistrate.
When the defendant is brought before the magistrate upon an arrest, NRS 171.370
provides that the magistrate must immediately inform him of the charge against him and of
his right to the aid of counsel. The record shows that this was done.
NRS 171.380 provides: If the defendant requires the aid of counsel, the magistrate must
immediately after the appearance of counsel, or if after waiting a reasonable time therefor
none appears, proceed to examine the case.
[Headnote 1]
Upon completion of a preliminary hearing wherein the magistrate orders an accused held
to answer the charge contained in the complaint and orders him committed, the accused
thereafter is legally detained in custody.
It is appellant's contention however that prior thereto he was not legally detained in
custody because he was not taken before a magistrate until 11 days after his arrest in
violation of NRS 171.300{1), and because his preliminary hearing was not held until 47
days after his arraignment before the magistrate in violation of NRS 171.3S0.
not taken before a magistrate until 11 days after his arrest in violation of NRS 171.300(1),
and because his preliminary hearing was not held until 47 days after his arraignment before
the magistrate in violation of NRS 171.380.
[Headnote 2]
NRS 34.500 provides that when it appears on the return of the writ of habeas corpus that
the prisoner is in custody by virtue of process from any court of this state (the said order of
commitment is a process within the meaning of this statute
1
), such prisoner nevertheless
may be discharged [w]hen the imprisonment was at first lawful, yet by some act, omission or
event, which has taken place afterwards, the party has become entitled to be discharged.
Appellant concedes that upon his initial arrest his imprisonment was lawful.
While it may be true that during the 11-day period from the time of his arrest to the time
he was taken before the magistrate his imprisonment at first lawful became unlawful because
of unnecessary delay, and again became unlawful sometime during the period after his
arraignment in the Justice's Court and before his preliminary hearing it does not follow that
his imprisonment after the order of commitment is also unlawful.
As heretofore stated, the order of commitment was dated January 13, 1964 and on January
20, 1964 the information was filed against him in the District Court. Appellant does not
complain of this delay of seven days in filing the information.
The District Attorney was required by NRS 178.495 to bring the defendant to trial within
the 60-day period following January 20, 1964, the date the information was filed. That period
had not expired when the petition for a writ of habeas corpus was filed in the lower court nor
had it expired on February 14, 1964 when a hearing was had upon the writ.
[Headnotes 3, 4]
We have concluded that regardless of the fact that for some periods of time prior to the
order of commitment the appellant might have been unlawfully detained of his liberty the
subsequent preliminary examination and commitment do not become illegal because of
the previous wrongful detention.
____________________

1
See LaVergne v. Fogliani, 76 Nev. 431, 357 P.2d 116.
some periods of time prior to the order of commitment the appellant might have been
unlawfully detained of his liberty the subsequent preliminary examination and commitment
do not become illegal because of the previous wrongful detention. United States v. Mitchell,
322 U.S. 65; cf. State v. Maldonado, 92 Ariz. 70, 373 P.2d 583; cf. Morse v. United States, 5
Cir., 256 F.2d 280. In other words, while a writ of habeas corpus would be available during a
period of illegal detention it will not issue once the detention becomes legal.
2
United States
v. Kenton, 2 Cir., 287 F.2d 534; United States v. Universita, D.C., 192 F.Supp. 154.
Appellant's argument that he has been denied his right to a speedy trial is without merit.
State v. Maldonado, 92 Ariz. 70, 373 P.2d 583.
Appellant contends that he was entitled to counsel at his preliminary hearing.
The record shows that at the time of his arraignment in the Justice's Court, appellant was
advised by the presiding magistrate of his right to counsel at the preliminary hearing which
would follow. It does not appear that appellant at any time requested the aid of counsel. He
appeared at the preliminary hearing without counsel, was informed of the charge against him,
was advised again of his right to counsel, and he was instructed with respect to the procedure.
Three recent decisions of the United States Supreme Court hold that an indigent accused
has the right to have counsel appointed to assist him in his defense.
In Gideon v. Wainwright, 372 U.5. 335, the defendant asked the court to appoint counsel
for him. The request was denied. Gideon was forced to conduct his own defense at the trial.
The court there held that the refusal of a state trial court to appoint counsel for one prosecuted
for a felony violates the United States Constitution. The decision in this case is limited to the
right of an indigent defendant to be represented by counsel at his actual trial.
Hamilton v. Alabama, 368 U.S. 52, was a capital case.
____________________

2
For an unlawful imprisonment an accused has a civil remedy against the wrongdoer. See Lemel v. Smith, 64
Nev. 545, 187 P.2d 169.
It holds that an accused's right to counsel includes the right to the assistance of counsel at any
critical stage of a state's criminal procedure, such as arraignment. It further holds that under
Alabama law an arraignment is a critical stage because in Alabama the law requires the plea
then to be entered.
White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, also was a capital case.
The accused pleaded guilty when arraigned at the preliminary hearing, at which time he was
not yet represented by counsel. At his formal arraignment, he pleaded not guilty. The court
there said: Whatever may be the normal function of the preliminary hearing' under
Maryland law, it was in this case as critical' a stage as arraignment under Alabama law. For
petitioner entered a plea before the magistrate and that plea was taken at a time when he had
no counsel, and was later received in evidence at the trial.
Each of these three cases is distinguishable from the case before us.
In Nevada a preliminary hearing may be waived by an accused. No plea is entered until
after an information is filed in the District Court. Upon an accused's arraignment in the
district court and before entry of plea, he is advised of his right to counsel, and if he desires
and is unable to employ counsel, the court must assign counsel to defend him, NRS 174.120,
at the expense of the county, NRS 7.260. Consequently at his arraignment he will be
represented by counsel if he so desires.
3
Under these circumstances the preliminary hearing
in Nevada is not a critical stage of the state's criminal procedure. An information takes the
place of an indictment, and an accused is not entitled to be present with or without counsel
before the grand jury which finds the indictment. NRS 172.320(3). He is not even entitled to
a transcript of the grand jury proceedings. NRS 172.330.
____________________

3
In the event accused has waived a preliminary hearing his counsel can request a preliminary hearing prior to
trial. Even where there has been a preliminary hearing counsel should make a request for a new preliminary
hearing if his client was prejudiced because of lack of counsel.
[Headnote 5]
Appellant argues that a preliminary hearing is a critical stage of the procedure leading to
the trial of an accused, because testimony taken there may be used by either party on the trial
when the personal attendance of any witness cannot be had in court. NRS 171.405(10). We
are of the opinion that this argument has no merit. Counsel anticipates that he will be
prejudiced at the trial in the event the trial court should receive in evidence any testimony
taken at the preliminary hearing. We do not believe that a trial court would invite such error
in a case where an accused did not have the opportunity to cross-examine witnesses through
counsel. Until such testimony is received in evidence at the trial, appellant cannot claim
prejudice.
Affirmed.
____________
80 Nev. 285, 285 (1964) Thelin v. Intermountain Lumber & Builders Supply
WILLIAM A. THELIN, aka BILL THELIN, dba THELIN LUMBER SALES, Appellant, v.
INTERMOUNTAIN LUMBER AND BUILDERS SUPPLY, INC., Respondent.
No. 4707
May 28, 1964 392 P.2d 626
Appeal from the Eighth Judicial District Court, Clark County; Taylor H. Wines, Judge.
Action wherein plaintiff had attachment issued. From an order of the trial court
discharging the attachment, the plaintiff appealed. The Supreme Court, Badt, C. J., held, inter
alia, that where assignments of accounts suit able were actually pledges or assignments for
purpose of providing collateral security for assignor's notes to assignee, assignor was not the
real party in interest to maintain attachment on such assigned accounts.
Affirmed.
Milton W. Keefer and Cecil Wilbur Lynn, of Las Vegas, for Appellant.
Stanley Pierce and Don L. Griffith, of Las Vegas, for Respondent.
1. Parties.
The word prosecute within rule providing that every action shall be prosecuted in name of real party in
interest includes commencement of suit. NRCP 17(a).
2. Pledges.
Generally, pledgor cannot maintain action on collateral while condition is not performed, and pledgee of
collateral, when condition has not been performed, is the real party of interest to maintain action thereon.
NRCP 17(a).
3. Assignments; Pledges.
The assignee or pledgee is considered to hold the legal interest in thing pledged or assigned, and pledgee
is accountable to pledgor as a trustee of an express trust.
4. Pledges.
Where assignments of accounts receivable were actually pledges or assignments for purpose of providing
collateral security for assignor's notes to assignee, assignor was not the real party in interest to maintain
attachment on such assigned accounts. NRCP 17(a).
5. Pledges.
The assignor of accounts receivable which assignments were actually pledges for purpose of providing
collateral security for assignor's notes to assignee bank was not real party in interest to maintain attachment
because assignee later returned to assignor dishonored checks, where such checks had been sent by
assignor for collection and credited to assignor's account, and when they were dishonored the assignee
simply returned them and charged them back to assignor's account. NRCP 17(a).
6. Assignments.
The subsequent reassignment of accounts receivable to assignor after assignor had filed complaint and
had writ of attachment issued did not relate back to date of filing of complaint so as to make the assignor
the real party in interest since assignor could not recover on cause of action accruing after commencement
of his action. NRCP 17(a).
OPINION
This appeal is from an order of the court below discharging an attachment. The motion to
discharge the attachment was made upon the ground that "the complaint fails to state a
claim against defendant upon which relief can be granted, in that plaintiff is not the real
party in interest."
attachment was made upon the ground that the complaint fails to state a claim against
defendant upon which relief can be granted, in that plaintiff is not the real party in interest.
The order was correct and must be affirmed. A statement of the facts follows. The parties will
be referred to by their abbreviated names.
In January, February, March, April, and May, 1963, Thelin made sundry sales of lumber to
Intermountain. On the occasion of each sale Thelin would assign the invoice, indicating an
account receivable by him, to the bank and Intermountain was notified of such assignment.
Each assignment was worded as follows: For a valuable consideration the undersigned
hereby sells, assigns, transfers and sets over to the United States National Bank of Portland
(Oregon) the foregoing account and the money due thereunder. This was signed by Thelin.
Attached to each invoice thus assigned was Thelin's promissory note to the bank for 75% of
the invoice. The procedure followed was for the bank to credit Thelin's account with the
amount of his promissory note and forward the invoice to Intermountain. The bank would
then collect the assigned account receivable, apply 75% to satisfy Thelin's note to the bank,
and would credit Thelin's account with the balance.
In July numerous accounts remained unpaid, and in addition checks drawn by
Intermountain in favor of the bank were dishonored. Appellant filed his complaint July 24,
1963, for goods sold and delivered in the sum of $62,456.01, and for the further sum of
$23,692.31 represented by three checks for payment of lumber sold by Thelin to
Intermountain between May 23 and July 19, 1963, which checks were returned unpaid. The
complaint alleged that the defendant corporation Intermountain, having its principal place of
business in Las Vegas, Nevada, was indebted as aforesaid, was insolvent or in imminent
danger of insolvency, that a judgment against the corporation would be unavailing if the
defendant were permitted to sell its inventory of lumber, most of which was acquired from
plaintiff and was unpaid for, and that the appointment of a receiver was required to conserve
the assets in defendant's possession, and preserve the interests of plaintiff and other
creditors.
conserve the assets in defendant's possession, and preserve the interests of plaintiff and other
creditors. Summons was issued and served the same day. Writ of attachment was issued July
30, 1963, and an amended writ on August 2, 1963. The first writ was for the security of
plaintiff's demand of $85,148.32 on his original complaint, and the second writ on his
amended complaint which increased the demand to $139,141.61.
On August 13, 1963, the bank re-assigned to appellant the remaining unpaid invoices for
lumber sold by Thelin to Intermountain. Intermountain answered and counterclaimed, and
Thelin answered the counterclaim on August 16, 1963. According to such pleading, Thelin's
claims now totaled $188,051.68. This included the checks drawn by Intermountain in favor of
the United States National Bank of Portland which had been delivered to Thelin and by him
forwarded to the bank. When they were dishonored, the bank recharged them to Thelin's
account.
In Thelin's appeal from the order discharging the attachment, he urges (1) that he was the
real party in interest because he retained a 25% interest in the assigned account; (2) because
the bank had granted to him policing and collecting powers of the accounts; (3) because of
the re-assignment to him of the dishonored checks, and the re-assignment to him on August
13, 1963, by the bank of the uncollected accounts; that by reason of such re-assignments he
became the only party in interest; and (4) that in any event his motion for leave to amend his
complaint to include the United States National Bank of Portland as a party plaintiff should
have been granted.
[Headnote 1]
NRCP 17(a) provides in pertinent part as follows: Every action shall be prosecuted in the
name of the real party in interest * * *. At the oral argument appellant admitted that the use
of the word prosecute includes the commencement of the suit.
From the wording of the assignments of the accounts as noted above such assignments
were absolute on their face, but there seems to be no doubt but that the assignments were
actually pledges, or assignments for the purpose of providing collateral security for
appellant's promissory notes.
face, but there seems to be no doubt but that the assignments were actually pledges, or
assignments for the purpose of providing collateral security for appellant's promissory notes.
Appellant cites texts and certain cases from foreign jurisdictions to indicate that there is a
division of opinion whether under such circumstances the assignor or the assignee is the real
party in interest. It is unnecessary for us to enter into a discussion of such asserted conflicting
views. The rule in this state is clear:
[Headnote 2]
In Winnemucca State Bank & Trust Co. v. Corbeil, 42 Nev. 378, 178 P.23 (1919), the
pledgee of a note for collateral security sued the maker of the note. The trial court dismissed
the action on the ground that the pledgor of the note was the real party in interest. This court
reversed, holding that a pledgee of a note for collateral security is the real party in interest in a
suit on the note citing the predecessor statute of NRCP 17(a). The court stated:
The general rule is that the pledgor cannot maintain an action on the collateral while the
condition is not performed, and the pledge of a collateral, where the condition has not been
performed, is held to be the party in interest to maintain an action thereon.
* * * * *
The rights of the [pledgor] are not concurrent with those of the [pledgee]. They are
subordinate. The [pledgor] has nothing to get from the note until the [pledgee's] claim be
entirely satisfied. By its endorsement and delivery of the note it substituted the [pledgee] in
its place to demand and receive payment of the note. Surely it had no right to demand
anything from the [pledgee]. How, then, had it any real interest in the note at the
commencement of the action? It is true it had an interest in what the [pledgee] might collect,
but that is a different thing from an interest in the note itself.
[Headnote 3]
The Supreme Court of Washington in Hodge v. Truax, 184 Wash. 360, 51 P.2d 357, cites
the Winnemucca Bank case with approval.
case with approval. In accord is 3 Moore, Federal Practice 1343 (2d ed.). In Castleman v.
Redford, 61 Nev. 259, 124 P.2d 293, this court held that the assignee or pledgee is considered
to hold the legal interest in the thing pledged or assigned, and the pledgee is accountable to
the pledgor as a trustee of an express trust. Carpenter v. Johnson, 1 Nev. 331.
[Headnote 4]
On reason and authority the instant case is governed by Winnemucca State Bank & Trust
Co. v. Corbeil, supra.
See Annot. 65 A.L.R. 1321 for some of the generally recognized exceptions to the rule that
only the pledgee may sue. None of such exceptions applies here.
[Headnote 5]
Appellant's contention that the later return of the dishonored checks to him indicates him
as the real party in interest is without merit. They had been sent by Thelin to the bank for
collection and credited to his account. When they were dishonored the bank simply returned
them and charged them back to his account.
Appellant's constant reiteration that he retained a 25% interest in the assigned accounts is
simply not borne out by the facts. He simply had an interest in the proceeds of the collection.
See Carpenter v. Johnson, supra.
[Headnote 6]
Nor is there merit to appellant's contention that the subsequent re-assignment of the
accounts by the bank to Thelin after the filing of the complaint and the issuance of the writ of
attachment, related back to the date of the filing of the complaint. In Read v. Buffum, 79 Cal.
77, 21 P. 555, the action was brought by the assignee of the original corporate obligee, the
California Powder Works. The assignment was executed by the secretary of the corporation,
who was however not shown to have had any power to make it. The assignment was ratified
by the board of directors of the corporation after the commencement of the action. The court
said: The ratification of the board of directors was not given until after the commencement
of the action,too late to avail the plaintiff anything, as he could not recover for a cause
of action accruing after he commenced his action."
after the commencement of the action,too late to avail the plaintiff anything, as he could
not recover for a cause of action accruing after he commenced his action.
Respondent's motion to discharge the attachment was coupled with a motion to dismiss the
complaint. The trial court apparently took no action on the motion to dismiss, and nothing
growing out of such motion is before us.
From the foregoing we are satisfied that at the time the attachment issued appellant had no
valid claim to support the attachment. Accordingly, the order discharging the attachment was
proper and is hereby affirmed with costs.
____________
80 Nev. 291, 291 (1964) Kuk v. State
JEROME KUK, Appellant, v. STATE
OF NEVADA, Respondent.
No. 4693
June 2, 1964 392 P.2d 630
Marshall, Judge.
Defendant was convicted in the trial court of first degree murder and he appealed. The
Supreme Court, Thompson, J., held that instructing jury about consequences of verdict of not
guilty by reason of insanity was not improper.
Judgment affirmed.
[Rehearing denied July 6, 1964]
Springer & Newton, of Reno, for Appellant.
Harvey Dickerson, Attorney General, of Carson City; Edward G. Marshall, District
Attorney, Clark County, and Melvin D. Close, Jr., Deputy District Attorney, of Las Vegas, for
Respondent.
80 Nev. 291, 292 (1964) Kuk v. State
1. Homicide.
Evidence sustained conviction for first degree murder.
2. Criminal Law.
Supreme Court's appellate jurisdiction in criminal cases is limited to questions of law alone. Const. art.
6, 4.
3. Homicide.
Whether accused in homicide case had been animated by malice, express or implied in shooting of
decedent was jury question. NRS 200.020.
4. Homicide.
Whether defendant's voluntary intoxication so beclouded his mind as to require reduction in degree of
crime from first degree murder was jury question.
5. Homicide.
Whether defendant's mental affliction was so pronounced as to constitute legal insanity was jury question
in homicide case. NRS 178.400.
6. Criminal Law.
It must be assumed that jurors in homicide case, or any of them, would have answered court's inquiry as
to whether they had read news article affirmatively, had article been read by them.
7. Criminal Law.
Defendant was not entitled to reversal of conviction on basis that fairness of trial was affected by news
article appearing while trial was in progress, where there was no proof that any of jurors had read article.
8. Criminal Law.
Failure to instruct on self-defense was not improper, where no request was made therefor.
9. Criminal Law.
Particular instruction on circumstantial evidence was not required to be given where court instructed jury
as to distinction between direct and circumstantial evidence.
10. Criminal Law.
Further instruction on subject of circumstantial evidence was not required, where defendant made many
admissions that he had killed victim.
11. Criminal Law.
Legal test of insanity is the right and wrong test. NRS 178.400.
12. Criminal Law.
Where jury was correctly instructed about the right and wrong test of insanity and Its meaning, additional
instruction dealing particularly with concept of insane delusion as precluding criminal responsibility was
not required. NRS 178.400.
13. Criminal Law.
To establish defense on ground of insanity, it must be clearly proved that at time of committing act
defendant was laboring under such defect of reason, from disease of the mind, as not to know nature and
quality of act he was doing, or, if he did know it, that he did not know he was doing what
was wrong.
80 Nev. 291, 293 (1964) Kuk v. State
did know it, that he did not know he was doing what was wrong. NRS 178.400.
14. Criminal Law.
Verdict of not guilty by reason of insanity means neither freedom nor punishment but means that accused
will be confined in hospital for mentally ill until he has recovered his sanity and will not, in reasonable
future, be dangerous to himself or to others. NRS 175.445, 178.400.
15. Criminal Law.
Propriety of giving instruction informing jury of consequences of verdict of not guilty by reason of
insanity should not depend upon whether defendant wants it. NRS 178.400.
16. Criminal Law.
All written instructions given in criminal case are deemed excepted to, and any error regarding them may
be reviewed on appeal. NRS 175.515.
17. Criminal Law.
Merit of instruction on criminal case must be determined by reference to that instruction and others, if
any, given upon same subject and defendant's right to question its propriety is preserved by statute and
need not be especially asserted in trial court. NRS 175.515.
18. Criminal Law.
Instructing jury about consequences of verdict of not guilty by reason of insanity was not improper. NRS
178.400.
19. Criminal Law.
Statement of prosecutor in closing argument implying that if defendant were found not guilty because of
insanity he would shortly be released from hospital thereby inviting jury to base its decision as to
innocence or guilt upon that consideration rather than upon evidence did not, in absence of objection and
under entire record, affect substantial rights of accused. NRS 169.110, 178.400.
20. Criminal Law.
Questioning of witnesses about a urethral discharge of which notation had been made in military medical
record of defendant accused of murder was not basis for reversal, where defendant had introduced record
into evidence and no objection had been made to prosecutor's later questions.
OPINION
During the afternoon of October 18, 1958, at the Kuk home in Boulder City, Jerome Kuk
killed Steve Bowman by firing four bullets into his body. Kuk admitted the homicide, and
only he witnessed the slaying. When apprehended he was standing over the corpse with a .
80 Nev. 291, 294 (1964) Kuk v. State
.38 special caliber Colt revolver in his hand and said to the officer, If he moves, I'll shoot
him again. The fatal bullets were fired from that revolver. Earlier on the same day Kuk had
shot at a moving car. A bullet struck a boy in the car. The boy died a few days later. Kuk had
been drinking before the shooting episodes, and was under the influence of alcohol. Four and
one-half hours after slaying Bowman, a chemical analysis of Kuk's blood revealed an alcohol
content of .20. The record does not show that he had ingested alcohol after shooting Bowman.
Yet, soon after the slaying, his speech was coherent and his gait steady. He telephoned the
police and reported the occurrence. His conduct immediately following the slaying, in some
respects, was strange. He handcuffed the decedent. When the officer arrived and asked Kuk to
surrender the gun, Kuk turned toward him and said, I'll kill you, and placed the gun against
the officer's stomach, and then released it and it fell to the floor. As the officer attempted to
retrieve it, Kuk elbowed him, knocking him three or four feet away. Kuk then picked up the
gun and gave it to the officer.
While in custody at the Boulder City police station Kuk was questioned on three separate
occasions. The first interrogation was at 5:30 p.m. on October 18. Among other things Kuk
said, I killed the man because he was possessing narcotics and a firearm. I was protecting my
own life. That interrogation was discontinued because Kuk was not clear in his responses.
An hour and a half later he was again questioned. He said the decedent was a user; that he
did not know his name; that the decedent was hot and a murderer; that the decedent shot at
me first, then I shot him dead. On the next day, October 19, 1958, Kuk, when questioned,
related a different story. He had been sleeping. When he awakened, Bowman was standing in
front of him and said, I'll kill you. Kuk walked into his bedroom, got his pistol, and shot
Bowman. He stated that he had never seen nor heard of Bowman before.
On November 12, 1958, a criminal complaint was filed, charging Kuk with the murder of
Bowman. A preliminary hearing was held December 4, 1958, and Kuk was held to answer in
the district court.
80 Nev. 291, 295 (1964) Kuk v. State
Kuk was held to answer in the district court. An information was then filed. In March of 1959
the court committed Kuk to the Nevada State Hospital. He had been found to be insane in the
sense that he could not properly stand trial. Through treatment Kuk's sanity was restored to
the point where he could proceed with trial and, finally, on June 25, 1962, trial commenced.
Kuk's defense was that criminal responsibility was precluded by reason of insanity. NRS
178.400.
In addition to the facts already related, some of the evidence introduced at the trial
established that Bowman was unarmed. Before the slaying he and Kuk were seen in the living
room. Bowman was seated on the end of a couch. He held a drinking glass. Kuk, who was
also seated, held a drinking glass in his left hand and the revolver in his right. He told the
observer to get the hell out of here and the observer left. The autopsy revealed Bowman to
be of middle age, muscular, and weighing about 200 pounds. Kuk was 6 feet 6 inches tall and
weighed about 235 pounds. As to insanity, all of the expert witnesses agreed that Kuk was
medically ill when he killed Bowman. The state's witnesses, however, testified positively that
Kuk was legally sane; that he knew the nature and quality of his act and that he knew he was
doing what was wrong. The defense experts disagreed, testifying that Kuk was legally insane.
The jury found Kuk guilty of first degree murder and fixed his punishment at life
imprisonment without the possibility of parole. Judgment and sentence were duly entered.
Kuk appeals.
[Headnotes 1-5]
Though urged to do so, we perceive no basis for voiding the jury verdict on the ground that
the evidence is insufficient. Our appellate jurisdiction in criminal cases is limited to questions
of law alone. Nev. Const. Art. 6, 4; State v. Fitch, 65 Nev. 668, 200 P.2d 991. It was
permissible for the jury to find a willful, deliberate and premeditated killing. Four bullets
were fired into Bowman, and Kuk said, If he moves, I'll shoot him again. Such evidence
alone warrants an inference that, before the first shot was fired, Kuk had formed a
deliberate design to kill Bowman.
80 Nev. 291, 296 (1964) Kuk v. State
the first shot was fired, Kuk had formed a deliberate design to kill Bowman. State v.
Loveless, 62 Nev. 312, 150 P.2d 1015; Pinana v. State, 76 Nev. 274, 352 P.2d 824. Similarly
it was the province of the jury to determine whether Kuk was animated by malice, express or
implied. NRS 200.020; State v. Acosta, 49 Nev. 184, 242 P. 316. Nor may we rule, as a
matter of law, that Kuk's voluntary intoxication so beclouded his mind as to require a
reduction in the degree of the crime. The observation of Kuk by some of the witnesses who
saw him shortly before and soon after the slaying, and who testified to his speech, demeanor
and movement, would allow the jury to conclude that Kuk had the capacity deliberately to
kill. State v. Jukich, 49 Nev. 217, 242 P. 590; King v. State, 80 Nev. 269, 392 P.2d 310; State
v. Butner, 66 Nev. 127, 206 P.2d 253. Similarly, we may not declare, as a matter of law, that
Kuk's mental affliction was so pronounced as to constitute legal insanity, in the face of some
expert opinion evidence that Kuk knew the nature and quality of his act, had the capacity to
distinguish right from wrong, and knew that he was doing wrong when he killed Bowman.
State v. Lewis, 20 Nev. 333, 22 P. 241; Sollars v. State, 73 Nev. 248, 316 P.2d 917
(reaffirming the right and wrong test). We therefore conclude that all assigned errors
attacking the sufficiency of the evidence are without merit. For the same reason we overrule
the appellant's objection to the instructions regarding first degree murder.
[Headnotes 6, 7]
We now turn to discuss the appellant's argument that the fairness of the trial was infected
by a newspaper story appearing in the Las Vegas Review Journal while the trial was in
progress.
1
The opinions of the staff writer were slanted and appear to have been offered
not only as "news," but also to influence the jurors in their decisional process.
____________________

1
The story: With the windup of the Jerome Kuk murder trial expected by the end of the week, the outcome
presents some problems to the people of the State of Nevada who have enacted laws to protect themselves from
crime.
From the evidence presented so far, the jury of four women and eight men may have little difficulty in ruling
that Kuk was
80 Nev. 291, 297 (1964) Kuk v. State
staff writer were slanted and appear to have been offered not only as news, but also to
influence the jurors in their decisional process. This kind of irresponsible reporting frequently
impedes the administration of justice. Here, however, the court specifically asked the jurors
the next day whether any of them had read the story. None of them responded. In Sollars v.
State, 73 Nev. 248, 316 P.2d 917, on which the appellant relies, no such inquiry was made of
the jurors. There the court inferred that a daily sequence of prejudicial stories during the
progress of the trial was communicated to the jurors who had been permitted to separate
during the recesses of court, and concluded by stating, If such was not the fact the state
could well have overcome the inference by proof. We may not indulge an inference of
communication in this case. To the contrary. We must assume that the jurors, or any of them,
would have answered the court's inquiry affirmatively had the news article been read. The
proof lacking in Sollars v. State, supra, is thus supplied in this case. Therefore, we reject this
claim of error.
____________________
insane at the time he went berserk on Oct. 18, 1958, and shot two persons to death.
IF THAT is their verdict, what happens then?
Kuk, 28, would be sentenced to the Nevada State Hospital. The presiding judge can't send a man to prison
for an insane act.
But, the problem is that Kuk just got out of the Nevada State Hospital a few months ago. Doctors examined
him and decided that he had recovered from the mental illness that plagued him for three years after the tragic
Boulder City killings.
Since the state hospital doesn't keep well' persons within its confines, it would be only a matter of a brief
period of time, say a month at the outset, before Kuk underwent additional examinations and could be judged
cured.
He would then be released from the hospitalfree to roam the streets and partake in whatever indulgences
triggered his first shooting spree.
Kuk could only be sent to the penitentiary if the jury disregarded the medical testimony and decided that
Kuk had all of his mental capabilities at the time of the shooting. He has already been adjudged insane on two
previous court hearings and sent to the state hospital each time.
His case is one which points to a serious void in Nevada's institutions and treatment for the mentally ill.
80 Nev. 291, 298 (1964) Kuk v. State
[Headnote 8]
Next, the conviction is assailed because the court failed to give three instructions, one
relating to self defense, another to circumstantial evidence, and the third to the legal
significance of insane delusion. The instructions were not submitted to the trial court. No
request was made that any of them be given. Notwithstanding this fact, it is the appellant's
present contention that each instruction is so basic and fundamental to this case that the court
was obliged to instruct the jury on its own volition. Though we can imagine cases where the
court would be required to give certain instructions, whether requested or not, the instructions
here mentioned in the context of this case were not required. With reference to the failure to
instruct on self defense, we believe that the court's language in State v. Acosta, 49 Nev. 184,
242 P. 316, is appropriate here. In Acosta the court stated, It is true the court did not instruct
on that point [self defense], but it was the duty of the defendant, if he desired such an
instruction, to request it. This was not done. In this connection we may say that, from a
reading of the entire testimony, we are clearly of the opinion that the defendant was in no way
prejudiced because of the failure to instruct on the point made.
[Headnotes 9, 10]
Nor do we accord credit to the appellant's argument that a particular instruction on
circumstantial evidence had to be given. The court did instruct the jury as to the distinction
between direct and circumstantial evidence. Further instruction on the subject of
circumstantial evidence alone was not required, in view of Kuk's many admissions that he
had killed Bowman. People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865, Annot.,
40 A.L.R. 571.
[Headnotes 11-13]
In Nevada the legal test of insanity is the right and wrong test. State v. Lewis, 20 Nev.
333, 22 P. 241; Sollars v. State, 73 Nev. 24S
80 Nev. 291, 299 (1964) Kuk v. State
Sollars v. State, 73 Nev. 248, 316 P.2d 917.
2
The jury was correctly instructed about that
standard and its meaning. However, the appellant contends that an additional instruction was
required dealing particularly with the concept of an insane delusion (delusional insanity) as
precluding criminal responsibility. We do not agree. The right and wrong test includes
delusional insanity. For example: If Kuk's mind was so diseased as to destroy his capacity to
know the nature and quality of his act, he was legally insane under the first part of the test. On
the other hand, if he did know the nature and quality of his act, but did not know that it was
wrong (perhaps because of a delusion that it was right to kill a narcotics user, etc.), he was
legally insane under the second portion of the test. The appellant's argument regarding
delusional insanity is based in part upon language found in State v. Lewis, supra. We find
much of the language in the Lewis case confusing. If it may be read as approving a legal test
of insanity, in addition to the right and wrong test, we expressly overrule that part of the
opinion.
[Headnotes 14-18]
Next, we must decide whether the court committed error by instructing the jury about the
consequences of a verdict of not guilty by reason of insanity. The court told the jury that if the
defendant is acquitted by reason of the defense of insanity, the finding of the jury shall have
the same force and effect as if he were regularly adjudged insane as now provided by law, and
the judge thereupon shall forthwith order that the defendant be confined in the Nevada State
Hospital until he is regularly discharged therefrom in accordance with law. The instruction
embodies the language of NRS 175.445. The court further instructed the jury that in the
event the Defendant is so confined in the Nevada State Hospital he may be discharged
therefrom at any time, if, in the opinion of the superintendent of the hospital the
Defendant has recovered from his mental illness."
____________________

2
The test: To establish a defense on the ground of insanity, it must be clearly proved that at the time of
committing the act the defendant was laboring under such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing
what was wrong.
80 Nev. 291, 300 (1964) Kuk v. State
time, if, in the opinion of the superintendent of the hospital the Defendant has recovered from
his mental illness. The instructions are challenged on the ground that they deal with
punishment. The challenge is unfounded. The purpose of the instruction is to inform the
jurors that if they find the defendant insane, and acquit, he will not walk out of the courtroom
a free man, but will be confined for medical treatment. A verdict of not guilty by reason of
insanity means neither freedom nor punishment. It does mean that the accused will be
confined in a hospital for the mentally ill until he has recovered his sanity and will not, in the
reasonable future, be dangerous to himself or others. Lyles v. United States, 103
U.S.App.D.C. 22, 254 F.2d 725 (1957). We think that the jury should know the consequences
of such a verdict. In the Lyles case the court held that, where the defense of insanity is fairly
raised and it does not affirmatively appear from the record that the defendant does not want
the instruction, it is not error to inform the jury of the consequences of the verdict of not
guilty by reason of insanity. In our view the propriety of giving the instruction should not
depend upon whether the defendant wants it. Indeed, in Nevada, all written instructions given
in a criminal case are deemed excepted to, and any error regarding them may be reviewed on
appeal. NRS 175.515; Harvey v. State, 78 Nev. 417, 375 P.2d 225. [NRS 175.515 does not
apply if the instruction was not requested below. Accordingly, we did not mention this statute
when discussing the failure to instruct about self defense.] Thus, the merit of an instruction
must be determined by reference to that instruction and others, if any, given upon the same
subject. The defendant's right to question its propriety is preserved by statute and need not be
especially asserted in the trial court. We hold that it is not error to instruct the jury about the
consequences of a verdict of not guilty by reason of insanity.
3
[Headnote 19]
[Headnote 19]
____________________

3
The problem just discussed is to be distinguished from that of instructing a jury about the possibility of
parole in the event the accused is found guilty. On the latter question, attention is directed to a comprehensive
opinion in People v. Morse, 36 Cal.Rptr. 201, 388 P.2d 33.
80 Nev. 291, 301 (1964) Kuk v. State
[Headnote 19]
The appellant next contends that the prosecutor committed reversible error in his closing
argument to the jury by stating, Well, now, if you find him mentally or legally insane we are
going to send him up to our beautiful hospital and they are going to take care of him. Well,
you saw the reports of Doctor Tillim. Two days after he was there, he was all restored and I
don't know how much more you can ask because as soon as he gets back to that miraculous
hospital, he becomes well and when he becomes well, these people turn him loose. The
sarcasm was inappropriate. The statement should not have been made. It conveyed the plain
inference that, if the defendant is found not guilty because of insanity, he would shortly be
released from the hospitalan invitation to the jury to base its decision as to innocence or
guilt upon that consideration rather than upon the evidence. However, defense counsel did not
object to the statement. The absence of an objection, and our careful review of the entire
record, cause us to conclude that the substantial rights of the accused were not affected by the
prosecutor's remark. NRS 169.110; cf. Lyles v. United States, supra.
[Headnote 20]
Finally, the appellant contends that the prosecutor should not have questioned certain
witnesses about a urethral discharge of which a notation was made in Kuk's military
medical record. The defendant had introduced the record into evidence. No objection was
made to the prosecutor's later questions. This claim of error is patently without validity.
Affirmed.
____________
80 Nev. 302, 302 (1964) Hopper v. Hopper
CHRISTINE T. HOPPER, Appellant, v. STUART
P. HOPPER, Respondent.
No. 4717
June 3, 1964 392 P.2d 629
Appeal from judgment of the Eighth Judicial District Court, Clark County; Taylor H.
Wines, Judge.
Divorce case. The trial court rendered judgment, and the wife appealed. The Supreme
Court, Thompson, J., held that wife who used her separate funds to pay for swimming pool
constructed on husband's separate property was not granted reimbursement when divorce was
granted in that wife had made gift of pool to husband and had not loaned him money to pay
for pool.
Judgment affirmed.
Singleton & DeLaney and Rex A. Jemison, of Las Vegas, for Respondent.
Divorce.
Wife who used her separate funds to pay for swimming pool constructed on husband's separate property
was not granted reimbursement when divorce was granted in that wife had made a gift of pool to husband
and had not loaned him money to pay for pool.
OPINION
In this case the husband's separate property, a home, was improved by the construction of a
swimming pool paid for by the separate funds of the wife. In a divorce action the trial court,
in dividing property, failed to reimburse the wife for the cost of the swimming pool (about
$3,000). That court reasoned that the law presumed a gift from the wife to the husband of the
swimming pool cost, which presumption was not rebutted. The wife appeals.
In Lombardi v. Lombardi, 44 Nev. 314, 195 P. 93, the husband expended his separate
funds to improve his wife's separate real property.
80 Nev. 302, 303 (1964) Hopper v. Hopper
the husband expended his separate funds to improve his wife's separate real property. The
court held that, in the absence of any agreement to the contrary, the title to the improvements
follows the land. (Cf. Kraemer v. Kraemer, 76 Nev. 265, 352 P.2d 253, where the court cited
the Lombardi case, but found a specific agreement to consider the advances by the husband to
the wife as loans rather than gifts.) Here the trial court apparently found no reason to consider
the money paid by the wife for the swimming pool as a loan and, therefore, applied the rule of
law announced in Lombardi. It was at liberty to do so, for some of the evidence is compatible
with the legal concept of a gift from the wife to the husband, vesting title to the swimming
pool in him.
Affirmed.
____________
80 Nev. 303, 303 (1964) County of Clark v. Roosevelt Title Insurance Co.
THE COUNTY OF CLARK, a Political Subdivision of the State of Nevada, and
W. W. GALLOWAY, Treasurer of Clark County, Nevada, Appellants, v. ROOSEVELT
TITLE INSURANCE COMPANY, LTD., a Nevada Corporation, Respondent.
No. 4718
June 11, 1964 393 P.2d 136
Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Judge. On
Motion to Dismiss.
Action against county and county treasurer by title insurance company to enforce its
alleged right to redeem certain property taken and sold to county for taxes in 1935. The lower
court granted the plaintiff's motion for summary judgment, and the defendants appealed. The
plaintiff moved to dismiss the appeal. The Supreme Court, McNamee, J., held that where
county treasurer was ordered by court to accept redemption costs and execute and deliver
deeds of reconveyance, action of treasurer in complying with order was involuntary, and
county was not thereby precluded from exercising right to appeal from order granting
summary judgment.
was ordered by court to accept redemption costs and execute and deliver deeds of
reconveyance, action of treasurer in complying with order was involuntary, and county was
not thereby precluded from exercising right to appeal from order granting summary judgment.
Motion denied.
Edward G. Marshall, District Attorney, and John A. Porter, Deputy District Attorney,
Clark County, for Appellants.
Kelly & Pike, of Las Vegas, for Respondent.
1. Judgment.
Motion for summary judgment filed on twentieth day after filing of complaint was premature. NRCP
56(a).
General rule is that right to accept fruits of judgment or order and right to appeal therefrom are not
concurrent but are wholly inconsistent, and election of either is waiver and renunciation of other.
Where party accepting benefits of judgment does so involuntarily, as under court order, his right to
appeal is not foreclosed.
4. Taxation.
Where county treasurer was ordered by court, which had granted motion for summary judgment by title
insurance company seeking to enforce its alleged right to redeem property taken and sold to county for
taxes, to accept redemption costs and execute and deliver deeds of reconveyance, action of treasurer in
complying with order was involuntary, and county was not thereby precluded from exercising right to
appeal from order granting summary judgment.
OPINION
[Headnote 1]
Roosevelt commenced action in the lower court against the county to enforce its alleged
right to redeem certain property taken and sold to the county for taxes in 1935. This action
was filed May 23, 1963. On the 20th day after the filing of the complaint, to wit, June 12,
1963, Roosevelt filed a motion for summary judgment.
Roosevelt filed a motion for summary judgment. This motion was premature for the reason
that NRCP 56(a) provides that a plaintiff at any time after the expiration of 20 days from the
commencement of the action may move for a summary judgment. By the wording of this
rule the filing of the motion on the 20th day was premature. Inasmuch as this point has not
been raised, we will not consider this defect.
On June 12, 1963 the county filed its answer to the complaint and a motion to dismiss the
action denying certain parts of the complaint and alleging as affirmative defenses the statute
of limitations and laches.
The motion for summary judgment was argued on June 28, 1963 by attorneys for
Roosevelt and the county and then submitted. Thereafter on October 7, 1963 the court granted
the motion and ordered the treasurer of Clark County this day to accept from Roosevelt the
redemption costs in the sum of $1,540.83 and simultaneously to deliver to Roosevelt a deed
of reconveyance covering the property in question. The court notified Roosevelt's attorney,
Kelly, by telephone of its action, and attorney Kelly immediately proceeded to the judge with
a prepared judgment which was signed by the district judge. The district attorney represents
to this court that he was never advised by the lower court of its decision granting the motion
for summary judgment.
A copy of the summary judgment was served on appellant Galloway, the Clark County
treasurer, on October 7, 1963. On the same day Galloway accepted the redemption costs and
issued to Roosevelt's attorney a deed of reconveyance of the property.
1
The affidavit of John
E. Kelly states that on the same day a copy of the judgment and a copy of the notice of entry
of judgment were served upon the office of the district attorney.
2
According to the affidavits
of Edward G. Marshall, the district attorney, and John A. Porter, a deputy district attorney, the
office of the district attorney received no notice of the judgment or of notice of entry
thereof on October 7, 1963, and had no knowledge of the same until November 1, 1963.
____________________

1
On October 7, 1963 Roosevelt conveyed away part of the property and on the following day another part.

2
The notice of entry of judgment was not filed however until October 22, 1963, and the Kelly affidavit of
service of same was not filed until October 28, 1963.
notice of the judgment or of notice of entry thereof on October 7, 1963, and had no
knowledge of the same until November 1, 1963. On this latter date the county filed a notice
of appeal therefrom. It appears from the Porter affidavit that the district attorney had no
notice until January 3, 1964 of the execution of the deed of reconveyance. A notice of lis
pendens was thereupon filed.
Respondent has moved to dismiss the appeal herein upon the ground that appellants had
accepted the fruits of the judgment and are thereby foreclosed of their right of appeal.
[Headnote 2]
The general rule is that the right to accept the fruits of a judgment or order and the right to
appeal therefrom are not concurrent but are wholly inconsistent, and election of either is a
waiver and renunciation of the other. Annot., 169 A.L.R. 985.
[Headnote 3]
Under an exception to the general rule where the party accepting the benefits of a
judgment does so involuntarily, i.e., under court order, his right to appeal is not foreclosed.
O'Hara v. MacConnell, 93 U.S. 150; Annot., 39 A.L.R.2d 186.
In Erwin v. Lowry, 7 How. 172, 12 L.Ed. 655, the defendant was ordered to convey certain
property, conditional upon plaintiff's paying a certain sum to the sheriff or to the defendant.
The plaintiff paid the money to the sheriff who turned it over to the defendant. The defendant
conveyed the property over to the plaintiff and then appealed. The court, in holding that the
acceptance of the money by the defendant would not bar his appeal, stated, And we take the
rule to be, that although a decree in equity is fully executed, at the instance of the successful
party, he cannot complain of his own voluntary acts, if he does perform a condition imposed
upon him before he can have the fruits of the decree, although the other party derives a
benefit from such performance. Annot., 5 L.Ed.2d 906.
[Headnote 4]
In the present case where the county treasurer was ordered and directed this day to
accept from Roosevelt the redemption costs and simultaneously execute and deliver to
Roosevelt, or its attorney, a deed of reconveyance, the action of the treasurer was involuntary.
He acted under the mistaken belief that he was compelled to act immediately.
3

The motion to dismiss the appeal is denied.
____________________

3
It does not appear that he contacted the district attorney prior to the execution of the deed which was
presented to him by Roosevelt's attorney.
____________
80 Nev. 307, 307 (1964) Martin v. State
JERALD MARTIN, Appellant, v. THE
No. 4633
June 15, 1964 393 P.2d 141
Defendant was convicted of rape, and from the judgment of the trial court, the defendant
appealed. The Supreme Court, McNamee, J., held, inter alia, that admission of three-year-old
girl's statements to her mother for purpose of convincing jury that defendant had committed a
detestable sexual offense against child constituted prejudicial error.
Reversed and remanded for a new trial.
Roger L. Erickson, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Herbert F.
Ahlswede, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Defendant charged with rape who twice before had distinctly objected to evidence concerning molesting
of a three-year-old child and had been overruled did not waive his objection thereto simply because it was
not repeatedly asserted. NRS 200.360.
2. Witnesses.
To determine qualification of a child under 10 years of age, court must examine the child before
permitting child to testify. NRS 48.030, subd. 2.
3. Criminal Law.
In rape prosecution, admission of three-year-old girl's statements to her mother for purpose of convincing
jury that defendant had committed a detestable sexual offense against child constituted prejudicial error.
NRS 48.030, subd. 2, 200.360.
4. Criminal Law.
On trial of a person accused of crime, proof of a distinct independent offense is inadmissible.
5. Criminal Law.
In rape prosecution wherein evidence was in sharp conflict whether sexual intercourse was forcible or not
and whether victim consented thereto, court's discretionary power to permit knowledge of prejudicial
matter relating to three-year-old girl whom defendant allegedly had molested on same evening was abused.
NRS 200.360.
OPINION
On March 29, 1963 the defendant was found guilty by jury verdict of rape, and judgment
pursuant to said verdict was entered April 2, 1963 sentencing him to prison for not less than 5
years nor more than 20 years. His motion for new trial was denied. Appeal is from the
judgment and from the order denying a new trial.
It appears from the evidence that on November 14, 1962 the defendant and his wife were
at the home of Patsy Camplin who shared the dwelling with the victim, Geri Thompson.
While Merilou Martin, his wife, was in the living room babysitting, defendant went into the
bedroom of Geri Thompson where he found her in bed. She was wearing pajamas. There, he
had sexual intercourse with her. She testified that it was forcible and against her consent. He
testified that he used no force and that although at first she resisted his advances she
co-operated in removing her pajamas and had ceased her resistance when the act of
intercourse took place.
co-operated in removing her pajamas and had ceased her resistance when the act of
intercourse took place. The record shows that Michelle Camplin, the 3-year-old daughter of
Patsy Camplin, was sleeping in the adjoining bedroom at the time.
On cross-examination of the defendant he was asked by the deputy district attorney if he
had not come from the bedroom of Michelle Camplin just prior to entering the bedroom of
Geri Thompson. When he answered No, he was asked, Isn't it true you attacked 3-year-old
Michelle Camplin on the night of the 14th? His counsel objected and moved for a mistrial.
The court stated: I am going to deny the motion for mistrial, and that will be the order. I am
also going to overrule the objection to the question and allow the question to be answered.
The defendant then answered that it was not true.
Patsy Camplin, the mother of Michelle, was called as a witness for the state in rebuttal.
She testified that when she came back to her home the defendant was still there.
Q At that time what, if anything, did you discover concerning your three-year-old
daughter, Michelle?
A That she had been molested.
Q How were you able to make that determination?
A This neighbor girl friend was with me, and she went in there first because my older
son called her into the bedroom and showed the blood on her pants. Then I went in there.
Thereupon the pants were identified and received in evidence over the objection of
defendant's counsel. The blood thereon was conspicuous, especially at the crotch. Mrs.
Camplin testified that the pants were clean earlier that evening and were bloody when she
returned to the house.
Mrs. Camplin was permitted to state a conversation she had with 3-year-old Michelle on
the following day:
Q What did she say?
A The doctor had given me medicine to prevent infection on her. She started screaming
and crying, and I asked her what was wrong. She said it hurt. She said, That man put his
finger up my potty.' "Q To whom was she referring?
Q To whom was she referring?
A I asked her and she said, Merilou's daddy.'
[Headnote 1]
Only after the last question was answered did defendant's counsel object and move for a
mistrial.
1
Defendant twice before had distinctly objected to evidence concerning the
molesting of a 3-year-old child and had been overruled. He cannot be said to have waived his
objection thereto simply because it was not repeatedly asserted. Citizens Bank of Nevada v.
Robison, 74 Nev. 91, 323 P.2d 705; Moore v. Norwood, 41 Cal.App.2d 359, 106 P.2d 939.
The motion for mistrial was denied. The court ignored the objection.
[Headnote 2]
Under subsection 2 of NRS 48.030, children under 10 years of age who are incapable of
receiving just impressions of the facts respecting which they are examined, or of relating
them truly, cannot be witnesses. To determine the qualification of a child under 10 years of
age, the court must examine the child before permitting him or her to testify. A preliminary
examination by the court no doubt would disclose that Michelle could not qualify as a
witness; yet the trial court permitted her statements, although hearsay, to remain in evidence.
[Headnote 3]
This evidence given by Mrs. Camplin, which was solely for the purpose of convincing the
jury that the defendant had committed a detestable sexual offense against a 3-year-old child,
glaringly was prejudicial to the defendant.
[Headnote 4]
The state recognizes the rule of criminal evidence that, on a trial of a person accused of
crime, proof of a distinct independent offense is inadmissible. It contends however that as an
exception to this rule, evidence of another crime is competent to prove the specific crime
charged when it tends to establish motive.
In State v. Nystedt, 79 Nev. 24, 377 P.2d 929, in a prosecution for incest and rape, the
state made an offer of proof of other independent offenses, in part for showing the
defendant's motive for the commission of the acts for which he was charged.
____________________

1
Defendant's counsel on appeal was not his counsel at the trial.
of proof of other independent offenses, in part for showing the defendant's motive for the
commission of the acts for which he was charged. The evidence was rejected. We said: Even
if we were in accord with the State's position that such proffered testimony was admissible
under one of the exceptions to the general rule forbidding evidence of a separate and distinct
offense * * * error would not be declared, because of a trial court's discretionary power to
preclude jury knowledge of such prejudicial material. We then cited with approval the
statement in Nester v. State, 75 Nev. 41, 334 P.2d 524: Even where relevancy under an
exception to the general rule may be found, fair trial demands that the evidence not be
admitted in cases where, by virtue of its prejudicial nature, it is more likely to distract from
the essential issue than to bear upon it.
The evidence was in sharp conflict whether the sexual intercourse was forcible or not and
whether or not the victim consented thereto.
2

[Headnote 5]
With this highly inflammable evidence, in part consisting of hearsay of statements of a
3-year-old minor, the defendant was prevented from having a fair trial. The jury naturally
would be prejudiced and discredit his testimony in favor of the testimony of Geri Thompson,
the alleged victim. Aside from the hearsay statements of Michelle, which we hold to be
inadmissible, the court's discretionary power to permit knowledge of the prejudicial material
relating to Michelle was abused.
The judgment and order denying a new trial are reversed, and the case is remanded for a
new trial.
____________________

2
Rape is the carnal knowledge of a female, forcibly and against her consent. NRS 200.360.
____________
80 Nev. 312, 312 (1964) Public Serv. Commission v. Ely Light & Power Co.
PUBLIC SERVICE COMMISSION OF NEVADA, Appellant, v.
ELY LIGHT AND POWER COMPANY, a Corporation, Respondent.
No. 4714
June 18, 1964 393 P.2d 305
Appeal from judgment of the First Judicial District Court, Ormsby County; Frank B.
Gregory, Judge.
Utility rate case. The Public Service Commission made findings and ordered utility to
submit revised tariff schedules reflecting reductions in domestic lighting revenues,
commercial lighting revenues, and public street and highway lighting revenues, and the power
company appealed. The trial court entered an order reversing the order of the Public Service
Commission, and appeal was taken. The Supreme Court, Badt, C. J. held that commission's
order was within commission's authority under statute giving commission full power of
supervision over utilities and authorizing commission to fix just and reasonable rate
schedules.
Affirmed in part. Reversed in part, and remanded for further proceedings.
Harvey Dickerson, Attorney General, and Eli Grubic, Special Deputy Attorney General,
for Appellant.
Gray and Horton, and Belford and Anglim, of Reno, for Respondent.
1. Electricity.
Public Service Commission's order requiring reductions in power company's gross revenues from
domestic lighting, commercial lighting, and public and street lighting was within its authority under statute
giving commission full power of supervision over utilities and authorizing commission to fix just and
reasonable rate schedules. NRS 704.020, subd. 2, 704.120, subds. 1, 5, 704.210.
2. Electricity.
Public Service Commission could lawfully base its valuation of power company's property used in public
service on original cost less depreciation. NRS 704.440.
3. Electricity.
Trial court which adopted reproduction cost less depreciation as method to be used for determining fair
value of property of power company for rate making purposes had erroneously substituted its
judgment for that of Public Service Commission, which had adopted original cost less
depreciation in determining fair value.
substituted its judgment for that of Public Service Commission, which had adopted original cost less
depreciation in determining fair value. NRS 704.440.
4. Electricity.
In absence of competent evidence to support finding of Public Service Commission that cost of power
company's pension plan was unreasonable, deletion of 50 percent of the cost from the rate base
computation was arbitrary, confiscatory, and erroneous. NRS 704.550.
5. Public Service Commissions.
Public Service Commission must regulate utility rates but not manage utility's business.
In absence of abuse of discretion by utility and of showing of lack of good faith, inefficiency, or
improvidence and if amounts in question are reasonable and are actually paid as pensions or allocated to
proper fund under feasible plan by utility, Public Service Commission should not substitute its judgment
for that of management by deletion of part or all of cost of pension plan from rate base computations. NRS
704.550.
7. Electricity.
Evidence failed to establish that street lighting rate as reduced by Public Service Commission in rate
making case was less than rate power company was required to pay for power it furnished for street lighting
purposes.
Public Service Commission's disallowance in rate making case of tax accruals from working capital
which was to be included in rate base was arbitrary in absence of showing availability of the tax accruals
for use as working capital. NRS 704.020, subd. 2, 704.120, subds. 1, 5, 704.210.
OPINION
This utility rate case comes to us on an appeal from the district court reversing an order of
the Public Service Commission.
The commission had upon its own motion instituted an investigation concerning the rates
charged by Ely Light and Power Company. NRS 704.120(5).
1

After a hearing, the commission on July 13, 1961, made its findings and ordered the
utility to submit revised tariff schedules reflecting annual reductions of $32,767 in
domestic lighting revenues, $1S,000 in its commercial lighting revenues, and $5,346 in its
public street and highway lighting revenues. It should be noted here that the utility owns
no generating facilities and no transmission facilities {with the exception of certain poles,
transformers, etc.), but since 1922 has purchased all its power requirements from the
facilities of Kennecott Copper Corporation.
____________________

1
The commission may at any time, upon its own motion, investigate any of the rates, tolls, charges, rules,
regulations, practices and service, and, after a full hearing as above provided, by order, make such changes as
may be just and reasonable, the same as if a formal complaint had been made.
made its findings and ordered the utility to submit revised tariff schedules reflecting annual
reductions of $32,767 in domestic lighting revenues, $18,000 in its commercial lighting
revenues, and $5,346 in its public street and highway lighting revenues. It should be noted
here that the utility owns no generating facilities and no transmission facilities (with the
exception of certain poles, transformers, etc.), but since 1922 has purchased all its power
requirements from the facilities of Kennecott Copper Corporation. It distributes power to the
City of Ely, to White Pine County, and to the towns of Ruth, McGill and East Ely.
At the hearing the usual dispute as to the rate base occurred. On the basis of the utility's
annual reports as submitted to the commission and a current audit of the utility's records by
the commission, the commission, on a rate base of original cost of plant in service, less
depreciation, found that the utility's return ranged for the past several years from 13.71
percent to 15.79 percent. As against this, evidence presented by the utility, upon three
different methods of computing its rate base, and contending that reproduction cost, less
depreciation, was the proper method to be adopted, showed returns varying from 5.9 percent
to 11.6 percent, and that net earnings upon the depreciated reproduction cost, based upon its
1960 operation, would yield 5.9 percent.
On the first appeal to the district court (a complaint seeking a judicial review of the
commission's orders, pursuant to NRS 704.540) additional testimony was taken, and the court
also considered the evidence introduced before the commission. Pursuant to NRS 704.560 the
court then ordered the transmission of a copy of such new evidence to the commission.
2
The
commission, after consideration of the new evidence taken before the court, modified the
street lighting schedule to reflect the partial ownership by the utility of the facilities
connected with such service, but in all other respects sustained its original order.
____________________

2
The new evidence before the trial court for the most part comprised (a) additional testimony and exhibits
reflecting actual 1960 operations rather than those theretofore partially estimated; (b) testimony of the utility's
ownership of a portion of poles and transformers used for street lighting; (c) expert testimony on a study of the
economy of White Pine County, with characteristics and risks of the respondent's business and earnings; and (d)
expert testimony analyzing the utility's business from the standpoint of the security market and capital
investment and return.
court, modified the street lighting schedule to reflect the partial ownership by the utility of the
facilities connected with such service, but in all other respects sustained its original order.
The first hearing before the commission was conducted December 16, 1960, and a second
hearing, March 6, 1961. Using original cost, less depreciation, for plant investment, the
commission first indicated the rate base for the years ending December 31, 1955, 1956, 1957,
1958, and 1959. For the last-named period it showed the following:
Plant in service $503,650.81
Reserve for depreciation 153,608.03
Net plant in service 350,042.78

Net operating income 55,261.89
Rate of return, 15.79%
It also showed the dividends declared by the utility for these same years, respectively, as
follows: 1955, $24,000; 1956, $24,000; 1957, $24,000; 1958, $30,000; 1959, $35,000.
On the other hand, the utility, through its witnesses, fixed its rate base, on the basis of
reproduction cost new, less depreciation, at $635,391. This was based in large part on a report
prepared by Ebasco Services, Inc., listing all items of property in great detail.
Rate of return reflected by evidence submitted by the utility, under varying methods, was
as follows:
Original Cost Rate Base $337,712.48
Working Capital 63,011.15

400,723.63
Net Operating Income 44,351.14
Rate of Return, 11.6%
Reproduction Cost Rate Base
Reproduction cost, less depreciation $635,391.00
Less property not in use 3,105.00

632,286.00
Add 10% going concern and development cost 63,228.00

695,514.00

758,525.15
Fort Dodge Decision Rate Base
3

30% Original cost, less depreciation $101,313.74
70% Replacement cost, less depreciation 486,860.02

588,173.76

651,184.91
50-50 Rate Base
50% Original cost, less depreciation $168,856.24
50% Replacement cost, less depreciation 347,757.00

516,613.24

3a
569,924.39
The commission rehearing of March 6, 1961, recited that the annual report of the utility for
1960 shows the following results: Operating Revenues $510,115.91
____________________

3
Iowa-Illinois Gas & Electric Co. v. City of Fort Dodge, 248 Iowa 1201, 85 N.W.2d 28.

3a
Figures given by the utility to the commission and by both parties to the trial court and as contained in the
record submitted to this court. The mistake in addition (which should bring this total to $579,624.39) is not a
material one.
Operating Revenues $510,115.91
Rents from Plant in Service 3,804.89
Merchandising & Jobbing 3,407.11

Total Operating Revenues 517,327.91
Total Operating Expenses 384,378.50
Depreciation Expense 26,607.58
Taxes 53,123.52

Net Operating Income 53,218.31
The learned district judge in his opinion recited the issues before the court to be as
follows:
(a) Whether the Commission may lawfully exercise its rate making power by the
imposition of a ceiling upon a utility's income in lieu of fixing rates for its services.
(b) Whether the Commission's valuation of a utility's property used and useful in service
to the public may be based solely upon a single method of valuation.
(c) Whether the Commission may lawfully exclude from a utility's rate base a portion of
the cost of a pension plan established by a utility for the benefit of its employees, in the
absence of any showing that the cost of such pension plan is unreasonable.
(d) Whether the Commission may delete from a utility's rate base a portion of the sum
proposed by the utility as working capital requirements, in the absence of any showing that
such sum is unreasonable.
(e) Whether, in setting the amount of working capital requirements allowable for rate
base purposes, the Commission may require 100% of tax accruals to be set off against
working capital requirements.
(f) Whether the refusal of the Commission to include in the rate base computations
certain of a utility's physical property used and useful in the public service constitutes a
confiscation of such property without just compensation and without due process of law.
The commission's opening brief on appeal from the court's order vacating the
commission's order recites its view of the issues presented to be as follows: "I.
I. Is the Public Service Commission order requiring respondent to submit rate schedules
reflecting specific reductions in gross revenues a lawful exercise of the commission's power
to fix just and reasonable rates?
II. May the commission lawfully base its valuation of respondent's property used in
public service on its original cost less depreciation?
III. Is the commission's disallowance as an operating expense of one half of respondent's
pension plan cost confiscation of respondent's property?
IV. Does the commission order of reduction in public street lighting revenues result in
confiscation of respondent's property used in furnishing public street lighting?
V. Does the commission's allowance of working capital for inclusion in the rate base and
the commission's deduction from that allowance of tax accruals result in confiscation of
respondent's property?
We think that a discussion, disposition, and determination of the issues as thus last set
forth will fully dispose of the more abstract recitals of the issues by the court below.
[Headnote 1]
(1) Order to reduce revenues. We first turn to the appellant commission's attack on the
court's holding that the commission's order commanding the company to reduce its revenues
rather than fixing and establishing just and reasonable rates in place of those charged by the
utility was error, requiring reversal.
NRS 704.120(5) is quoted in full in footnote 1, supra. It should be noted that in addition to
the powers there granted under subsection 1 of NRS 704.120 that * * * the commission shall
have the power to fix and order substituted therefor such rate * * * schedules as shall be just
and reasonable, subsection 2 of NRS 704.020 gives to the commission * * * full power of
supervision, regulation and control of all such utilities, subject to the provisions of this
chapter * * *, and that NRS 704.210 gives the commission power not only to fix but also to
regulate rates. An order prescribing revenue deductions and ordering the submission by the
utility of revised schedules to accomplish the same was approved in Federal Power
Commission v. Natural Gas Pipeline Co.,
deductions and ordering the submission by the utility of revised schedules to accomplish the
same was approved in Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575,
62 S.Ct. 736, 86 L.Ed. 1037. A similar provision to our own was contained in the statute
under attack in that case (15 U.S.C.A. Sec. 717 d (a) requiring the commission to determine
the just and reasonable rate * * * [and to] fix the same by order. Accord: Michigan
Consolidated Gas Co. v. Panhandle Eastern Pipe Line Co., 6 Cir. 1955, 226 F.2d 60;
Michigan Bell Telephone Co. v. Michigan Public Service Commission, 332 Mich. 7, 50
N.W.2d 826. In like manner the Pennsylvania Supreme Court approved the propriety of the
commission's furnishing the basis on which the utility may compute and file the proper rates.
Pennsylvania Power and Light Co. v. Public Service Commission, 128 Pa. Super. 195, 193 A.
427, 437.
4

We, accordingly, hold that the commission's order requiring reductions in gross revenues
in the three categories of service was within its authority to make, and the district court erred
in deciding otherwise.
(2) The fixing of the rate base. The second error assigned by the appellant commission is
the court's holding that the commission's adherence to the single-method approach to the
valuation of the company's property was [reversible] error, * * * was error on the part of the
court below. This stems from the commission's adoption of a rate base based on original cost,
less depreciation. The court based its holding on language used in Tobacco River Power Co.
v. Public Service Commission, 109 Mont. 521, 98 P.2d 886; State v. Public Service
Commission, 131 Mont. 272, 309 P.2d 1035, 1038; Southern Pacific Co. v. Bartine, 170 F.
725, 749 (U.S. Circuit Court for Nevada); and Bell Tel. Co. v. Public Service Commission,
70 Nev. 25, 253 P.2d 602, 604. It also relied upon NRS 704.440 reading as follows:
Investigation, ascertainment of value of public utility's property.
____________________

4
This holding is not weakened by the fact that the court was impelled to reverse the commission because it
had not found sufficient facts to enable the utility to file a proper tariff.
1. The commission may, in its discretion, investigate and ascertain the value of all
property of every public utility actually used and useful for the convenience of the public.
2. In making such investigation the commission may avail itself of all information
contained in the assessment rolls of the various counties and the public records and files of all
state departments, offices and commissions, and any other information obtainable.
That the commission was alert to the question presented is evidenced from its opening
paragraphs in discussing type of rate base. The commission stated:
The question of rate base has been one of the most widely discussed issues in utility
regulation. The advocates of various rate base theories have been active in both state and
federal regulatory procedures.
One of the original United States Supreme Court cases on this subject was reported in
Smyth v. Ames, 169 U.S. 466 [18 S.Ct. 418, 42 L.Ed. 819]. Here, the Court gave fair value as
a standard for determining rate base, and this case was relied upon in the State of Nevada by
the Federal District Court in Reno Power, Light and Water Co. v. Public Service
Commission, 300 Fed. 645 (1921). This criteri[on] was again followed in Reno Power, Light
and Water Co. vs. PSC, 298 Fed. 790 (1923), and again in Elko-Lamoille Power Company
vs. PSC, 1 F.Supp. 790 (1932).
No other Nevada decisions have directly reported on this point since 1932. The United
States Supreme Court, in the case of Federal Power Commission v. Hope Natural Gas Co.,
320 U.S. 591 [64 S.Ct. 281, 88 L.Ed. 333], (1944), approved the Federal Power
Commission's decision to reject reproduction cost, or trended original cost, and relied on
original cost for rate base purposes.
The Ely Light and Power Company, in its brief, has advanced several of the fair value
theories for rate base purposes. Many of these theories have been adopted by other
jurisdictions, but are most notable in jurisdictions which are bound by statute or constitutional
provisions to use fair value rate base.
This Commission, in recent decisions, has used original cost for rate base purposes. The
use of original cost as a rate base in rate making matters is not necessarily a method to reduce
revenues of utility companies. Rate of return is becoming less important in rate making since
the end result of rate making is the more important aspect in which the Commission should
be concerned. The real question for regulatory bodies is not the manner in which a rate of
return is calculated, or the particular percentage of rate of return that is the mathematical
result of which base is used for making the calculation. Rather the question for determination
is whether the utility is able to earn enough money to keep it in a healthy financial position,[
5
] able to meet its fixed costs and pay its investors a reasonable return.
6

It is to be noted that the language of NRS 704.440 is permissive. The utility was permitted,
over objection, to introduce evidence at length portraying the different methods of arriving at
value. The record shows that the point was argued at length and counsel were instructed by
the commission to submit briefs in support of and against the arguments used as to the
various methods of determining the rate base. The commission did in fact give consideration
to all the methods suggested but rejected the propriety, in view of all the conditions
appearing, of adopting any one of the suggested methods in preference to or exclusion of
original cost, less depreciation. Such method it deemed to be most applicable to the facts and
conditions of the Ely Light and Power Company.
____________________

5
At this point many of the cases insert, to afford sufficient working capital* * *.

6
In discussing the submission of the case on briefs, the commissioner stated: I think very definitely you
should cover the legal arguments as to treatment of rate base, and there you will have the discussion of the
original cost versus the other methods of reporting rate base, fair value, reproduction, etc. He also asked that
the question of working capital, among others, be briefed.
When alternative methods of finding a rate base were offered in evidence, objection was made by the
attorney for the commission. The presiding commissioner overruled the objection on the grounds that it is only
evidence, and would be weighed by the commission with the other methods of determining rate base, so it is
admitted in evidence.
Ely Light and Power Company. It may be noted in passing that for the commission to adopt
reproduction cost, less depreciation, as urged by the utility, would be doing the very thing that
the lower court condemnedthe use of a single-method approach. In its reliance on
Southern Pacific Co. v. Bartine (Circuit Court, Nevada, 1909), 170 F. 725, and the Montana
cases, the court below necessarily was led back to Smyth v. Ames, 169 U.S. 466, 18 S.Ct.
418, 42 L.Ed. 819 (1898). We need not trace the tendency of the United States Supreme
Court, through a number of decisions, to wean itself from Smyth v. Ames. This it finally and
conclusively did in Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64
S.Ct. 281, 88 L.Ed. 333. Citing the Hope case in Bell Tel. Co. v. Public Service Commission,
70 Nev. 25, 253 P.2d 602, this court said: [I]t is not our province to quarrel with methods
used by the commission or with methods approved by the district court, no matter how faulty
they may have been as means or guides in arriving at sundry determinations involved either in
evaluating the property or determining the net return if the end result of the orders made is to
permit the company a just and reasonable return.
[Headnotes 2, 3]
The trial court, in its reliance on Southern Pacific Co. v. Bartine, supra, adopted
reproduction cost, less depreciation, as the method to be used for determining fair value, thus
substituting its judgment for that of the commission. The commission, in its consideration of
several methods, was not precluded by this court's opinion in Bell Telephone Co. v. Public
Service Commission from adopting one of the methods considered, and adopted that of
original cost, less depreciation. In thus substituting its judgment for that of the commission,
the trial court was in error. See Los Angeles Gas & Electric Corporation v. R.R. Commission,
289 U.S. 287, 53 S.Ct. 637, 77 L.Ed. 1180.
(3) The utility's pension plan. The appeal next attacks the district court's decision in
holding that the commission had acted arbitrarily in disallowing as an operating expense one
half of the cost of the utility's pension plan.
operating expense one half of the cost of the utility's pension plan. The sole reference to this
point in the commission's opinion and order is as follows:
One expense item for 1960 in the exhibit of the Company, and also in the 1960 Annual
Report, was a pension plan in the amount of $13,534.96. This expense was instituted by the
Company during the latter part of 1960. The plan, as explained by the Company, is an
employee retirement program which costs approximately 15% of total wages paid.
Company-employee pension plans are becoming a standard today and many employers have
retirement plans for employees' benefit. However, in viewing this expense in the light of a
rate matter, this Commission feels that for the Company to pay such a high cost for the plan is
not in the best interest of the rate payers. If the Company wishes to continue this particular
plan, we cannot alter such intention, but we can, for rate making purposes, allow a percentage
of the cost as an expense to the rate payer and the balance would become an expense to the
stockholders.
We quote the trial court in its disagreement with the commission on this item:
After a careful and painstaking review of the record, this Court is constrained to hold that
the Commission's finding that the cost of this pension plan is unreasonable is not supported
by the evidence. In the final analysis, the cost of such pension plans are a part of the cost of
salaries and wages paid to the Company's employees, and unless unreasonable, are properly
included in the rate base. State v. Tri-State Tel. & Tel. Co., 204 Minn. 516, 284 N.W. 294,
316; Central Maine Power Co. v. Public Utilities Comm., 150 Me. 257, 109 A.2d 512, 520.
There being no competent evidence before the Commission to support its finding that the cost
of the pension plan was unreasonable, to delete 50% of such cost from the rate base
computations was arbitrary, confiscatory and erroneous, requiring reversal.
[Headnotes 4-6]
We agree with the trial court. A search of the record finds nothing to support the
commission's conclusion on this item.
this item. The commission, on this point, relies upon the provision of NRS 704.550, throwing
the burden of proof upon any party attacking the order of the commission, to show by clear
and satisfactory evidence that the order is unlawful or unreasonable. The commission refers
constantly, in addition, to the presumption of the legality of its orders. However, one finds in
the cases the recurring statement of such presumption if the order finds substantial support
in the evidence. We find also many references, in turn, to the presumption of the proper
exercise of judgment by the utility in matters which are particularly a function of
management. It is the commission's duty to regulate rates but not to manage the utility's
business. Monroe Gaslight & Fuel Co. v. Michigan Public Utilities Com'n, D.C., 11 F.2d 319,
325. In the absence of an abuse of discretion on the part of the utility and in the absence of
showing lack of good faith, inefficiency or improvidence, and if the amounts in question are
reasonable and are actually paid as pensions or are allocated to a proper fund under a feasible
plan, the commission should not substitute its judgment for that of management. State v.
Tri-State Tel. & Tel. Co., 204 Minn. 516, 284 N.W. 294, 316; Central Maine Power Co. v.
Public Utilities Commission, 150 Me. 257, 109 A.2d 512, 520; West Ohio Gas Co. v. Public
Utilities Commission, 294 U.S. 63, 55 S.Ct. 316, 79 L.Ed. 761, 769; Missouri ex rel.
Southwestern Bell Tel. Co. v. Public Service Commission, 262 U.S. 276, 43 S.Ct. 544, 67
L.Ed. 981, 985. In Central Maine Power Co. v. Public Utilities Com'n, 150 Me. 257, 109
A.2d 512, 520, the court said concerning the pension plan: The determination was primarily
a matter of managerial discretion and certainly no abuse of such discretion was involved, nor
was there any capricious or arbitrary action which would place an unfair burden upon any
group of consumers. * * * It was error for the Commission to disregard the annual charge for
pension payments which was included in Amortization and General Expense. Accord: State
Public Utilities Commission ex rel. City of Springfield v. Springfield Gas & Electric Co., 291
Ill. 209, 234, 125 N.E. 891. See Monroe Gaslight & Fuel Co v. Michigan Public Utilities
Com'n D.C., 11 F.2d 319, 325.
& Fuel Co v. Michigan Public Utilities Com'n D.C., 11 F.2d 319, 325.
[Headnote 7]
(4) The street lighting rate. The court held that the commission's order reducing the rates
for public street lighting results in confiscation, and the utility asserts that this is amply and
conclusively shown by the fact that the street lighting rate is less than the rate that the utility
must pay for power.
The contract between Kennecott Copper Corporation and Ely Light & Power Co., as
amended, provides for sale of power according to the following schedule:
First 150,000 KWH @ 0.02
Next 250,000 KWH @ .019
Next 400,000 KWH @ .018
All over 800,000 KWH @ .0175
The rate for street lighting ordered into effect by the commission was 2.4000 per KWH.
The utility claims that its average cost of delivering the service is 3.405 per KWH and
that the excess of cost over receipts, for the year 1960, for street lighting, is $7,085.63. This it
derives from the following figures:
[Total] operating expense for 1960 $429,412.29
Total KWH sold 1960...................... 12,609,933.
Cost per KWH 1960........................ 3.405
Total KWH sold to Ruth, Ely,
East Ely, McGill, and White
Pine County.................................. 705,038.

Cost of KWH sold to five
munici-
palities (705.038 x 3.405).......... $24,006.54
Rate chargeable by Ely L.& P.
Co. per order July 12, 1961.......... 16,920.91

Excess of cost over receipt for
sales.............................................. $7,085.63
But this is a non sequitur. We have been unable to find in the record any justification for
apportioning the entire operating expense for delivering the entire KWH sold, to the KWH
sold to the five municipalities.
sold, to the KWH sold to the five municipalities. In other words, we do not know that the cost
of the street lighting was the same as the cost of the industrial and residence lighting.
Respondent's contention that the income received from the sale of power [for street
lighting] is less than the cost * * * is not borne out by the record and is without merit.
7

[Headnote 8]
(5) Working capital. The commission found a requirement for working capital in the sum
of $155,805 and took one eighth of this (as representing a period of approximately six weeks,
with which the utility does not seem to have any complaint), namely, $19,475. To this it
added material and supplies in the sum of $13,232, making a total of $32,707. Up to this
point there is no serious disagreement. However the commission, referring not to court
decisions but to its former decisions in rate cases, held that where a utility has available to it
certain accrued accounts from operating expenses such as reserve for federal income taxes
and reserve for property taxes, this must be utilized to the extent that these were sufficient to
provide the necessary funds for working cash and materials and supplies, and that allowance
must be made only for the balance after deducting such tax accruals. The commission found
that estimated property taxes amounted to $14,000 and estimated federal income taxes
amounted to $16,100, a total of $30,100, and deducted such sum from the $32,707 found to
be necessary for working capital, thus reducing its allowance for working capital to $2,607.
The difficulty with this is that no showing was made of the availability of the tax accruals at
the times when working capital was necessary. The presiding commissioner questioned one
of the witnesses in this regard and asked with reference to taxes: "Q.
____________________

7
The court found that the commission failed to take into account in determining the rate base the fact that the
power company owned a number of power poles and transformers used by the municipality of Ely. The
commission at its hearings used plant figures taken directly from the power company books. There was no
showing at trial that these figures considered by the commission did not include the value of the poles and
transformers.
with reference to taxes: Q. But they are accrued monthly? A. Their income tax is not. Q. But
the money available for income tax is available at the end of each month during the current
year; is that not correct? A. Well, that may not be necessarily true. * * * They do not accrue it
monthly so that at the end of the year you have accrued actually or fairly close. It is computed
at the end of the year and accrued December 31st and paid half on March 15th and half on
June 15th. It isn't necessarily true that the money would be available. It might be the situation,
as was the case when they bought the other two properties, there for a time they were very
low on cash. I don't recall from memory right off hand whether there was enough, but they
may have had to borrow money to pay the income tax. In Chesapeake & Potomac Tel. Co. v.
Public Service Commission, 201 Md. 170, 93 A.2d 249, 256, the court applied the tax
accumulations against required working capital since these advance payments are available
for current use until they become payable to the taxing authorities * * *. (Emphasis
supplied.)
And in the trial de novo before the court below the utility's expert witness Nelson testified
on cross-examination: [The accrued amounts] would be available until the time the tax is
paid, which is twice a year, and at such time they would have to use funds which would be
used to pay expenses. The day after the taxes were paid their working capital would be
depleted practically and they would have to start building it again to take care of their normal
operating expenses from day to day.
Another witness testified, with reference to required working capital: This is based on
1960 figures, which amounts to six weeks of the total operating expenses * * * $431,000,
which amounts to $49,779.40. Now, this is due to the necessity of having to pay expenses
prior to the collection of operating income, the lag in the billing and collection, and this is a
normal period for computing this. It is sometimes one-eighth of a year that is used, sometime
six weeks. * * * To that, ordinarily in computing working capital requirements for a public
utility, they add the material and supplies inventory, which was $13,231.75, making total
working capital requirement of $63,011.15."S
The commissioner, in cross-examining the utility's witness, after calling attention to the
fact that the utility collects its income each month and that the federal income tax is
payable one half on March 15 and one half on June 16, asked: "So that there could be
some funds available from the accrued accounts to meet the obligations of the working
capital; is that correct? A. That is right.
they add the material and supplies inventory, which was $13,231.75, making total working
capital requirement of $63,011.15.
8

The commissioner, in cross-examining the utility's witness, after calling attention to the
fact that the utility collects its income each month and that the federal income tax is payable
one half on March 15 and one half on June 16, asked: So that there could be some funds
available from the accrued accounts to meet the obligations of the working capital; is that
correct? A. That is right. This is the working capital requirement computed this way. On this
computation, theoretically that is the working capital at all times, every day, each day. And
in the trial de novo before the court below, the utility's expert witness, Nelson, testified on
cross-examination:
[The accrued accounts] would be available until the time the tax is paid, which is twice a
year, and at such time they would have to use funds which would be used to pay expenses.
The day after the taxes were paid their working capital would be depleted practically and they
would have to start building it again to take care of their normal operating expenses from day
to day. In the City of Cincinnati v. Public Utilities Commission, 161 Ohio St. 395, 119
N.E.2d 619, the court indeed referred to the general rule that where the rate payers provide
such funds, it is not proper that the stockholders should be allowed a return on them by
including them in the rate base. However, it referred to the accruals which will be constant
with reasonable certainty in the foreseeable future and which are available for working capital
and for investment in materials and supplies * * *. This limitation it emphasized by
repeating it later in the opinion.
In fact the only testimony in the record consists of these statements, indicating that the tax
accruals would not be available when needed; or if, for example, accruals were on hand
sufficient to make the June 15th tax payment and were used for that purpose and this
would virtually exhaust all of the accruals on hand, then there is no showing of how the
utility could meet its payrolls and other expenses without providing further working
capital.
____________________

8
This included depreciation and the monthly payments to Kennecott for power. These were deducted by the
commission, resulting in the figure for working capital as $32,707. The commission's action in this respect is not
attacked in this appeal.
accruals were on hand sufficient to make the June 15th tax payment and were used for that
purpose and this would virtually exhaust all of the accruals on hand, then there is no showing
of how the utility could meet its payrolls and other expenses without providing further
working capital. In short, the disallowance of the presumed $30,100 of tax accruals is based
on nothing but the commission's assumption that these accruals would be available for
operating revenues.
On this point the commissioner refers to several authorities supporting the view of
deducting from working capital the sums available from tax accruals. In these cases, however,
the evidence supported the availability of the tax accruals for use as working capital. See, for
example, Petition of Mountain States Tel. & Tel. Co., 76 Idaho 474, 284 P.2d 681. Such
evidence is lacking in the instant case.
The commission says that its effectiveness would be unduly restricted unless it could
utilize its knowledge acquired over an extended period of rate regulation. In our opinion
this is not a substitute for evidence. This would allow no way for a utility to combat a
commission's finding. We cannot but affirm the trial court's holding that such action was
arbitrary.
The district court's order, discussed under topic 3, holding invalid the commission's
deletion from the rate base computations of 50 percent of the expense of the utility's pension
plans, is affirmed.
The district court's order, discussed under topic 5, to the effect that the commission's order
that the utility's working capital must be reduced from $32,707 to $2,607 by reason of the
availability of tax accruals, as being without support in the evidence, is affirmed.
The order of the district court, discussed under topic 1, holding the commission's order
invalid because, in place of establishing new rates, it ordered the utility to reduce its operating
revenues in its three categories of service, is reversed.
The order of the court below, discussed under topic 2, holding that the commission was in
error in adopting a rate base of original cost, less depreciation, after considering all other
methods suggested for establishing the rate base, is reversed.
rate base of original cost, less depreciation, after considering all other methods suggested for
establishing the rate base, is reversed.
The lower court's order, discussed under topic 4, holding that the reduction in operating
revenues from street lighting amounted to a confiscation of the utility's property, is reversed.
The case is accordingly remanded to the court below with directions for its remand to the
Public Service Commission of the State of Nevada for further consideration as follows: (1)
either to correct its deletion of one half of the expense of the utility's pension plan, or to take
further evidence showing that the cost of said plan was capricious or arbitrary, or an abuse of
discretion, or would place an unfair burden upon any group of consumers, and beyond the
function of the utility in exercising its powers of management; (2) either to correct its deletion
of tax accruals from working capital (thus reducing the working capital to $2,607) or to take
additional evidence to show that the tax accruals will be available, and if so, to what extent,
for use as working capital.
The taking of such evidence shall be at the convenience of the commission and the utility
and upon due notice, with the right of both parties to offer evidence upon the said two
subjects.
Each party will pay its own costs in this court.
____________
80 Nev. 331, 331 (1964) Bangle v. Holland Realty Inv. Co.
JOHN BANGLE, JOHN BANGLE, Inc., JOHN F. SEVERIN CARL WHITE, Jr., ROBERT
L. BLACK MURIEL GREGORY and SEVERIN DEVELOPMENT, Inc., a California
Corporation, Individually and dba Palomar Associates, Appellants, v. HOLLAND REALTY
INVESTMENT CO., Inc., Respondent.
No. 4720
June 19 1964 393 P.2d 138
Marshall, Judge.
Action by licensed real estate broker to recover commissions for selling houses. The trial
court gave judgment on jury's verdict for the plaintiff, and the defendants appealed. The
Supreme Court, Thompson, J., held that exclusive listing agreement which did not contain a
definite termination date as required by statute was not enforcible, that broker could not
recover quantum meruit from the defendant with whom he had the exclusive listing
agreement, but that broker could recover quantum meruit from the codefendant with whom
the broker had no exclusive listing agreement.
Reversed and remanded, with directions.
Stewart & Horton, of Reno, for Appellants.
1. Brokers.
The exclusive listing statute is a statute of frauds limited to exclusive listing agreements for sale of realty.
NRS 645.320.
2. Brokers.
The exclusive listing statute permits property to be listed for sale in anticipation of future ownership.
NRS 645.320.
3. Brokers.
The exclusive listing agreement was not enforcible where agreement did not contain a definite
termination date as required by statute. NRS 645.320.
4. Brokers.
Broker who procured sales but who had exclusive listing agreement which was unenforcible for failure to
contain definite termination date as required by statute could not recover quantum meruit from the
defendant with whom he had the agreement. NRS 645.320.
5. Brokers.
Broker who procured sales of houses for defendant with whom broker had no exclusive listing agreement
could recover quantum meruit from that defendant for reasonable value of his services.
OPINION
Holland, a licensed real estate broker, brought suit against Bangle and Palomar Associates
to recover commissions for selling houses in the Sunset Manor Subdivision, Las Vegas,
Nevada. He won below. A jury awarded him $38,800 against all defendants, and judgment
was entered. This appeal followed. As we see it, the judgment cannot stand, for it necessarily
rests upon an exclusive listing agreement which, because of its failure to contain a definite
termination date, is not enforcible as a matter of law.
In brief the record shows that Palomar Associates purchased land upon which 97
subdivision homes were built, and Bangle was the general contractor who built them. The net
profits from the subdivision venture were shared equally by Palomar and Bangle. On
November 30, 1959, before the land was acquired and before Palomar and Bangle entered
into their arrangement, Holland and Bangle made a written commission agreement,
apparently in anticipation of the possible acquisition of Sunset Manor by Bangle.
1
That
agreement designated Holland as the exclusive agent for Bangle with an exclusive right to
sell any houses which I or my company may build or cause to have built on property
tentatively known as Sunset Manor in West Las Vegas, Nevada, for a minimum commission
of $400 a house. Each signed the agreement. However, it did not contain a specific
termination date as required by NRS 645.320. No other agreement was made between
Holland and Bangle governing Holland's commissions for selling houses in Sunset Manor,
nor did Holland ever reach an understanding with Palomar Associates in that regard.
____________________

1
Bangle made two purchase proposals. Each was rejected by the owners. Later Bangle interested Palomar
Associates who were financially able to make an offer acceptable to the owners. A sale was consummated.
Bangle took title temporarily and then conveyed to Palomar Associates. Holland was paid a commission on that
transaction.
agreement was made between Holland and Bangle governing Holland's commissions for
selling houses in Sunset Manor, nor did Holland ever reach an understanding with Palomar
Associates in that regard. All 97 homes that were built in Sunset Manor were sold. It is
stipulated that Holland was directly responsible for the sale of 28 of them.
Holland based his right to recover against Bangle on two theories. First, he took the
position that he was entitled to recover a $400 commission for each of the 97 houses sold,
because of the express language of the exclusive listing agreement. Second, that, in any event,
he should be allowed a quantum meruit recovery for services performed. His case against
Palomar sought a quantum meruit recovery or, alternatively, that Palomar be bound by the
Holland-Bangle agreement of November 30, 1959, on the theory that Palomar had adopted
it.
2
The jury was instructed on each theory. By returning a verdict for Holland against Bangle
and Palomar in the amount of $38,800 (which figure equals $400 a house for 97 houses), it is
plain that the jury based its decision upon the exclusive listing agreement alone and rejected
any other basis for relief. The amount of the verdict cannot otherwise be explained. Our task,
therefore, is to decide whether the Holland-Bangle agreement of November 30, 1959, is
enforcible.
1. The exclusive listing statute. In 1955 the Nevada Legislature enacted NRS 645.320. It
reads: Every exclusive listing shall: 1. Be in writing. 2. Have set forth in its terms a definite,
specified and complete termination. 3. Contain no provision requiring the person signing such
listing to notify the real estate broker of his intention to cancel the exclusive features of such
listing after such expiration date. 4. Be signed by both the listing property owner or his duly
authorized representative and the listing agent or his duly authorized representative in order
to be enforcible.
____________________

2
It was also charged that Palomar had wrongfully Induced Bangle to breach his agreement with Holland, and
that Palomar and Bangle had conspired to preclude Holland from a recovery on the exclusive listing
agreement. Neither claim is supported by the record, and we will not enlarge this opinion by discussing them.
[Headnote 1]
The provision, in reality, is a statute of frauds limited to exclusive listing agreements for
the sale of real property. In Gifford v. Straub, 172 Wis. 396, 179 N.W. 600, the court in
considering a similar statuteone more sweeping in scope than NRS 645.320stated: The
statute was doubtless enacted for reasons similar to those which led to the enactment of the
statute of frauds. It was to prevent frauds and perjuries. Its enforcement will sometimes
protect brokers who have rendered valuable services too little appreciated. More often it will
protect owners from unfounded claims. It will tend to prevent the flood of litigation arising
out of misunderstandings between well-meaning persons.
[Headnotes 2, 3]
The Holland-Bangle agreement of November 30, 1959, does not contain a termination
date. The duration of Holland's exclusive agency is not specified. However, Holland suggests
that the omission has no significance. He argues that the statute does not apply to a
transaction involving property not yet acquired and subdivision homes not yet built, for there
is nothing to list. We reject this contention. We believe that property can be listed for sale
in anticipation of future ownership, and that the statutory language every exclusive listing
shall * * * embraces this circumstance as well as the case where a present owner of property
lists it for sale. Indeed, it seems to us that there may be a greater need for an exclusive listing
agreement to contain a definite termination date, when made in anticipation of property
acquisition and expected multiple sales, than where only a single transaction involving
presently owned property is embraced by the agreement. The opportunity for controversy may
be increased proportionately. The case before us points to the truth of this observation. The
absence of such a provision (among other things), appears to have contributed to the onset of
this litigation. Their respective rights were in limbo, instead of fixed, and controversy
developed. We hold that NRS 645.320 applies to the Holland-Bangle agreement and that
enforcement is precluded because of its failure to contain a definite termination date.
contain a definite termination date. Gifford v. Straub, supra; Elbinger Co. v. Meyer Mfg. Co.,
3 Wis.2d 202, 87 N.W.2d 807. As the agreement is not enforcible against Bangle, a fortiori a
claim against Palomar Associates based upon an adoption of that agreement must also fail.
3

2. Disposition of the appeal. Having determined that the judgment for $38,800 cannot
stand, for reasons already expressed, we turn to consider whether the cause should be
remanded for a new trial and the limitations, if any, to be imposed. The record shows
conclusively that Holland procured 28 buyers for homes in the subdivision and that sales to
those buyers were made. He is entitled to be compensated for the reasonable value of his
services rendered in procuring those purchasers.
4
However, on this phase of the matter, viz.,
quantum meruit, as a predicate for relief, we are constrained to treat Bangle and Palomar
Associates differently.
[Headnote 4]
Before the enactment of NRS 645.320 we recognized that a property owner could be found
liable upon quantum meruit for the commission of a real estate broker to whom an oral
exclusive listing was given. Close v. Redelius, 67 Nev. 158, 215 P.2d 659. Relying upon that
opinion Holland contends that, should we declare his exclusive listing agreement with Bangle
unenforcible (which we have done), nonetheless quantum meruit relief is available to him. He
should be treated simply as a broker who had performed services for Bangle and should be
compensated. On the other hand, Bangle argues that, by passing the exclusive listing law in
1955, the legislative intent was to forbid any recovery by a broker who had been granted an
exclusive right to sell, unless the statutory requirements are fully met.
____________________

3
In any event the record is clear that Palomar never adopted the Holland-Bangle agreement. Palomar
consistently refused to agree to pay Holland more than $200 a house. Holland's insistence upon a $400 per house
commission culminated in this litigation.

4
Indeed, the court instructed the jury, in substance, that if a liability was found on quantum meruit, Holland's
compensation would be limited to the reasonable value of services rendered in procuring the 28 purchasers. Had
the jury imposed a quantum meruit liability, its verdict would necessarily have been for a lesser amount.
broker who had been granted an exclusive right to sell, unless the statutory requirements are
fully met. Each argument is persuasive. However, the weight of case authority construing
similar statutes precludes a quantum meruit recovery reasoning that, if the broker were
entitled to obtain the value of services, the statute would not have the effect intended and the
legislative purpose would be frustrated. Restatement, Agency 2d 468(2);
5
Annot., 41
A.L.R.2d 905; Restatement, Contracts & 355(3).
6
We choose to adopt this view. It seems to
us that the purpose of NRS 645.320 is best served by denying any relief to a broker or
salesman, who claims an exclusive agency to sell, unless the requirements of the statute are
complied with. We therefore conclude that, as to Bangle, the judgment below must be
reversed, with direction to enter judgment in Bangle's favor.
[Headnote 5]
The Holland quantum meruit claim against Palomar Associates is a different matter. No
express agreement (exclusive agency or otherwise) was ever made between them. Therefore
NRS 645.320 does not bar Holland from recovering the reasonable value of his services from
that defendant if the requisites of a quantum meruit claim are present. Though it is true that
Holland and Palomar were never able to reach an agreement as to the amount of Holland's
compensation (Palomar being willing to pay a commission of $200 a house and Holland
insisting on the $400 figure specified in his contract with Bangle), it is equally true that
Holland performed valuable services for Palomar with the latter's knowledge and
acquiescence. As heretofore stated, it is stipulated that Holland was directly responsible for
the sale of 2S homes.
____________________

5
Restatement, Agency, supra: If a statute provides that a person employing another for a specified purpose
shall not be liable to the other for compensation although the other renders the promised performance, unless the
employer has signed a memorandum in writing, a person has no duty to pay to another whom he orally employs
for such purpose either the promised compensation or the reasonable value of services rendered. See
Restatement comment on this subsection.

6
Restatement, Contracts, supra: The remedy of restitution is not available if the statute that makes the
contract unenforcible so provides, or if the purpose of the statute would be nullified by granting such a remedy.
Holland was directly responsible for the sale of 28 homes. In these circumstances it is
appropriate to imply a promise by Palomar to pay the reasonable value of those services. W.
Ross Campbell Co. v. Herbert's of Los Angeles, 110 Cal.App. 244, 293 P. 805; cf. Whitman
v. Brandis, 78 Nev. 320, 372 P.2d 468.
The judgment below is reversed and the case remanded with the direction to enter
judgment in favor of Bangle and against Holland; and with the further direction that a new
trial be granted Holland against Palomar Associates limited to the single issue of the
reasonable value of Holland's services in procuring the purchasers of 28 homes in the Sunset
Manor Subdivision.
____________
80 Nev. 337, 337 (1964) Wilmurth v. District Court
BENNIE WILMURTH and MARY ANN WILMURTH, Petitioners, v. THE FIRST
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, The Honorable RICHARD
L. WATERS, JR., District Judge, Respondent.
No. 4752
June 22, 1964 393 P.2d 302
Original petition for a writ of mandamus.
Proceeding to compel lower court to vacate pre-trial order on ground that petitioners had
not participated in pre-trial conference. The Supreme Court, Badt, C. J., held that mandamus
did not apply, where failure to participate was due to petitioners' willful absence from
conference after due notice, due to their incorrect claim that lower court had been divested of
jurisdiction by appeal from order dismissing action as to another party.
Petition denied and proceedings dismissed.
Bradley & Drendel, of Reno, for Petitioners.
General, Carson City, for Respondent.
1. Mandamus.
Mandamus will not lie to review discretionary acts of trial court.
Attempted appeal from nonappealable order does not divest lower court of jurisdiction.
3. Trial.
Pre-trial order providing that it should govern course of trial unless modified to prevent injustice
permitted party to apply to court at trial for modifying order. NRCP 16.
4. Mandamus.
Mandamus did not apply to compel lower court to vacate pre-trial order on ground that petitioners had
not participated in pre-trial conference, where failure to participate was due to petitioners' willful absence
from conference after due notice, due to their incorrect claim that lower court had been divested of
jurisdiction by appeal from order dismissing action as to another party. NRCP 16.
OPINION
The petition for a writ of mandate now before the court raises
1
the following question:
Will the remedy of mandamus lie to compel the respondent court to vacate a pre-trial order
made by it, on the ground that petitioners had not participated in the pre-trial
conferencesuch failure to participate being the willful absence of petitioners from the
pre-trial conference after due notice thereof. (Counsel for petitioners herein, as counsel for
plaintiffs in the main action then pending in the respondent court, had willfully absented
themselves from the pre-trial conference for the sole reason that they considered the
respondent court to have been divested of jurisdiction by reason of a pending appeal to this
court from the lower court's order dismissing the action as to the State of Nevada, named as
a defendant therein.)
____________________

1
The respondent's motion to dismiss the petition raises the same question.
action as to the State of Nevada, named as a defendant therein.)
The action below was commenced by the Wilmurths against the state and Jules Magnette,
director of the Nevada State Hospital, for the wrongful death of the Wilmurths' child. On
June 10, 1963, pursuant to motion, the court dismissed the action as to the State of Nevada
under the doctrine of sovereign immunity, and the action continued with Magnette as the
primary party defendant.
2

On November 7, 1963, the plaintiffs filed a notice of appeal from the order of the court
dismissing the state as a party defendant and notified the trial court thereof.
On December 9, 1963, the date set for pre-trial conference, counsel for plaintiffs failed to
appear, nor did they notify the trial court or counsel for defendants that they would make no
appearance. Pursuant to direction of the trial court, counsel for defendants prepared a pretrial
order and submitted it to the trial court. On December 18, 1963, the trial court signed the
pre-trial order. The order provided that counsel could file objections or propose modifications
within five days.
3

On December 13, 1963, subsequent to the pre-trial conference but prior to entry of the
pre-trial order, this court dismissed the plaintiffs' appeal from the order dismissing the State
of Nevada as a party defendant, on the ground that the order dismissing the State of Nevada
was not a final judgment and therefore was not appealable. Wilmurth v. State, 79 Nev. 490,
387 P.2d 251 (1963).
On December 27, 1963, plaintiffs moved to vacate the pre-trial order on the ground that
the trial court had no jurisdiction over any of the matters in the case during the period the
appeal in Wilmurth v. State, supra, was pending.
____________________

2
The state remained in the case as secondarily liable as surety on Magnette's bond if judgment went against
Magnette. Hill v. Thomas, 70 Nev. 389, 270 P.2d 179.

3
The pre-trial order recited the nature of the action, the admitted facts, the disputed issues of fact and the
issues of law involved, and permitted the defendants to amend their answer in certain minor respects.
On February 21, 1964, the trial court denied plaintiffs' motion to set aside the pre-trial
order.
On March 16, 1964, the plaintiffs filed objections to the pre-trial order. The trial court
rejected the objections on April 20, 1964.
Plaintiffs then filed their petition for a writ of mandamus to command the trial court to
vacate, alter or amend its pre-trial order in conformity with plaintiffs' motions and objections.
This court issued its order to show cause why the writ should not issue. The respondent then
moved to dismiss plaintiffs' petition for writ of mandamus.
[Headnote 1]
(1) It has long been the law in this state that mandamus will not lie to review discretionary
acts of the trial court. Pinana v. District Court, 75 Nev. 74, 334 P.2d 843; State v. McFadden,
46 Nev. 1, 205 P. 594; State v. District Court, 40 Nev. 163, 161 P. 510; State v. Curler, 26
Nev. 347, 67 P. 1075; Hoole v. Kinkead, 16 Nev. 217; State ex rel. Hetzel v. Board of
Commissioners of Eureka County, 8 Nev. 309; State v. Curler, 4 Nev. 445.
In State v. McFadden, supra, this court distinguished such cases as State v. Murphy, 19 Nev.
89, 6 P. 840, and Floyd v. District Court, 36 Nev. 349, 135 P. 922, 4 A.L.R. 646, and Roberts
v. Second Judicial District Court, 43 Nev. 332, 185 P. 1067.
4

[Headnote 2]
(2) But petitioners contend that their pending appeal from the order dismissing the State of
Nevada divested the trial court of jurisdiction. This may ordinarily be so {cf.
____________________

4
In State v. Murphy the court held that the general rule had no application to the determination of a
preliminary question relating to the settlement of a statement on motion for new trial under the old practice. The
petitioners had in the main case prepared a statement on motion for new trial, and the defendants in that case had
submitted proposed amendments. Leonard, J., speaking for the court, said: But it is well settled that if the judge
erroneously refuses to settle the statement or bill, a writ of mandamus will be awarded to compel the settlement,
not in any particular way, but one way or the other. * * * [T]he general rule * * * does not apply to them.
(cf. Miller v. United States, 7 Cir., 114 F.2d 267), but is not so in the case of an attempted
appeal from a nonappealable order. Resnik v. La Paz Guest Ranch, 9 Cir. 1961, 289 F.2d
814; Smith v. Insurance Company of North America, M.D. Tenn. 1963, 213 F.Supp. 675.
(3) Petitioners contend that the pre-trial conference and the pre-trial order emanating
therefrom were void, because the pre-trial conference was held in the absence of counsel for
petitioners. For this they rely on Rule 16. It is conceded by petitioners that their absence
from the pre-trial conference was willful and was based upon the contention above disposed
of that their appeal from the order dismissing the State of Nevada as a party had divested the
court of jurisdiction to take any further steps in the action. This contention, as we have seen,
is without merit. Petitioners contend that Rule 16 contemplates a pre-trial conference only in
the case of the presence of the attorneys for all the parties. But where a pre-trial conference
has been called and counsel have due notice thereof and counsel for one of the parties
willfully and deliberately abstains from attending, it does not lie in his mouth to say that the
conference was held ex parte or that Rule 16 may be read as permitting counsel for any party
to prevent the holding of a pre-trial conference and to prevent a pretrial order, merely by
absenting himself.
[Headnote 3]
(4) Petitioners claim that they have no other remedy. However, it is to be noted that by the
terms of the pretrial order counsel for all parties were given five days to file objections or to
propose modifications thereof, and that in the absence of written objection or request for
modification, this order shall govern the course of the trial unless modified[
5
] by the court
to prevent manifest injustice. This followed the wording of Rule 16. So there still remained
to petitioners their right to apply to the court at the trial for an order modifying the pretrial
order. In addition to this, it has not been suggested that the pre-trial conference order or any
proceedings to correct or modify the order might not be reviewed on appeal from a final
judgment in the case.
____________________

5
Rule 16 reads, unless modified at the trial * * *.
to correct or modify the order might not be reviewed on appeal from a final judgment in the
case.
[Headnote 4]
(5) Despite the foregoing conclusions, at which we arrive without any considerable
difficulty, petitioners rely on Padovani v. Bruchhausen, 2 Cir. 1961, 293 F.2d 546, as
establishing the propriety of the writ of mandamus to review pre-trial orders and particularly
where the futility of an appeal was patent. Padovani is clearly distinguishable. On three
separate occasions the trial court ordered plaintiff to file a new statement supplying
deficiencies asserted by defendant. Eventually the court made an order for preclusion. The
circuit court referred to it as a kind of pre-pre-trial pleadingand special pleading at
thatbefore hearing or conference was ever reached. The action was one against Liggett &
Myers Tobacco Co. for damages for cancer of the larynx alleged to have occurred as a result
of smoking cigarettes manufactured by the defendant. The preclusion order made by the trial
court specifically precluded the plaintiff from offering at trial any evidence of lay witnesses,
except the plaintiff and his wife, any expert testimony, any exhibits, except three as named,
any evidence of damages, with certain exceptions, and any evidence on the issue of liability
in either negligence or breach of warranty. It was conceded that these preclusions removed all
basis of proof of plaintiff's claim and that the trial could have only one outcome, namely,
judgment for the defendant. The pre-trial order in the instant case was not a preclusion order
and would not have the inevitable effect of the preclusion order in Padovani. There is no clear
showing in Padovani that the availability of mandamus as a remedy was challenged and this
was not discussed by the court other than to say it would avoid delay and would substantially
reduce the burden on the parties since an ultimate reversal was indicated. However, if, as
petitioners seem to indicate, there is a complete analogy between the pre-trial order in the
instant case and the preclusion order in Padovani and if Padovani can then be said to approve
the issuance of a writ of mandamus for purposes of review of a pre-trial order, then we
should be compelled to reject the rule of Padovani as contrary to the rule in this
jurisdiction.
then we should be compelled to reject the rule of Padovani as contrary to the rule in this
jurisdiction.
The petition for a writ of mandamus is denied and the proceedings are dismissed.
____________
80 Nev. 343, 343 (1964) Nevada Credit Rating Bureau v. Williams
NEVADA CREDIT RATING BUREAU, INC., Appellant, v. ISAAC N. WILLIAMS,
also Known as IKE WILLIAMS and I. N. WILLIAMS, Respondent.
No. 4722
June 25, 1964 393 P.2d 618
Action upon account stated. The trial court entered judgment for defendant, and appeal
was taken. The Supreme Court, McNamee, J., held that evidence sustained finding that no
account stated had been effected as to services and merchandise rendered for and sold to
defendant by assignor of plaintiff, that indebtedness due plaintiff had been incurred at request
of assignor with payment to be made by future deductions from money defendant would
receive from assignor for work, that contract between assignor and defendant was executory
and presently binding and that defendant had not breached it.
Affirmed.
Robert S. Spooner, of Ogden, Utah, and Carl F. Martillaro, of Carson City, for Appellant.
Daniel R. Walsh, of Carson City, for Respondent.
Account Stated; Contracts.
Evidence sustained findings that no account stated had been effected as to services and merchandise
rendered for and sold to defendant by plaintiff's assignor, that indebtedness due plaintiff had been incurred
at request of assignor with payment to be made by future deductions from money defendant
would receive from assignor for work, that contract between assignor and defendant
was executory and then binding and that defendant had not breached it.
made by future deductions from money defendant would receive from assignor for work, that contract
between assignor and defendant was executory and then binding and that defendant had not breached it.
OPINION
This is an action upon an account stated in the sum of $4,287.03 for services and
merchandise rendered and sold to respondent by John Aden, assignor of appellant.
Respondent's answer admits that he received services and merchandise from Aden, but denies
that any indebtedness therefor is now due and owing. As an affirmative defense he alleges
that the indebtedness due plaintiff was incurred at the request of Aden so that respondent
might put certain equipment in operational condition and do work for John Aden; that it was
agreed between the parties that payment therefor was to be made by future deductions for
money respondent would be entitled to from Aden for work to be performed by respondent
for Aden; that Aden agreed to furnish respondent with enough work to pay for any
indebtedness; that John Aden, although able, has not offered to let respondent do said work
but, on the contrary, has hired other people to perform the same services; that respondent was
at all times and now is ready, willing, and able to perform his part of said agreement; and that
no demand has been made on respondent for payment of any indebtedness prior to the
commencement of this action.
The trial court found that no account stated was ever effected between the parties expressly
or by implication; that the affirmative allegations and affirmative defense contained in
respondent's answer are true; that the contract between Aden and respondent is executory, is
presently binding on both parties, and that respondent has not breached the contract.
Judgment was entered in favor of the respondent and appeal is from the judgment.
The trial court's findings are supported by competent evidence consisting not only of the
testimony of respondent, but also of the testimony of John Aden.
evidence consisting not only of the testimony of respondent, but also of the testimony of John
Aden. Its conclusion that nothing is due and owing appellant from respondent therefore is
proper.
Affirmed.
____________
80 Nev. 345, 345 (1964) Dzack v. Marshall
CHARLES DZACK and STEVEN DZACK, dba DZACK MOTOR SALES, Petitioners, v.
THE HONORABLE GEORGE E. MARSHALL, Judge of the Eighth Judicial District
Court of the State of Nevada, Respondent.
No. 4746
June 25, 1964 393 P.2d 610
Original proceeding in certiorari or, in the alternative, mandamus.
The Supreme Court, McNamee, J., held that where liability of petitioners who were
defendants in automobile accident case depended entirely upon doctrine of respondeat
superior, matter of agency was positively denied under oath and plaintiff admitted having no
knowledge or proof of agency, it was duty of district court to enter summary judgment in
favor of defendants and peremptory writ of mandamus would issue requiring court to dismiss
action.
Writ of mandamus granted.
Singleton and DeLanoy, and Tex A. Jemison, of Las Vegas, for Petitioners.
Foley Brothers, of Las Vegas, for Respondent.
1. Discovery.
By virtue of failure of plaintiff to respond to request for admissions, matters contained therein were
deemed admitted. NRCP 36(a).
2. Judgment.
Upon motion for summary judgment, court was required to accept admissions resulting from failure of
plaintiff to respond to request for admissions together with affidavits of petitioners in support of motion
and to disregard unverified complaint. NRCP 30(b), 36(a), 56(e).
No appeal lies from order denying a motion for summary judgment. NRCP 30(b), 36(a), 56(e).
4. Mandamus.
Fact that if judgment were rendered against petitioners after a trial they could appeal and have denial of
their motion for summary judgment reviewed did not preclude issuance of writ of mandamus requiring
dismissal. NRS 34.160, 34.170; NRCP 56(e).
5. Mandamus.
Mere fact that other relief may be available does not necessarily preclude remedy of mandamus.
6. Judgment; Mandamus.
Where liability of petitioners, who were defendants in automobile accident case, depended entirely upon
doctrine of respondeat superior, matter of agency was positively denied under oath and plaintiff admitted
having no knowledge or proof of agency, it was duty of district court to enter summary judgment in favor
of defendants and peremptory writ of mandamus would issue requiring court to dismiss action. NRCP 11,
56(e).
OPINION
This is an original proceeding for a writ of review or in the alternative a writ of
mandamus.
It appears from the petition herein that one Darlene Abbey filed in the respondent court an
action for damages. She alleges on information and belief in her amended complaint that on
January 31, 1960 she was injured as a result of the negligence of Robert A. Jaris in driving an
automobile owned by petitioners Dzack, as their agent and with their permission. The
amended complaint was not verified.
Petitioners filed their answer to the amended complaint in which they denied that Jaris was
their agent and was driving the automobile with their permission. Thereafter they filed a
motion for summary judgment based upon the affidavits of petitioners, and upon the failure
of Darlene Abbey to answer petitioners' request for admissions.
failure of Darlene Abbey to answer petitioners' request for admissions. Darlene Abbey filed
no counter affidavit. The trial court denied the motion for summary judgment.
It appears from the affidavits in support of the motion for summary judgment that Robert
A. Jaris was not an agent of either of the petitioners, nor did he have their permission to drive
the automobile on January 31, 1960.
Darlene Abbey under the demand made to her pursuant to NRCP 36(a) was requested to
admit:
1. That she has no personal knowledge that on January 31, 1960 nor at any time during
the month of January, 1960 nor the month of December, 1959, that defendant Robert A. Jaris
was an agent or employee of Charles Dzack or Steven Dzack or Charles Dzack and Steven
Dzack doing business as Dzack Motor Sales.
2. That she has no documentary evidence that during the aforesaid period defendant
Robert A. Jaris was an agent or employee of Charles Dzack or Steven Dzack or Charles
Dzack and Steven Dzack doing business as Dzack Motor Sales.
3. That she knows of no witness who would testify that during the aforesaid period
Robert A. Jaris was an agent or employee of Charles Dzack or Steven Dzack or Charles
Dzack and Steven Dzack doing business as Dzack Motor Sales.
[Headnote 1]
By virtue of the failure of Darlene Abbey to respond to the said request for admissions, the
matters contained therein are deemed admitted. NRCP 36(a).
[Headnote 2]
It was incumbent upon the respondent court, therefore, to accept such admissions together
with the affidavits of petitioners in support of the motion for summary judgment, and to
disregard the unverified complaint. Franktown Creek Irrigation Company v. Marlette Lake,
77 Nev. 348, 364 P.2d 1069; NRCP 56(e).
In denying the motion of petitioners for summary judgment, the respondent court forces
the petitioners into expensive pre-trial procedures (they have already been served with a
notice for the taking of their depositions in Las Vegas, Nevada, which would require them
to come from the State of Illinois), as well as additional attorney fees and expenses
incidental to a trial, including additional traveling expenses.
been served with a notice for the taking of their depositions in Las Vegas, Nevada, which
would require them to come from the State of Illinois), as well as additional attorney fees and
expenses incidental to a trial, including additional traveling expenses. Respondent's motion
pursuant to NRCP 30(b) for a protective order forbidding the taking of depositions until
Darlene Abbey tendered petitioners the necessary travel expenses from Illinois to Las Vegas,
Nevada, was denied.
[Headnote 3]
No appeal lies from an order denying a motion for summary judgment. Smith v. Hamilton,
70 Nev. 212, 265 P.2d 214.
We are thus faced with the question whether petitioners are entitled to an extraordinary
writ of either certiorari or mandamus. Because we have concluded that they are entitled to
relief in these proceedings and that mandamus will furnish the necessary relief, we will
consider the propriety of issuing this writ only.
[Headnote 4]
NRS 34.170 provides that the writ of mandamus shall be issued in all cases where there is
not a plain, speedy and adequate remedy in the ordinary course of law. Under this section
respondent first contends that mandamus is not available here, because, if a judgment is
rendered against petitioners after a trial, they would have the remedy of an appeal therefrom
and the action of the trial court in denying the motion for summary judgment could then be
reviewed.
[Headnote 5]
The mere fact that other relief may be available does not necessarily preclude the remedy
of mandamus. Armstrong v. State Board of Examiners, 78 Nev. 495, 376 P.2d 492.
In Bowler v. Vannoy, 67 Nev. 80, 215 P.2d 248, although petitioners could have sought
relief in a replevin action, this court granted them relief by mandamus, because otherwise
expensive and prolonged litigation would probably have resulted.
This first contention of respondent is therefore rejected.
It is next contended that mandamus will not lie to review discretionary acts of the trial
court. It is true that we have repeatedly so held. Wilmurth v. District Court, 80 Nev. 337, 393
P.2d 302.
NRS 34.160 however provides that the writ of mandamus may issue to compel the
performance of an act which the law especially enjoins as a duty resulting from an office.
NRCP 56(e) provides that affidavits supporting and opposing a motion for summary
judgment shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to testify to
the matters stated therein. It further provides as follows: When a motion for summary
judgment is made and supported as provided in this rule, an adverse party may not rest upon
the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that there is a genuine issue for
trial. If he does not so respond, summary judgment, if appropriate, shall be entered against
him.
[Headnote 6]
We have concluded that where it is shown that the liability of a defendant in a tort action
depends entirely upon the doctrine of respondeat superior and the matter of the agency is
positively denied under oath and the plaintiff admits having no knowledge of the agency or of
any documentary evidence which would tend to show the agency, and no knowledge of any
witness who would testify to such agency, under such circumstances NRCP 56(e) makes it
the duty of the district court to enter summary judgment in favor of such defendant. Its act
therefore in ruling on a motion for summary judgment under these circumstances is not
discretionary.
Under NRCP 11 the signature of an attorney to a complaint constitutes a certificate by him
that to the best of his knowledge and belief there is good ground to support the allegations
therein contained.
to support the allegations therein contained. The action filed by Darlene Abbey was
commenced sometime prior to November 26, 1963.
1
The request for admissions by Darlene
Abbey was served January 22, 1964. It is apparent that during the long interval between the
filing of the original complaint and January 22, 1964 the knowledge which either she or her
attorneys had at the time of the commencement of the action relating to the allegation of
agency proved to be unfounded, and that neither she nor her attorneys have been able to
discover new evidence relating thereto. In view of the positive denial under oath of such
agency and the said admissions the nonexistence thereof must be assumed. Petitioners
therefore could not be liable for the alleged negligence of Jaris.
It is ordered that a peremptory writ of mandate issue requiring respondent court to dismiss
said action against petitioners.
Badt, C. J., concurring:
Our brother Thompson feels that NRCP 56(e) quoted in part in the prevailing opinion, is
deprived of its mandatory character through the use of the clause if appropriate. The final
sentence of the section reads as follows: If [an adverse party] does not so respond, summary
judgment, if appropriate, shall be entered against him. He supports this by two articles from
the Harvard Law Review.
1a
There are apparently no cases directly in point upon the view
taken either by the prevailing opinion or the dissenting opinion that follows.
The clause if appropriate may apply in a myriad of cases. To say that it means, if the
trial court in the exercise of its discretion finds the motion, or the remedy, or the rule, or the
statute, or whatnot, appropriate, is to stretch it beyond its clear connotation. The law review
article relied upon in the dissenting opinion clearly indicates that if the moving party has
supported his motion for a summary judgment to the point of showing that the issue is
sham, the mandatory language of NRCP 56{e) becomes effective.
____________________

1
It was represented to the court at the oral argument that the original complaint therein was filed
approximately three years before the amended complaint.

1a
We appreciate the persuasive effect of the article written by a reporter to the advisory committee on civil
rules.
article relied upon in the dissenting opinion clearly indicates that if the moving party has
supported his motion for a summary judgment to the point of showing that the issue is sham,
the mandatory language of NRCP 56(e) becomes effective. It also indicates that when only a
plausible case for the summary judgment appears and when it appears likely that more may
come out upon a trial, the mandatory effect of the statute is not effective. The article further
admits, When the moving party has freshly demonstrated that his adversary's past assertions
are unsupported, the adversary may be concluded if he does nothing more. The situations
thus described appear in the present case by reason of the circumstances described in the
prevailing opinion. It is seldom that a case closer to a showing that the issue is sham is
presented. When such situation presents itself, I see no reason for prolonging the proceedings.
Nor do I see any danger that in granting mandamus we are unduly extending the scope of that
writ, but shall without doubt be consistent in denying mandamus which seeks to control
discretionary action of the trial court.
I dissent.
This is a run-of-the-mill personal injury suit. I find nothing in the nature of the
circumstances or the controlling law that justifies the extraordinary relief of mandamus. The
majority holds that the district judge was without discretion to deny summary judgment;
hence, mandamus is appropriate to force the entry of summary judgment. The opinion
appears to rest primarily upon the language of NRCP 56(e), When a motion for summary
judgment is made and supported as provided in this rule, an adverse party may not rest upon
the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that there is a genuine issue for
trial. If he does not so respond, summary judgment, if appropriate, shall be entered against
him.
This provision was recently introduced to the federal practice, {see amendment to
F.R.C.P. 56, effective July 1, 1963), to overcome a line of cases in the Third Circuit which
permitted the party opposing a motion for summary judgment to rest upon the averments
of his pleadings if they were not suppositious, conclusory, or ultimate.
practice, (see amendment to F.R.C.P. 56, effective July 1, 1963), to overcome a line of cases
in the Third Circuit which permitted the party opposing a motion for summary judgment to
rest upon the averments of his pleadings if they were not suppositious, conclusory, or
ultimate. Nevada copied the change, effective March 16, 1964. The words used in NRCP
56(e) do not strip the trial judge of discretion to either grant or deny summary judgment.
Indeed, the words if appropriate compel the conclusion that his discretion is not restricted.
A reporter to the Advisory Committee on Civil Rules, in writing about this particular
amendment, states, The current amendment states, consistently with rule 56(f), not that
summary judgment is necessarily to be granted when the moving party has made a convincing
case and the adversary fails to support his pleading with any proof, but rather that summary
judgment may be granted if appropriate.'
Some possible misunderstandings should be dispelled. A party opposing summary
judgment need not come forward in any way if the moving party has not supported his motion
to the point of showing that the issue is sham. The amendment introduces no change here.
Nor does it change the proposition that an issue whose decision turns on credibility of
witnesses is fitting for trial, not summary judgment. The amendment does not derogate from
the discretion of the trial judge to deny summary judgment, even though the papers make a
plausible case for it, when it appears likely that more may come out upon a trial.[
1
] The
amendment merely recognizes what is known of all, that a pleading, though put in with entire
good faith, may be based on information which under private investigation or discovery can
turn out to be inaccurate. When the moving party has freshly demonstrated that his
adversary's past assertions are unsupported, the adversary may be concluded if he does
nothing more. Kaplan, Amendments of the Federal Rules of Civil Procedure, 1961-1963 (II),
77 Harv.L.Rev. S01, S26, S27.
____________________

1
In the present case the depositions of the petitioners were pending when the motion for summary judgment
was denied.
Harv.L.Rev. 801, 826, 827. His view is shared by Professor Wright who says, And despite
all that may be shown, the court continues to have the power to deny summary judgment as
not appropriate,' if, in its sound judgment, it believes that for any reason the fair and just
course is to proceed to trial rather than to resolve the case on a motion. 69 Harv.L.Rev. 839,
854. I find no expression contra (except the holding in today's case) to those just mentioned.
On June 22, 1964, we decided Wilmurth v. District Court, 80 Nev. 337, 393 P.2d 302. We
there reiterated the well established law of this state that mandamus will not lie to review
discretionary acts of the trial court. The case now before us should be similarly treated. Of
course if a trial court, in the exercise of discretion, erroneously divests itself of jurisdiction to
proceed with the case, mandamus may be available. Floyd v. District Court, 36 Nev. 349, 135
P. 922; State v. Moran, 37 Nev. 404, 142 P. 534; LaGue v. District Court, 68 Nev. 125, 227
P.2d 436; Swisco, Inc. v. District Court, 79 Nev. 414, 385 P.2d 772. Those cases represent an
exception to the general rule reiterated in Wilmurth v. District Court, supra, and do not touch
the case before us. Here the trial court, in denying summary judgment, did not divest itself of
jurisdiction to proceed with the case. Nor does Thran v. District Court, 79 Nev. 176, 380 P.2d
297 (relied upon by petitioners), have any bearing on the problem before us. In Thran
mandamus was used to compel the district court to dismiss an action that was not brought to
trial within five years. There NRCP 41 (e) was under scrutiny. The five year dismissal
provision is mandatory. The language if appropriate contained in NRCP 56(e), with which
we are now concerned, is not to be found in NRCP 41 (e). I respectfully suggest that my
brothers have erroneously read 56(e). As a consequence, the scope of mandamus is enlarged
without justification.
Another equally cogent reason exists for refusing mandamus. The instant case (for reasons
already expressed) not only fails to meet NRS 34.160 (a writ of mandamus may issue to
compel the performance of an act which the law especially enjoins as a duty resulting from
office) but, in addition, offers no valid suggestion why there is not a plain, speedy and
adequate remedy in the ordinary course of law.
an act which the law especially enjoins as a duty resulting from office) but, in addition, offers
no valid suggestion why there is not a plain, speedy and adequate remedy in the ordinary
course of law. NRS 34.170. An order denying summary judgment is not appealable, mainly
because it is not a final judgment disposing of the controversy. The parties' rights and duties
are not finally decided by such an order. It is interlocutory in nature. The petitioners'
contention that they are not liable to the plaintiff in this case may be continually advanced
below as the case progresses, at pretrial [NRCP 16]; by motion for involuntary dismissal at
the close of the plaintiff's case (NRCP 41(b)); by motion for a directed verdict at the close of
the case (NRCP 50(a), if a jury trial); by a motion non obstante veredicto if the verdict is
adverse (NRCP 50 (b)); by motion for a new trial if the judgment is adverse (NRCP 59); and,
finally, by appeal (NRCP 72). In my view these procedures are plain, speedy and adequate. It
was never intended that this court, through the device of mandamus, should review a
discretionary ruling of a district judge which does not finally dispose of the controversy.
Otherwise, an interlocutory order of the kind before us would have been made appealable. I
would deny the writ.
____________
80 Nev. 354, 354 (1964) Ex Parte Alexander
In the Matter of the Application of WILLIAM B.
ALEXANDER for a Whit of Habeas Corpus.
No. 4758
June 25, 1964 393 P.2d 615
Original petition for writ of habeas corpus.
The Supreme Court, Badt, C. J., held that failure of murder indictment to allege that crime
was committed in state was fatal, and court never acquired jurisdiction, and its judgment was
void.
Peremptory writ granted.
Robert F. List, Carson City, for Petitioner.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Washoe
County, and Herbert F. Ahlswede, Chief Criminal Deputy, Washoe County, for Respondent.
1. Habeas Corpus.
Habeas corpus cannot be used to perform functions of appeal or writ of error, but can only review
questions going to jurisdiction of court.
2. Habeas Corpus.
Murder prosecution defendant could obtain relief on habeas corpus on ground that convicting court
lacked jurisdiction since indictment did not allege that crime had been committed within state, although
defendant had interposed no demurrer and raised point for first time on habeas corpus.
3. Indictment and Information.
Failure of murder indictment to allege that crime was committed in state was fatal, and court never
acquired jurisdiction, and its judgment was void. NRS 173.240, 173.310, 174.310.
4. Habeas Corpus.
Defendant's release on habeas corpus, on ground that judgment was void since court lacked jurisdiction,
would not preclude new indictment or information, or immediate rearrest of defendant, where it appeared
that offense had been committed, that there was probable cause to believe defendant had committed it, and
that it had been committed within state.
5. Criminal Law.
Acquittal or conviction by court having no jurisdiction is void, and is no bar to subsequent indictment and
trial by court which has jurisdiction.
OPINION
This is an original petition to this court for a writ of habeas corpus. Petitioner had
previously sought a writ of habeas corpus from the First Judicial District Court, Ormsby
County, Nevada, which was denied on December 18, 1962. On March 2, 1964, this court
dismissed Alexander's attempted appeal from the district court's denial of the writ. He then
initiated this proceeding.
[Headnote 1]
The petition was drawn by the petitioner in longhand and enumerates a number of alleged
errors committed by the trial court during his trial wherein he was found guilty of first
degree murder and sentenced to life imprisonment without possibility of parole.
by the trial court during his trial wherein he was found guilty of first degree murder and
sentenced to life imprisonment without possibility of parole. With the exception of the
jurisdictional question hereinafter discussed, none of the errors assigned by petitioner during
the course of his trial affected the jurisdiction of the trial court. The law is well settled in this
state that a writ of habeas corpus cannot be used to perform the functions of an appeal or a
writ of error but can only review questions going to the jurisdiction of the court. Ex parte
Sheply, 66 Nev. 33, 202 P.2d 882; Ex parte McKay, 63 Nev. 262, 168 P.2d 315; Ex parte
Davis, 33 Nev. 309, 110 P. 1131; Ex parte Ohl, 59 Nev. 309, 92 P.2d 976, 95 P.2d 994.
The ground to which we now devote our attention is that the indictment by the grand jury
charging petitioner with murder failed to allege that the murder was committed in the State of
Nevada, and that by reason of such failure the trial court never obtained jurisdiction of the
offense or of the petitioner. The indictment was in the following language:
INDICTMENT
Defendant, William Alexander, is accused by the Grand Jury of Washoe County, State of
Nevada, of a felony, to-wit: MURDER, committed as follows:
That the said defendant, on or about the 13th day of January, 1962, did wilfully,
unlawfully and feloniously, with malice aforethought, kill one CLYDE HAROLD STARR, a
human being, by hitting the said CLYDE HAROLD STARR on or about the head with a
blunt instrument, thereby inflicting mortal wounds upon him, the said CLYDE HAROLD
STARR, from which said mortal wounds the said CLYDE HAROLD STARR died within a
year and a day after the infliction of said mortal wounds, to-wit: On the 13th day of January,
1962.
No demurrer or other objection to or attack upon the indictment was made prior to the
filing of the present petition.
In State v. Chamberlain, 6 Nev. 257, the indictment for the crime of murder similarly
failed to allege that the crime occurred within the State of Nevada.
crime occurred within the State of Nevada. The trial court, on motion of the state, permitted
an amendment to the indictment to state the venue of the crime. The opinion does not indicate
that the defendant demurred to the indictment or objected to the amendment. Defendant
appealed from his conviction of second degree murder. This court held that an allegation of
the place where the crime occurred was a manifestly material allegation as much so as any
fact constituting the body of the offense itself, even though the statutory form of indictment
then used did not so require.
1
This court reversed the conviction, holding that such a material
allegation in a grand jury indictment cannot be supplied by the trial court.
In Houser v. District Court, 75 Nev. 465, 345 P.2d 766, 78 A.L.R.2d 1096, we granted
prohibition against the trial of the petitioners because the amended information did not charge
a public offense in stating that the petitioners did steal, take, and carry away the carcass of a
bovine animal, the personal property of another, with attempt to appropriate the same to their
own use. The defendants demurred, moved to quash the amended information, and to dismiss
the action on the ground that the amended information failed to allege that the value of the
carcass of the dead cow allegedly stolen was $100 or more, so that the offense of grand
larceny had not been alleged. This court, citing In re Waterman, 29 Nev. 288, 89 P. 291, 11
L.R.A.,N.S., 424, held that there can be no conviction for or punishment of a crime without
a formal and sufficient accusation; that, in the absence thereof, a court acquires no
jurisdiction whatever, and if it assumes jurisdiction such trial and conviction would be a
nullity * * *. A peremptory writ of prohibition was issued.
The rule requiring the allegation in the indictment that the crime occurred within the State
of Nevada has been followed in other jurisdictions, People v. Webber, 133 Cal.
____________________

1
The statute in effect at the time the indictment in the instant case was found by the grand jury and the form
of the indictment required thereby included a statement of the county and state where the crime was committed.
NRS 173.240, NRS 173.310.
133 Cal. 623, 66 P. 38; State v. Slater, 71 Idaho 335, 231 P.2d 424; People v. Sands, 40
Misc.2d 94, 242 N.Y.S. 2d 700 (1963). See Dippold v. Cathlamet Timber Co., 98 Ore. 183,
193 P. 909 (see also Annot., 59 A.L.R.2d 901), and other cases, all holding that where the
information fails to allege that the offense was committed in the state in question it fails to
allege facts sufficient to confer jurisdiction upon the court trying the case, and the failure
being fatal to the sufficiency of the information could not be cured by evidence tending to
show where the crime was committed.
[Headnote 2]
Respondent contends that the petitioner's failure to interpose a demurrer at the arraignment
and the fact that he raises the point here for the first time should defeat the issuance of the
writ, and cites State v. O'Flaherty, 7 Nev. 153; State v. Hughes, 31 Nev. 270, 102 P. 562;
State v. Raymond, 34 Nev. 198, 117 P. 17; and Ex parte Breckenridge, 34 Nev. 275, 118 P.
687. None of such cases is contrary to the rule above stated. NRS 174.310.
Respondent also relies on State v. Buralli, 27 Nev. 41, 71 P. 532, to the effect that where
the county and court have been properly described in the title, it may be assumed that the
grand jury in regular organization and attendance upon the court is necessarily one within
and for the county where the court is in session * * *. To say that such ruling governs the
present case is an erroneous application of the holding.
[Headnotes 3-5]
We are compelled to hold that the failure of the indictment to allege that the crime was
committed in the State of Nevada was fatal and that the district court never acquired
jurisdiction to try the case, and that its judgment was void. It is ordered that the petitioner be
discharged from custody. However, as it is apparent from the evidence that the homicide has
been committed and that there is probable cause to believe that petitioner is the one who
committed the homicide and that such homicide was committed within the State of Nevada,
the district attorney is not precluded from submitting the matter to another grand jury, or
in lieu thereof, from proceeding by filing an information, or from immediately re-arresting
the petitioner in contemplation of such charge.
district attorney is not precluded from submitting the matter to another grand jury, or in lieu
thereof, from proceeding by filing an information, or from immediately re-arresting the
petitioner in contemplation of such charge. An acquittal or a conviction by a court having no
jurisdiction is void; therefore, it is not a bar to subsequent indictment and trial by a court
which has jurisdiction over the offense. United States v. Sabella, 2 Cir. 1959, 272 F.2d 206;
United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Kepner v. United
States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114. See 16 Rutger's Law Review, 1961-62, 598.
____________
80 Nev. 359, 359 (1964) Briant v. Real Estate Commission
OTIS BRIANT, dba CACTUS REALTY, and CLEO BULLARD, Appellants, v. NEVADA
REAL ESTATE COMMISSION, Respondent.
No. 4728
June 29, 1964 393 P.2d 617
Appeal from judgment of the Eighth Judicial District Court, Clark County; John C.
Mowbray, Judge.
Proceeding for revocation of license of broker and suspension of licenses of two of his
salesmen. The real estate commission revoked the broker's license and suspended the
salesmen's licenses and the lower court affirmed. The broker alone appealed. The Supreme
Court held that issue not considered in district court would not be considered on appeal.
Judgment affirmed.
Babcock & Sutton, of Las Vegas, for Appellants.
Harvey Dickerson, Attorney General, of Carson City; and W. Bruce Beckley, Special
Deputy Attorney General, of Las Vegas, for Respondent.
80 Nev. 359, 360 (1964) Briant v. Real Estate Commission
Appeal and Error.
Issue not considered in district court would not be considered on appeal.
OPINION
Per Curiam:
In a proceeding under NRS 645.690 the Nevada Real Estate Commission revoked the
broker's license of Briant, and suspended the licenses of Bullard and Buckley, salesmen for
Briant. The district court affirmed the commission. Briant alone
1
appeals to this court,
challenging the constitutionality of NRS 645.630 which sets forth the grounds for revoking or
suspending licenses issued to real estate brokers and salesmen. The record fails to show that
this issue was raised below. Therefore, we decline to consider it now. Jenner v. City Council
of Covina, 164 Cal.App.2d 490, 331 P.2d 176; Johnston v. DeLay, 63 Nev. 1, 158 P.2d 547,
161 P.2d 350.
____________________

1
Buckley did not appeal. Bullard filed a notice of appeal, but later abandoned the matter.
____________
80 Nev. 360, 360 (1964) Ex parte Hoff
In the Matter of the Application of JAY ROBERT
HOFF, JR., for a Writ of Habeas Corpus.
No. 4756
June 29, 1964 393 P.2d 619
Original proceeding in habeas corpus.
The Supreme Court, Thompson, J., held that accused was not denied his constitutional
right to be represented by counsel at all critical stages of criminal proceeding against him
where he was without counsel at preliminary hearing, though his counsel at trial used
transcript of preliminary hearing in effort to impeach witnesses.
Writ denied.
80 Nev. 360, 361 (1964) Ex parte Hoff
Jerry Carr Whitehead, of Reno, for Petitioner.
Harvey Dickerson, Attorney General, and C. B. Tapscott, Deputy Attorney General, of
Carson City, for Jack Fogliani, Warden, Nevada State Prison.
1. Criminal Law.
Where accused did not have counsel at preliminary hearing and attorney has been later appointed or
retained in district court, a motion by such attorney for new preliminary hearing should be granted. NRS
174.130.
2. Criminal Law.
Accused was not denied his constitutional right to be represented by counsel at all critical stages of
criminal proceeding against him where he was without counsel at preliminary hearing, though his counsel
at trial used transcript of preliminary hearing in effort to impeach witnesses. NRS 174.130;
U.S.C.A.Const. Amend. 14.
3. Criminal Law.
That day set for preliminary hearing was vacated and earlier day assigned in absence of accused, If true,
would be within purview of harmless error statute absent any showing that he was prejudiced with respect
to any substantial right. NRS 169.110.
OPINION
[Headnote 1]
This is an original habeas corpus proceeding. The petitioner, an indigent, was convicted of
grand larceny in the district court. He now asks to be released from prison, contending that, as
he was without counsel at the preliminary hearing, his present confinement is illegal. Here, as
in Victoria v. Young, 80 Nev. 279, 392 P.2d 509, the petitioner mainly relies upon Hamilton
v. Alabama, 368 U. S. 52; Gideon v. Wainwright, 372 U. S. 335; and White v. Maryland, 373
U. S. 59. In Victoria v. Young, supra, we distinguished those cases and held that a
preliminary hearing in Nevada is not a critical stage of the state's criminal procedure,
primarily because an accused is not arraigned at that time (NRS 174.130; Pinana v. State,
76 Nev. 274, 352 P.2d 824; cf. Hamilton v. Alabama, supra); nor is a plea entered to the
charge (cf.
80 Nev. 360, 362 (1964) Ex parte Hoff
White v. Maryland, supra). However, in reaching that conclusion we did suggest that, where
there has been a preliminary hearing without counsel, the attorney later appointed (or
retained) in the district court should, by motion, request a new preliminary hearing if he
believes his client's rights to have been prejudiced by reason of that fact. We now further
suggest that, in the interest of precluding the possibility of prejudicial error (for one cannot
foresee how, and to what degree, the lack of counsel at a preliminary hearing may infect the
fairness of a later trialit may or it may not), such a motion by defense counsel, when made,
should be granted. In Victoria the suggested course was still open to the accused, for his
district court trial had not yet occurred. Here it is not. He has been tried and found guilty. We
must, therefore, decide whether, in the circumstances here present, the petitioner was denied a
fair trial in the district court because he was without counsel at the preliminary hearing.
[Headnote 2]
During the trial below, defense counsel used the transcript of the preliminary hearing in an
effort to impeach the testimony of certain state witnesses. Clearly, the opportunity to so use
the prior recorded testimony was to the defendant's advantage rather than to his prejudice. If
successful in his impeachment effort, the possibility of acquittal increased. If not successful,
he sustained no damage. Notwithstanding this fact, the petitioner argues that the use made of
the preliminary transcript would have been of greater value had the witnesses been subjected
to cross examination by competent counsel at the preliminary hearing. Perhaps this is so. We
presume that the aid of counsel is of value at all times to one accused of crime, even before a
preliminary hearing is held. Our recognition of counsel's value, however, does not mean that
his assistance is constitutionally required at all stages of the criminal proceeding.
We do not know the intended scope of the United States Supreme Court rulings to which
we have referred. It is clear that (a) the federal constitution's sixth amendment guarantee of
counsel was incorporated into the fourteenth amendment and made binding on the states
by Gideon; {b) that such guarantee extends to the critical stages of a criminal proceeding
{Hamilton); {c) that the entry of a plea at arraignment is a critical stage {Hamilton); {d)
and that the entry of a guilty plea when taken before a magistrate at a preliminary
hearing, which plea is later received in evidence at the trial, is a critical stage {White v.
Maryland).
80 Nev. 360, 363 (1964) Ex parte Hoff
the fourteenth amendment and made binding on the states by Gideon; (b) that such guarantee
extends to the critical stages of a criminal proceeding (Hamilton); (c) that the entry of a plea
at arraignment is a critical stage (Hamilton); (d) and that the entry of a guilty plea when taken
before a magistrate at a preliminary hearing, which plea is later received in evidence at the
trial, is a critical stage (White v. Maryland). Whether the cases were intended to have a
broader application, or merely portend a warning of what is yet to come, is beyond our
capacity to discern at this time. For the purposes of the case before us we know that the
petitioner, with the assistance of competent counsel, entered his plea of not guilty upon
arraignment in the district court. Nothing later occurred at his trial (cf. White v. Maryland,
supra) to impair the fairness of the trial. We therefore conclude that, in this case, the
petitioner was not denied his constitutional right to be represented by counsel at all critical
stages of the criminal proceeding against him.
Notwithstanding our holdings in Victoria v. Young, and this case, we urge the Nevada
Legislature to adopt laws providing for the appointment and compensation of counsel for
indigent defendants at the preliminary hearing stage of the proceeding against them.
[Headnote 3]
An additional reason is urged for discharging the petitioner. The day originally set for his
preliminary hearing (March 14, 1963) was vacated and the earlier date of March 12 assigned.
The rescheduling occurred in the absence of the petitioner. He claims to have been unaware
of this change until March 12 when he was taken to the justice's court for the hearing.
Whether this claim is true or false is not disclosed by the record. Assuming its truth, the
irregularity is not shown to have prejudiced the petitioner with respect to a substantial right.
Indeed, an attempt to show how, or in what manner, such change of hearing date may have
affected his right to a fair trial, was not made at any time during the proceedings below. This
kind of an irregularity is plainly one of the targets of the harmless error statute.
80 Nev. 360, 364 (1964) Ex parte Hoff
NRS 169.110; cf. Overton v. State, 78 Nev. 198, 370 P.2d 677. We hold that the irregularity
was harmless error in this case.
Writ denied.
____________
80 Nev. 364, 364 (1964) Adler v. Adler
EDWIN MYLES ADLER, Appellant, v. SUZANNE
LA FRANCE ADLER, Respondent.
No. 4730
July 24, 1964 394 P.2d 350
Husband appealed from two orders of the trial court denying his motion to modify alimony
provisions of divorce decree by reducing payments from $130 per week to $150 per month,
and granting wife's motion for allowance of attorney fees in the sum of $3,000. The Supreme
Court, Badt, C. J., held that trial court did not abuse its discretion in denying husband's
motion but that allowance of $3,000 fee to wife's counsel for services performed by them was
excessive and abuse of discretion.
Affirmed in part. Reversed in part.
Murray Posin, of Las Vegas, for Appellant.
G. William Coulthard and Franklin N. Smith, of Las Vegas, for Respondent.
1. Divorce.
Trial court did not abuse its discretion in denying husband's motion for modification of alimony, where at
time of divorce husband was receiving a salary of $22,500 as executive vice-president of a large shoe-store
chain, plus certain expenses and other benefits, and his gross annual income at time of hearing on his
motion was approximately $11,300, derived entirely from capital investments.
80 Nev. 364, 365 (1964) Adler v. Adler
2. Divorce.
Allowance of $3,000 attorney fee to wife for services in contesting husband's application for reduction of
alimony payments was excessive.
OPINION
This is an appeal from order of the trial court denying the appellant husband's motion to
modify the alimony provisions of a divorce decree of July 14, 1953, by reducing his alimony
payments from $130 per week to $150 per month. The appellant husband's motion was made
June 14, 1963.
1
The appeal is also from the court's order granting her motion for allowance
of attorney fees in the sum of $3,000.
2
The court also ordered the appellant to pay the costs
of reporting and transcribing the husband's deposition taken by the wife. It denied the wife's
application for an allowance of $250 for accountant's services.
Two issues are raised by the appeal: (1) did the lower court abuse its discretion in refusing
to modify its previous alimony award; (2) did the lower court abuse its discretion in allowing
respondent $3,000 for attorney fees.
The 1953 divorce decree, after awarding the payment to the wife of the sum of $1,000 and
alimony of $130 per week, specifically reserved jurisdiction in the district court to reduce
the provision for weekly alimony upon the defendant's application * * * and upon a showing
satisfactory to the court of substantial adverse change in the defendant's current income.
The parties had been married in 1947, and after six years of a childless marriage, were
divorced.
____________________

1
The respondent wife filed a counter-motion October 30, 1963, to increase the alimony provision from $130
per week to $150 per week. This motion was likewise denied, but the order denying the wife's motion is not
involved in this appeal.

2
The wife had asked for $5,000.
80 Nev. 364, 366 (1964) Adler v. Adler
years of a childless marriage, were divorced. The decree was entered, with reservation of
jurisdiction as worded above. At the time of the divorce the husband was receiving a salary of
$22,500 a year as executive vice-president of a large shoe-store chain, plus certain expenses
and other benefits. He also had income from investments, which investments were valued at
approximately $400,000. His employment was terminated June 1, 1962. Efforts to find
suitable employment proved fruitless because of his age (55). His gross annual income at the
time of the hearing of his motion was approximately $11,300, derived entirely from capital
investments.
The wife at the time of the hearing of the motion was 42 years old. (She was 26 years old
at the time of the marriage and 32 years old at the time of the divorce.) The husband
remarried in July, 1956. The wife never remarried. Apparently, despite the cessation of his
former salary, he has been able for the most part to continue his mode of living in a $35,000
co-op apartment on Fifth Avenue, New York. He sold his boat for some $2,000 and his
ranch-style house on Long Island has been listed for sale, with no bidders.
The wife lives in an apartment consisting of one room and bath, with meager kitchen
facilities, for which she pays $150 a month rent. She is a college graduate, with a Bachelor of
Arts degree in a French university and a Master of Arts degree from Mt. Holyoke College.
She is fluent in French, as well as English. She could undoubtedly qualify for gainful
employment. However, she had a number of operations involving hospitalization for
extended periods of time, which limited her capacity for work. The husband's net worth at the
time of the hearing was approximately the same as of the date of the divorce. His motion for a
reduction of alimony payments was made within six months of his actual reduction in salary.
The trial court could have felt that his unemployment was only temporary and that his
managerial experience of many years would indicate the probability of early gainful
employment. Much has been said by the courts with reference to the exercise of judicial
discretion.
80 Nev. 364, 367 (1964) Adler v. Adler
the exercise of judicial discretion. For what has been said in this jurisdiction it will be
sufficient merely to make a reference to a number of the cases. Toth v. Toth, 80 Nev. 33, 389
P.2d 73; Schmutzer v. Schmutzer, 76 Nev. 123, 350 P.2d 142; Goodman v. Goodman, 68
Nev. 484, 236 P.2d 305. See Folks v. Folks, 77 Nev. 45, 359 P.2d 92.
[Headnote 1]
We find no abuse of discretion in the trial court's denial of appellant's motion for
modification of alimony.
The allowance of a $3,000 attorney fee to the wife for services in contesting the husband's
application for a reduction of alimony payments is however another matter. The record shows
that the services of Nevada and New York counsel for the wife were (1) the drafting of the
wife's affidavit in opposition to the husband's motion and in support of her own motion
wherein she recited at length sundry injuries, illness, and resulting hospitalization. She then
recites her financial needs and her lack of money. (2) New York counsel's affidavit
supporting application for counsel fees, which indicates conferences with her husband's
attorneys, correspondence with plaintiff's Las Vegas attorney, assisting in drafting the wife's
affidavit, conferences with the plaintiff's accountant, and study of the husband's financial
data, taking of the husband's deposition in New York, extensive legal research into
defendant's claim of right to a reduction in alimony and reserved jurisdiction for plaintiff to
counterclaim for an increase in alimony, numerous conferences with plaintiff and others and
miscellaneous related services, which he approximated at 35 hours, which on this record we
cannot help but question. (3) An affidavit of a certified public accountant. His testimony
consisted in the main in analyzing the accounts and schedules of assets submitted by the
husband. (4) A one-page affidavit by Dr. F. R. De Luca who testified to the nature of the
injuries and hospitalization suffered by the wife as recited in her affidavit. (5) The affidavit of
another of the husband's attorneys, two pages long, which cites one New York trial court
authority. Nothing in particular was added by this affidavit.
80 Nev. 364, 368 (1964) Adler v. Adler
(6) The taking of the deposition of the husband at New York. The deposition, for the most
part, confirmed the financial accounts that had been voluntarily submitted by the husband.
The actual presentation of the husband's motion and the wife's opposition thereto, as well
as the wife's motion, was had in the chambers of the district judge at Las Vegas, Nevada, and
occupied no more than an hour, according to the statements of counsel. It consisted entirely of
the submission of the affidavits and the deposition above referred to and counsel's arguments.
[Headnote 2]
The record before the district court is the same as the record before this court, and this
court has the same opportunity to evaluate the services of counsel that the district court had.
Mortimer v. Pacific States Savings & Loan Co., Appeal of Badt, 62 Nev. 142, 162, 145 P.2d
733, 739. We are satisfied that an allowance of $3,000 as the fee to the wife's counsel for the
services performed by them was excessive and an abuse of discretion on the part of the trial
court.
The wife, as respondent, before filing her answer to the appellant's opening brief, filed her
motion in this court for an allowance of attorney fees in defending against the husband's
appeal. We deferred taking action on this motion pending argument on the appeal, but
considered the motion as looking to the attorney's prospective services, and are now of the
opinion that a fee should be allowed (which will include counsel's expense in traveling from
Las Vegas to Carson City for argument of the appeal) in the sum of $500.
The order denying the husband's motion for a reduction of alimony is affirmed. The order
of the lower court that the husband pay to the wife's attorneys for legal services rendered the
sum of $3,000 is hereby reversed, and the cause remanded with directions to set aside such
order and to enter an order allowing an attorney fee of $1,000. Such order, when entered, will
stand affirmed.
It is further ordered that appellant pay to respondent the sum of $500 for her attorney
fees in this court on the present appeal; otherwise no costs are allowed.
80 Nev. 364, 369 (1964) Adler v. Adler
the sum of $500 for her attorney fees in this court on the present appeal; otherwise no costs
are allowed.
____________
80 Nev. 369, 369 (1964) Moore v. Prindle
JULIETTE MOORE, Appellant, v. KATHERINE R.
PRINDLE and GEORGE E. WILKINSON, Respondents.
No. 4724
July 29, 1964 394 P.2d 352
Action wherein the trial court refused to grant relief from forfeiture clause of a land sale
contract, and the purchaser appealed. The Supreme Court, Badt, C. J., held, inter alia, that
under the evidence before the Supreme Court there was not a default but even if there had
been a default circumstances of case compelled equitable relief from forfeiture provisions of
contract which contained inadequate five-day notice provision where purchaser had acquired
substantial equity and because of intervening weekend purchaser had only two days to raise
amount demanded by notice and tendered amount necessary within reasonable time.
Reversed and remanded with instructions.
Oliver C. Custer, of Reno, for Respondents.
1. Contracts.
In determining which of two contracts was in effect, practical construction and interpretation of parties as
evidenced by their conduct is always persuasive, if not conclusive.
Conduct of parties revealed that second of two contracts for sale of premises was in effect where
purchaser considered it controlling and made reduced payments as required thereunder,
escrow agent was apparently under same impression as it accepted monthly
payments, gave notice of default and permitted removable deeds thereunder and
vendor gave notice taking advantage of reduced time provided for curing default
under second contract which met all technical requirements of modification.
it controlling and made reduced payments as required thereunder, escrow agent was apparently under same
impression as it accepted monthly payments, gave notice of default and permitted removable deeds
thereunder and vendor gave notice taking advantage of reduced time provided for curing default under
second contract which met all technical requirements of modification.
Evidence established that parties in modifying contract for sale of realty, entering into agreement
providing for reduced monthly payments and shortening of grace period provided for waiver of prior
delinquencies.
Failure of purchaser to comply with provisions of escrow instructions requiring her to deposit within
stated period sums necessary to bring current a note did not entitle vendor to declare default, where though
note holder had declared contract in default and recorded 90 day notice of sale such was due to escrow
holders' failure to apply payments as required by escrow instruction and recordation of notice threatened no
immediate loss of property.
Purchaser was not in default under terms of contract for failure to pay tax assessments where vendor
suffered no prejudice by fact that holder of deed of trust and note, the indebtedness under which purchaser
had assumed, had paid taxes and charged them against the deed of trust.
Equity will always strictly construe forfeiture provisions of contract, and forfeiture will be enforced only
when vendor has complied with every requirement and purchaser is in default.
Circumstances of case compelled equitable relief from forfeiture provisions of contract which contained
inadequate five day notice provisions where purchaser had acquired substantial equity, because of
intervening weekend, purchaser had only two days to raise amount demanded by notice and tendered
amount necessary within reasonable time. NRS 21.210, 107.080.
Purchase of property subject to contract of sale by another at half price was not an intervening
circumstance which would prevent equitable relief from forfeiture under circumstances.
OPINION
This case involves an appeal from a refusal to grant relief from a forfeiture clause of a land
sale contract.
On September 6, 1957, the appellant Moore contracted to buy certain improved real
property, a rooming house, from the respondent Prindle.
to buy certain improved real property, a rooming house, from the respondent Prindle. The
contract provided for a purchase price of $15,000 to be paid, $2,000 down, and 24
consecutive monthly payments of $125, followed by monthly payments of $225 until the
balance was paid, 7% interest on the declining balance. The buyer also agreed to assume an
indebtedness owed to Union Federal Savings & Loan Association, which was secured by a
first deed of trust. It further provided that time is of the essence, and in the event of a
default, all the payments would be considered as rent and liquidated damages, in effect a
forfeiture clause. The buyer was given a grace period of 35 days and there was to be a 10-day
written notice of default, during which time the default could be cured. The buyer also agreed
to pay the taxes and any assessments levied against the property. There were several other
important contract provisions which will be discussed in the course of the opinion.
The seller executed a deed to the buyer, and the buyer executed a quitclaim deed to the
seller. These deeds, together with escrow instructions, which embodied provisions of the
contract, were deposited with Pioneer Title, which was to act as escrow agent.
The buyer became delinquent in her monthly payments. In February of 1961 (the day of
the month does not appear in the record) the parties entered into a new contract evidenced by
new instructions to the escrow agent.
On August 15, 1961, Union Federal filed its notice of default. On October 11, 1961, the
seller, through the escrow agent, notified the buyer that unless the above-captioned account
has been brought current on or before October 16th (next Monday) it is the intention of Mrs.
Prindle to default your contract and thereby cancel this account. On October 16th Mrs.
Moore, the buyer, tendered $152, a monthly payment under the February, 1961, contract, to
the escrow agent. This tender was refused. The deeds were removed from the escrow agent's
possession by the seller Prindle on October 18th, and the escrow was canceled. Prindle
conveyed her equity in the property to respondent Wilkinson on October 20th.
Sometime between October 16th and October 23rd (record does not indicate when) the
escrow agent advised Mrs. Moore's counsel that the amount in default was $587.75. On the
latter date such counsel tendered a check for said sum. This tender was refused because the
escrow had been canceled by Prindle. On October 25th, 1961, the appellant filed her
complaint seeking to redeem said contract of sale and said premises upon payment to the
defendants the amount due thereon.
The trial court found that plaintiff was continually in default under the terms and
conditions of the original agreement because of her admitted failure to pay real estate taxes,
assessments, and monthly payments on time. The trial court did not consider that the
February, 1961, agreement was in effect,
1
and denied equitable relief. Moore appealed.
Appellant in effect urges two points in support of her appeal: (1) that she was not in
default; and (2) even if she were technically in default, the trial court was in error in not
affording her equitable relief against the forfeiture.
[Headnotes 1, 2]
In determining which contract is in effect the practical construction and interpretation of
the parties as evidenced by their conduct is always persuasive, if not conclusive. Reno Club v.
Young Investment Co., 64 Nev. 312, 182 P.2d 1011, 173 A.L.R. 1145; Flyge v. Flynn, 63
Nev. 201, 166 P.2d 539. Moore considered that the February, 1961, contract was controlling,
because her monthly payments thereafter were in the amount required by that contract rather
than the September, 1957, contract. The escrow agent was apparently under the same
impression because it accepted those monthly payments, gave notice of default pursuant to
the later contract, and allowed the deeds to be removed pursuant to the February, 1961,
contract.
____________________

1
This appears from its written decision holding the ORIGINAL AGREEMENT in full force and effect at all
times material hereto. However, in its formal conclusions of law the court concluded: That plaintiff's rights
and remedy are governed and determined exclusively by the September 6, 1957, contract of sale and the letter of
instructions dated February, 1961.
to the February, 1961, contract. Most important of all, Prindle, as evidenced by the October
11th notice, gave Moore five days in which to bring the account current, and justified the
removal of the deeds on October 18 on the authority of the February, 1961, contract. We must
reject Prindle's constantly reiterated contention that only the September, 1957, contract
remained in effect because of the obvious intent of the parties as evidenced by their conduct.
[Headnote 3]
(1) The February, 1961, contract meets all the technical requirements of a modification,
under which part of the contract of 1957 was left in effect and part was changed. The main
change benefiting Moore was to provide for smaller monthly payments ($152 in place of
$225). The date of the monthly payments was also extended from the 6th to the 15th of the
month. The consideration for such benefits was the shortening of the grace period of
payments from 35 days to 10 days and the shortening of the required default notice from 10
days to 5 days. This written modification of the 1957 contract was accompanied by an oral
agreement testified to by Moore and not denied by Prindle of a waiver of the December,
1960, and January, 1961, monthly payments. The details of the waiver were not definitely
explained but from our understanding of the circumstances the payment of the December,
1960, and January, 1961, installments was deferred without specific description of the extent
of the deferment, but Moore's testimony that Prindle simply desired that the contract was to
be kept current would indicate that this open-end contract was to remain effective until the
entire balance of principal and interest was made. This would include adding the December,
1960, and January, 1961, payments to the end of the contract.
2
Moore's testimony as to the
waiver of the December and January payments with Mrs. Prindle's only requirement that the
account thereafter be kept current satisfies us that the arrangement then made by the parties
likewise constituted a waiver of any prior delinquencies.
____________________

2
The parol evidence rule was not brought into question.
prior delinquencies. It is true that the modified instructions to the title company contained a
paragraph reading as follows:
It is further understood that the buyer will, within four months from the date hereof,
deposit with you such sums as are necessary to bring the payments on the note secured by the
Deed of Trust in favor of the Union Federal Savings and Loan Association current, that said
sums may be accepted by you in amounts equal to one or more payments, with penalties
which may be assessed by the Union Federal Savings and Loan Association.
It is to be noted that this paragraph is bare of any requirement for the making of payments
in addition to the monthly payments. Sums [such] as are necessary to bring the payments on
the note secured by the deed of trust * * * current would be provided, according to the
record, by less than two of the regular monthly paymentscertainly by four payments. When
we consider this provision in connection with the provision in the original contract and in the
original escrow instructions that remained intact, we find that the escrow holder was still
required to apply all payments as follows: first, to Union Savings interest; second, to Union
Savings principal; third, to Prindle interest; and fourth, to Prindle principal. It is further
confirmed by the last paragraph of the February, 1961, instructions to the effect that such
instructions were to be temporary in nature and that as soon as the payments on the Union
Federal Savings * * * note have been brought current a new agreement and supplementary
instructions would be prepared and delivered.
Perhaps more important is the following paragraph which remained intact in the
September, 1957, agreement:
You are further instructed that in the event of the buyer being in default in the payment of
any said moneys at the times specifically provided for the payment of the same as herein set
forth, and unless demand is made upon you for the return of the said deed to the seller, or to
her order, by reason of such default, then you shall be and are hereby authorized and
empowered to accept from the buyer such delinquent payments without any
authorization, written or otherwise, from either party to accept the same."
to accept from the buyer such delinquent payments without any authorization, written or
otherwise, from either party to accept the same.
The receipts signed by the escrow holder were all in evidencefirst, by means of a
passbook, and secondly, by means of separate receipts, all in accordance with the escrow
holder's practice and on forms supplied by it. These receipts show that from the time of the
February, 1961, agreement to and including August, 1961, the required monthly payments
aggregated $912; the aggregate of the monthly payments actually made was the sum of
$989.85.
Moore was current till August, 1961. At the time the notice of default was mailed on
October 11, 1961, the September payment was overdue and the October payment was due in
four days. The September payment was tendered on October 16, and that default was thereby
cured. The escrow agent wrongfully refused the payment. When the deeds were removed on
October 18 the October 15 payment was due but the grace period did not end until October
25th. Since Moore's counsel tendered more than enough money to meet the October payment
on October 23rd, this so-called delinquency was also cured. Moore was not in default in the
monthly payments on October 18th when the deeds were removed and the escrow canceled.
[Headnote 4]
But respondent calls our attention to the fact that the escrow instructions of February,
1961, above recited in full to the effect that Moore would in four months deposit the sums
necessary to bring the Union Savings note current were not complied with, and that under the
unaltered provisions of the September, 1957, contract any default would entitle Prindle
(subject to days of grace and notice of default) to withdraw her escrow deed and be under no
obligation to convey. She also calls attention to the fact that the Union Savings had declared
its contract in default and had recorded a 90-day notice of sale under statutory requirements
for foreclosure of a deed of trust. This contention, however, is defeated for two reasons. In the
first place, the Union Savings' action in recording its notice of default was not the result of
Moore's failure to make payments but the result of the escrow holder's failure to apply
these payments as required by the escrow instructions, first to the interest and principal
payments on the Union Savings' trust deed.
in recording its notice of default was not the result of Moore's failure to make payments but
the result of the escrow holder's failure to apply these payments as required by the escrow
instructions, first to the interest and principal payments on the Union Savings' trust deed. In
the second place, the Union Savings' recordation of its notice of default threatened no
immediate loss of the property. At any time within 90 days this could have been cured.
[Headnote 5]
The contention that Moore is in default because she did not pay the taxes and assessments
is also without merit. Neither the deed of trust to Union Federal or a copy of the deed is in the
record. While the court below seemed to rely on the fact that Prindle's notice of default was
justified by Moore's non-payment of taxes and assessments, the testimony of the escrow
agent's assistant manager was definitely to the fact that Union Federal simply paid the taxes
and added them to the balance due on its deed of trust. Its eventual notice of foreclosure sale
is not in the record. It is only brought to the court's notice by a letter dated October 11, 1961,
from the escrow agent to Prindle, saying it had been provided with notice of foreclosure,
and the escrow agent's assistant manager's testimony that the Union Federal notice of
foreclosure was recorded August 15, 1961. Nothing was said about the payment of taxes.
Apparently the Union Federal action was not based on the failure to pay the taxes. The
exhibits show that Prindle definitely and conclusively did not predicate her notice of default
on Moore's failure to pay the taxes. Prindle did not suffer any prejudice by reason of the fact
that Union Federal had paid the taxes and charged the same against its deed of trust.
[Headnote 6]
This court has indicated a land sale contract as a security device is permissible. Mosso v.
Lee, 53 Nev. 176, 295 P. 776; Canepa v. Durham, 62 Nev. 417, 153 P.2d 899, 155 P.2d 788.
However, a court of equity will always strictly construe such a contract when it contains a
forfeiture clause. The forfeiture will only be enforced when the seller has complied with
every requirement and the buyer is in default.
enforced when the seller has complied with every requirement and the buyer is in default.
Since we have found no actionable default, there can be no forfeiture.
(2) Because the record is in some confusion by reason of missing facts which would have
been helpful if supplied, and because counsel for the respective parties are directly in conflict
in their interpretation of what is shown by the record, and because the trial court did not have
the assistance of an accountant, and because, after all, the trial court did find that Moore was
in default, we must admit the possibility of error in the figures we have extracted from the
record.
3
In view of this possibility, we find it necessary to give our attention to the question
whether the trial court abused its discretion in adjudging a forfeiture rather than affording
equitable relief to the buyer.
We recognize the value to both sellers and buyers of real property in allowing the security
device used in this case. See 12 Kan.L.Rev. 475.
[Headnote 7]
Assuming that there was in fact a default, we hold the circumstances of this case, coupled
with the inadequacy of the 5-day-notice provision in the February, 1961, contract, cry out for
equitable relief. The legislature has provided lengthy notice or redemption periods for most
security devices.
4

The receipts and accounts in evidence show quite definitely Moore's very substantial
equity. On October 6, 1961, the balance of payment due Prindle was $6,700.71, and the
balance due Union Federal, $2,518.89. Subtracting the sum of these balances from the
$15,000 contract price shows Moore's equity as $5,780.40, over 38% of the total price. Moore
had also constructed an addition to the building.
____________________

3
For example, the escrow holder had no notation in its records of the waiver of the December, 1960, and
January, 1961, payments, nor of the fact that $75 had been paid by Moore to Prindle out of escrow. As these
three items were established in the evidence, they must be taken into consideration.

4
The period for redemption from a strict foreclosure is one year. NRS 21.210. The period of notice of sale
under a deed of trust is three months. NRS 107.080.
to the building. The case at bar presents a typical situation which illustrates how inadequate a
five days' notice can be. The letter sent on October 11th was not received until Thursday,
October 12th. October 16th, 1961, fell on a Monday, thus Saturday and Sunday were
unavailable to the buyer and the five days was in reality two days' notice. It is not
unreasonable to assume that a buyer who is behind in her payments may reasonably need
more than two days in which to raise the amount of money needed to cure the delinquency.
5

[Headnote 8]
Moore tendered the amount necessary to cure the default within a reasonable time. As was
said in the case of Mosso v. Lee, 53 Nev. 176, 295 P. 776, * * * there can be no doubt in this
age, even where time is of the essence of a contract to convey real estate, coupled with a
provision of forfeiture, but that a court of equity will grant relief from a default and a
declaration of forfeiture if the condition be subsequently performed, or tendered, without
unreasonable delay, where no circumstances have intervened that would render it unjust or
inequitable to give such relief. See also the authorities cited with approval in Mosso v. Lee,
supra. We do not deem the purchase of the property by Wilkinson at half price an intervening
circumstance which would prevent the application of the above language from Mosso v. Lee.
Moore offered to make Wilkinson whole.
Fully in accord with our conclusion that equity should have relieved Moore from the
forfeiture in this case is the decision of the United States Circuit Court of Appeals from the
Ninth Circuit in Ward v. Union Bond & Trust Company, 243 F.2d 476 (1957). In affirming
the relief from the forfeiture adjudged by the district court, the court of appeals said: "There
is no equitable principle which is more firmly established in American jurisprudence than
the premise that where a vendee has paid a considerable portion of the purchase price or
if the property has largely enhanced in value by reason of permanent improvements, or
otherwise, or if for any other reason it would be inequitable to grant a cancellation of the
contract, or refuse a defaulting vendee reasonable opportunity to cure his defaults, it is
within the inherent power of a court of chancery, independent of statute, to decree that
the property be sold by judicial sale with the view that the purchase price, expense of
litigation and sale shall first be paid, with the balance over, if any, to the vendee, thus
preserving, so far as is practicable, the respective equities of the vendor and the vendee."
____________________

5
Many states have by statute specifically provided grace periods before permitting forfeiture of installment
land contracts. Arizona has provided from 30 days to 9 months, depending upon the proportion of payments;
Iowa, 30 days; Louisiana, 45 days; Maryland, 30 days; Minnesota, 30 days; North Dakota, 1 year. The special
statutory sections are cited in Note 30, 12 Kan.L.Rev. 482 (May, 1964). Nevada has no such statute, but the
growing necessity for one is apparent.
There is no equitable principle which is more firmly established in American
jurisprudence than the premise that where a vendee has paid a considerable portion of the
purchase price or if the property has largely enhanced in value by reason of permanent
improvements, or otherwise, or if for any other reason it would be inequitable to grant a
cancellation of the contract, or refuse a defaulting vendee reasonable opportunity to cure his
defaults, it is within the inherent power of a court of chancery, independent of statute, to
decree that the property be sold by judicial sale with the view that the purchase price, expense
of litigation and sale shall first be paid, with the balance over, if any, to the vendee, thus
preserving, so far as is practicable, the respective equities of the vendor and the vendee.
In Howard v. Bar Bell Land & Cattle Co., 81 Idaho 189, 340 P.2d 103 (1959), the court
cited with approval Ward v. Union Bond & Trust Company, but came to a different
conclusion by reason of special circumstances foreign to the present case.
The case is remanded to the trial court for determination of the amount of money necessary
to make Wilkinson and Prindle whole, including legal interest. Upon the tendering of that
amount by Moore within 30 days from notice of such determination, Wilkinson must be
ordered to convey the property forthwith back to Moore, free of any encumbrances placed
thereon by Wilkinson.
The court below also entered judgment in favor of Wilkinson and against Moore in the
sum of $1,015.25 for rentals collected by Moore. From what has been said above, this
judgment is also reversed.
In the event that Moore does not tender the sums necessary under the final order of the
district court pursuant to this opinion within 30 days from notice thereof, then the judgment
of the court below will stand affirmed. No costs are awarded on this appeal.
____________
80 Nev. 380, 380 (1964) Weiler v. Ross
H. A. WEILER, Appellant, v. JOHN TOM ROSS, Special Administrator of the
Estate of JOHN R. ROSS, Deceased, Respondent.
No. 4736
September 11, 1964 395 P.2d 323
Appeal from judgment of the First Judicial District Court, Ormsby County; Richard L.
Waters, Jr., Judge.
Suit by creditor against estate. From a judgment of the lower court dismissing the claim,
the creditor appealed. The Supreme Court, Thompson, J., held that where creditor's claim was
properly filed against estate during course of its general administration and was rejected by
defendant as the general administrator, and suit upon rejected claim was commenced within
statutory time, incorrect designation in complaint of defendant as special administrator when
he was, in fact, general administrator, was inadvertence unrelated to merits of controversy
and the trial court should have permitted creditor to amend to cure mistake as to capacity in
which defendant was sued.
Judgment of dismissal modified, with directions.
Brian L. Hall, of Reno, for Appellant.
Laxalt, Ross & Laxalt, of Carson City, for Respondent.
1. Pleading.
Motion to amend may be made orally in open court in presence of counsel for adverse party and leave to
amend should be freely given when justice requires. NRCP 15(a).
2. Parties.
Where creditor's claim was filed against estate during course of its general administration, was rejected
by defendant as general administrator and suit upon rejected claim was thereafter commenced within
statutory time, incorrect designation in complaint of defendant as special administrator when he was, in
fact, general administrator, was inadvertence unrelated to merits of controversy and not prejudicial and the
trial court should have permitted creditor to amend to cure mistake as to capacity in which defendant was
sued. NRCP 15(a); NRS 140.040, subd. 3, 147.130, subd. 1.
80 Nev. 380, 381 (1964) Weiler v. Ross
3. Pleading.
Effect of lower court's refusal to rule upon a motion to amend is to deny such motion.
OPINION
In this case the district judge dismissed the suit of a creditor against an estate because the
complaint designated the defendant John Tom Ross as the special administrator of the estate
when, in fact, he was at that time the general administrator thereof.
1
Contemporaneously the
judge refused to rule upon the plaintiff's motion to amend to cure the mistake as to the
capacity in which the named defendant was sued. The dismissal was apparently based upon
NRS 140.040(3) which provides that in no case shall the special administrator be liable to an
action by any creditor on any claim against the estate, nor pay any claim against the
deceased. On this appeal the creditor does not challenge the dismissal. However, he does
claim that error occurred when the judge refused to rule on his motion to amend to reflect the
true capacity of the defendant. It is clear from the record that the creditor cannot start another
suit because of the bar of NRS 147.130(1) which requires suit upon a rejected claim to be
brought within 30 days after notice of rejection. Thus, if relief is not given by this court, the
creditor will be forever foreclosed from obtaining an adjudication of the merits of his claim.
[Headnotes 1, 2]
The trial judge stated that the creditor's motion to amend his complaint was untimely
and, for that reason, declined to rule.
____________________

1
Chronology: May 6, 1963, John Tom Ross appointed special administrator, and letters issued.
May 27, 1963, John Tom Ross appointed general administrator.
June 4, 1963, Letters of administration issued.
June 4, 1963, Notice to creditors (3 months).
August 13, 1963, Weiler filed creditor's claim against the estate.
September 9, 1963, Weiler claim rejected.
September 27, 1963, Notice of rejection mailed to Weiler.
October 25, 1963, Present suit on rejected claim commenced.
80 Nev. 380, 382 (1964) Weiler v. Ross
reason, declined to rule. The motion was first made orally during the hearing of the
defendant's motion to dismiss, and later, on the same day, a written motion to amend, together
with the proposed amended complaint, was filed. A motion to amend may be made orally in
open court in the presence of counsel for the adverse party (Christensson v. Hogdal, 91
U.S.App.D.C. 251, 199 F.2d 402; 3 Moore, Federal Practice, p. 102) and leave to amend
should be freely given when justice requires. NRCP 15(a); Good v. District Court, 71 Nev.
38, 279 P.2d 467. Here the creditor's claim was filed against the estate during the course of its
general administration in the form and manner required by law. It was rejected by John Tom
Ross as the general administrator. Suit upon the rejected claim was thereafter commenced
within the time specified by NRS 147.130(1). The incorrect designation in the complaint of
the defendant as special administrator when he was, in fact, the general administrator, was an
inadvertence totally unrelated to the merits of the controversy between the creditor and the
estate, and without prejudice to the rights of either. In these circumstances we do not hesitate
to declare that the trial judge should have permitted the amendment in the interest of justice.
[Headnote 3]
The effect of the lower court's refusal to rule upon the motion to amend was to deny the
motion (Hewel v. Hogin, 3 Cal.App. 248, 84 P. 1002), and for the purposes of this appeal we
shall treat that motion as though it was denied. The judgment of dismissal is modified to
permit the plaintiff to file an amended complaint within 15 days after remittitur is sent to the
district court. Should the plaintiff fail to do so, the dismissal shall stand.
____________
80 Nev. 383, 383 (1964) Whitehead v. Norman Kaye Real Estate
JOHN C. WHITEHEAD, Appellant, v. NORMAN KAYE REAL ESTATE CO.,
a Nevada Corporation, Respondent.
No. 4792
September 11, 1964 395 P.2d 329
Appeals from the Eighth Judicial District Court, Clark County; William P. Compton,
Judge. On Motion to Dismiss.
Appeal from an order of the lower court granting summary judgment, judgment entered
pursuant thereto and order denying motion for rehearing. Respondent moved to dismiss the
appeal. The Supreme Court held that an appeal had to be taken within 30 days from service of
written notice of entry of judgment appealed from and that running of 30-day period was not
tolled by filing of motion for rehearing.
Motion granted.
[Rehearing denied September 24, 1964]
Pursel & Johnson, of Las Vegas, for Appellant.
Murray Posin, of Las Vegas, for Respondent.
Running of 30-day period for filing notice of appeal is not tolled by a motion for rehearing of motion for
summary judgment and appeal which was taken after 30 days from notice of entry of summary judgment
had to be dismissed. NRCP 73(a); DCR 20(4).
Party which intends to appeal also from possible denial of its motion for rehearing of motion for summary
judgment must have that motion determined before running of 30-day period for filing notice of appeal
from entry of summary judgment to avoid dismissal of appeal. NRCP 73(a); DCR 20(4).
OPINION
Per Curiam:
Respondent moved to dismiss the appeals herein upon the ground that the notice of appeal
was not timely filed.
After the action was at issue, respondent moved the lower court for summary judgment,
basing its motion upon the affidavit of Irwin Sadur, Vice President of Plaintiff corporation,
the papers, pleadings, and records on file. Appellant filed an affidavit in opposition to said
motion. After a hearing, the court granted the motion and ordered judgment entered in favor
of respondent. Judgment was entered accordingly. On April 6, 1964 written notice of entry of
the judgment was served. On April 13, 1964 appellant filed a motion entitled Motion for
Rehearing wherein he moved the court for a Rehearing of Plaintiff's Motion for Summary
Judgment * * * for the reasons set forth in Defendant's Points and Authorities filed herewith
and made a part hereof. The papers filed with this latter motion consisted of an affidavit of
one George L. Wright, with an exhibit attached, a written argument with respect to the legal
effect of the matters contained in the affidavit, and a citation of District Court Rule 20(4).
1

Respondent filed points and authorities in opposition to a rehearing which contain
arguments pertaining to the effect of the Wright affidavit.
On May 11, 1964 the court signed an order reciting therein that the motion for rehearing
came on for hearing, and the Court, after hearing argument of counsel, and considering the
evidence presented, and due deliberation having been made, it is ordered that the Motion for
Rehearing entered in the above-entitled action be, and the same is, hereby denied.
Whether the court on the motion for rehearing considered only the affidavit of Wright and
the written arguments for and against a rehearing, or whether it also considered the matters
presented on the motion for summary judgment, cannot be determined from the record before
us. If the former, it refused to grant permission to rehear the motion for summary judgment. If
the latter, it actually reheard the motion and refused to disturb its former ruling.
____________________

1
District Court Rule 20(4) provides: No motion once heard and disposed of shall be renewed in the same
cause, nor shall the same matters therein embraced be reheard, unless by leave of the court granted upon motion
therefor, after notice of such motion to the adverse parties.
the latter, it actually reheard the motion and refused to disturb its former ruling.
Notice of appeal from the Order granting Summary Judgment, the Judgment entered
pursuant thereto and the Order denying Defendant's motion for a rehearing * * * was filed
May 19, 1964.
It is conceded that but for the filing of the motion for rehearing, the notice of appeal was
not timely filed. NRCP 73(a) requires that an appeal must be taken within 30 days from
service of written notice of the entry of the judgment appealed from. Here the appeals were
not taken within 30 days from such service.
[Headnotes 1, 2]
It is appellant's contention that the running of the 30-day period was tolled by the filing of
the motion for rehearing. We reject this contention.
NRCP 73(a) specifies what particular motions terminate the running of time for appeal. A
motion pursuant to District Court Rule 20(4) is not included.
Appellant was required to file his notice of appeal not later than May 6, 1964. His motion
for rehearing was noticed for hearing on April 17, 1964. If, in the event his motion for
rehearing was denied, he intended to appeal also from the denial of the latter motion, it was
incumbent upon him to have that motion determined before the 30-day period had run.
Appeal dismissed.
____________
80 Nev. 386, 386 (1964) Day v. Day
FRANCES STATTER DAY, Appellant, v.
FAIRFIELD POPE DAY, Respondent.
No. 4738
September 15, 1964 395 P.2d 321
Appeal from order of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge, granting motion to dismiss.
Proceeding on motion by former wife to enforce support provisions of a divorce decree.
The trial court granted motion of former husband to dismiss the proceeding and former wife
appealed. The Supreme Court, Thompson, J., held that provision in a support agreement
incorporated into a divorce decree to the effect that the agreement was not to be merged into
the decree did not survive divorce decree which did not direct survival of the agreement, and
therefore provisions of such decree for future support were susceptible to statutory
proceedings by wife for enforcement of divorce decrees, and wife's sole remedy was not upon
the agreement itself.
Reversed.
Leslie B. Gray, of Reno, for Appellant.
John P. Thatcher, of Reno, for Respondent.
1. Divorce.
Adoption of a support agreement by the trial court effectuates merger of the agreement into the divorce
decree and the merger destroys the independent existence of the agreement and the rights of the parties
thereafter rest solely upon the decree; overruling Finley v. Finley, 65 Nev. 113, 189 P.2d 334, 196 P.2d
766.
2. Divorce.
Provision in a support agreement incorporated into a divorce decree to the effect that the agreement was
not to be merged into the decree did not survive divorce decree which did not direct survival of the
agreement, and therefore provisions of such decree for future support were susceptible to statutory
proceedings by wife for enforcement of divorce decrees, and wife's sole remedy was
not upon the agreement itself.
80 Nev. 386, 387 (1964) Day v. Day
statutory proceedings by wife for enforcement of divorce decrees, and wife's sole remedy was not upon the
agreement itself. NRS 123.080, subd. 4, 125.180.
OPINION
By motion pursuant to NRS 125.180 a former wife sought an order directing the entry of
judgment for the amount of arrears claimed to be due for her support under a Nevada divorce
decree granted April 7, 1949.
1
The decree approved, adopted and confirmed a written
agreement which, inter alia, provided for the wife's future support. One of the agreement's
provisions expressly stated that the agreement was not to be merged into any decree of
divorce entered later.
2
However, the decree did not itself state that the agreement was not
merged, nor did it expressly provide that the agreement survive the decree. As indicated, the
decree approved, adopted and confirmed the agreement. Additionally, it ordered the parties to
perform the obligations of the agreement, and gave judgment to each against the other
according to its terms. As NRS 125.180 requires a judgment for the payment of money, or an
order directing the payment thereof, before its remedial provisions are effective, the
former husband moved to dismiss the proceeding, urging that the sole remedy of his
former spouse was upon the agreement.
____________________

1
NRS 125.180 provides, 1. Where the husband, in an action for divorce, makes default in paying any sum
of money as required by the judgment or order directing the payment thereof, the district court may make an
order directing the entry of judgment for the amount of such arrears, together with costs and disbursements not
to exceed $10 and a reasonable attorney's fee.
2. The application for such order shall be upon such notice to the husband as the court may direct.
3. The judgment may be enforced by execution or in any other manner provided by law for the collection of
money judgments.
4. The relief herein provided for is in addition to any and every other remedy to which the wife may be
entitled under the law.

2
Though the agreement also employed language normally identified with merger, such as The provisions
shall be embodied in any final judgment, the terms and provisions of this agreement shall be incorporated in
such decree, we think it clear from the entire document that the parties intended to preserve their rights to sue
upon the agreement in the event of breach, and that the agreement was to survive the divorce decree and not be
merged therein.
80 Nev. 386, 388 (1964) Day v. Day
or an order directing the payment thereof, before its remedial provisions are effective, the
former husband moved to dismiss the proceeding, urging that the sole remedy of his former
spouse was upon the agreement. His motion was granted, and this appeal by the former wife
followed. We reverse.
In Ballin v. Ballin, 78 Nev. 224, 371 P.2d 32, we mentioned the uncertainty which
developed in Nevada case law before the 1953 enactment of NRS 123.080 (4),
3
as to the
legal effect of a divorce decree which, among other things, adopted an agreement. We there
stated, Before 1953, the distinction between the approval of an agreement on the one hand,
and its adoption or incorporation on the other was recognized by this court in Lewis v.
Lewis, 53 Nev. 398, 2 P.2d 131. In that case it was indicated that the adoption of an
agreement by the trial court resulted in a merger of the agreement into the decree entered, and
that a later motion to modify would be directed to the decree and not to the agreement which
had been merged therein. Later, in 1948, Finley v. Finley, 65 Nev. 113, 189 P.2d 334, 196
P.2d 766, was decided. It also distinguished between the approval and the adoption of a
property settlement agreement. It held that an adoption of such an agreement would give the
wife in addition to her contractual rights then existing the right to invoke contempt
proceedings in this state and the rights of a judgment creditor in this or any other state.' The
language in addition to' does not indicate that the adopted agreement became merged in the
decree; rather, it would appear to indicate that the adoption of an agreement makes it a part of
the decree, but does not destroy its independent existence, with the result that both contract
rights and judgment rights exist.
____________________

3
The 1953 statute, NRS 123.080(4) with which the Ballin case was concerned, reads, If a contract executed
by a husband and wife, or a copy thereof, be introduced in evidence as an exhibit in any divorce action, and the
court shall by decree or judgment ratify or adopt or approve the contract by reference thereto, the decree or
judgment shall have the same force and effect and legal consequences as though the contract were copied into
the decree, or attached thereto.
80 Nev. 386, 389 (1964) Day v. Day
result that both contract rights and judgment rights exist. To this extent, at least Finley
appears to be inconsistent with Lewis.
[Headnote 1]
As the agreement in the present case was made before the 1953 statute, we must first
resolve the inconsistent expressions of the Lewis and Finley cases. In line with Lewis we hold
that the adoption of an agreement by the trial court effectuates a merger of the agreement into
the decree entered. A merger destroys the independent existence of the agreement and the
rights of the parties thereafter rest solely upon the decree. We overrule any contrary
expression in Finley.
However, our resolution of the inconsistency between Lewis and Finley does not decide
the further question presented hereone which was not before the court in either Lewis or
Finleynamely, the effect, if any, to be given a provision of an agreement that the agreement
shall not be merged in the decree and shall survive the decree, when the decree adopts the
agreement but does not specifically direct survival.
[Headnote 2]
In Ballin v. Ballin, 78 Nev. 224, 371 P.2d 32 (decided after the 1953 statute), we decided a
closely related problem. There, though the decree used isolated words of merger, the
agreement and the decree each specifically directed survival. We held, In our view, the
support clause in an agreement should, in accordance with ordinary contract principles,
survive a subsequent decree if the parties so intended and if the court directs such survival.
In the case before us, only the agreement directs survival; the decree does not. We now take a
further step and hold that the survival provision of an agreement is ineffective unless the
court decree specifically directs survival. We recognize that our view is an arbitrary one; it
has to be. However, we think that questions relating to enforcement rights and choice of
forum are of such significance as to require a clear and direct expression from the trial court
as to whether the agreement shall survive. Absent such a clear and direct expression in the
decree we shall presume that the court rejected the contract provision for survival by
using words of merger in its decree4 {"adopt," "incorporate," etc. and, since the 1953
statute, "approve," "adopt," "ratify.").
80 Nev. 386, 390 (1964) Day v. Day
expression in the decree we shall presume that the court rejected the contract provision for
survival by using words of merger in its decree
4
(adopt, incorporate, etc. and, since the
1953 statute, approve, adopt, ratify.). Accordingly, in the instant matter, we hold that
the agreement was merged into the decree of divorce, and that the provisions of such decree
for the future support of Mrs. Day are susceptible to a proceeding under NRS 125.180.
Reversed.
____________________

4
Most of the uncertainty can be avoided by plainly stating in the decree, The agreement [properly identified]
is merged into this decree of divorceorThe agreement is not merged into this decree of divorce, but shall
survive.
____________
80 Nev. 390, 390 (1964) Smith v. Gabrielli
RAYMOND A. SMITH, Petitioner, v. THE HONORABLE JOHN E. GABRIELLI, District
Judge of the Second Judicial District Court of the State of Nevada,
in and for the County of Washoe, Department No. 3 Thereof, Respondent.
No. 4787
September 18, 1964 395 P.2d 325
Original proceeding in mandamus.
Proceeding to compel entry of summary judgment in favor of alleged father in mother's
action to enforce obligations of alleged father to support child. The Supreme Court,
McNamee, J., held that in absence of any issue of fact relative to alleged father's
acknowledgment of paternity or furnishing of support within two years from date of child's
birth, he was entitled to summary judgment in his favor in proceeding brought by mother
more than two years after birth of child to enforce obligation of alleged father.
Writ of mandamus granted.
Paul A. Richards, of Reno, and Arthur J. Crowley, of Hollywood, California, for
Petitioner.
Gordon W. Rice and Leo P. Bergin, of Reno, for Respondent.
1. Judgment.
Summary judgment is improper where any issue of fact remains for determination.
2. Judgment.
Trial court must accept as true all evidence favorable to party opposing motion for summary judgment.
3. Judgment.
Where affidavit of mother moving for summary judgment in action to enforce obligations of father to
support child did not support averment of her verified complaint that alleged father had made support
payments subsequent to birth of child, it was court's duty to rely on affidavit and disregard conclusion
appearing in verified pleading.
4. Bastards.
Payment for hospital and medical expenses in connection with birth of child do not constitute the
furnishing of support under statute requiring that a proceeding to enforce obligation of father be brought
within two years from birth unless paternity has been acknowledged by the furnishing of support. NRS
126.340.
5. Bastards.
Father's alleged oral acknowledgment of paternity during phone conversation after child's birth was of no
significance under statute requiring that proceeding to enforce obligation of father be brought within two
years unless paternity has been acknowledged in writing. NRS 126.340.
6. Bastards.
To constitute an acknowledgment of paternity law requires a clear acknowledgment about which there is
no doubt and an inference of paternity is insufficient.
7. Bastards.
Alleged father's giving of cashier's check to physician as partial payment for doctor's services in
connection with birth of child did not constitute an acknowledgment in writing of paternity. NRS
126.340.
8. Judgment.
In absence of any issue of fact relative to alleged father's acknowledgment of paternity or furnishing of
support within two years from date of child's birth, he was entitled to summary judgment in his favor in
proceeding brought by mother more than two years after birth of child to enforce obligation of alleged
father. NRS 126.340.
9. Mandamus.
Inasmuch as there is no appeal from denial of motion for summary judgment, mandamus is proper
remedy to compel granting of motion.
OPINION
This is an original proceeding for a writ of mandamus.
Barbara A. McMinn commenced an action in respondent court by filing a verified
complaint against the petitioner herein to require him to pay money for the support of her
illegitimate child and for expenses in connection with his birth. Her complaint alleges that
petitioner has acknowledged paternity of said child and has made payments to her for his
support since his birth.
The child was born November 4, 1961. The action to enforce the obligations of the alleged
father was commenced April 16, 1964.
NRS 126.340 provides: Proceedings to enforce the obligation of the father shall not be
brought after the lapse of more than 2 years from the birth of the child, unless paternity has
been judicially established, or has been acknowledged by the father in writing or by the
furnishing of support.
In the respondent court the petitioner filed a verified answer to the complaint denying
paternity of the child and alleging as affirmative defenses the statute of limitations and laches.
Thereafter, petitioner moved for summary judgment. Evidence in the form of petitioner's
affidavit and the counter affidavit of McMinn was filed in support of and in opposition to said
motion. There was also in evidence the said verified complaint and answer thereto and a
verified complaint by Barbara A. McMinn against Raymond A. Smith filed December 20,
1961, in California, for the purpose of establishing the paternity of said child.
In her California complaint McMinn alleges:
That defendant has failed, neglected and refused to provide or to pay the necessary
hospital and medical expenses which have been and will he incurred since the birth of
Raymond Huston Smith and has refused to pay for the support of his son Raymond
Huston Smith since his birth.
provide or to pay the necessary hospital and medical expenses which have been and will he
incurred since the birth of Raymond Huston Smith and has refused to pay for the support of
his son Raymond Huston Smith since his birth. That defendant does refuse to recognize or
acknowledge that he is the father of Raymond Huston Smith and does refuse to acknowledge
paternity of Raymond Huston Smith or recognize his legal responsibility as the father of
Raymond Huston Smith.
In her complaint filed in respondent court she alleges that:
Defendant has failed, neglected and refused to provide or to pay the necessary hospital
and medical expenses which have been and will be incurred since the birth of Raymond
Huston Smith and has refused to pay for the support of his son Raymond Huston Smith,
except the sum of about $2,000.00, since his birth, though demand has been made upon him
numerous times, both orally and in writing, so to do. Defendant has recognized Raymond
Huston Smith as his son in various ways, including partial payment of his medical bills at
birth, and some payments since for his support.
In petitioner's affidavit in support of his motion for summary judgment he states: That
your affiant has never acknowledged being the father of the minor child, Raymond Huston
Smith, nor has he supported the minor child since the birth of the said child on November 4,
1961, nor has he paid any moneys to the plaintiff, Barbara A. McMinn, since the birth of the
minor child, Raymond Huston Smith; that defendant has at all times denied the paternity of
the minor child, Raymond Huston Smith.
In her affidavit in opposition to the motion for summary judgment McMinn alleges:
Defendant Raymond A. Smith acknowledged being the father of our minor child,
Raymond Huston Smith, many times, at least one of which was subsequent to Raymond
Huston Smith's birth. This was during a phone conversation between Mr. Smith and me while
I was in the hospital after the birth of our child.
Defendant Raymond A. Smith has paid for the support of our minor child by paying for
the birth and hospital expenses of the child, and also by paying money directly to Dr. James
F. Fortune for his professional services in connection with the birth of said child.
Defendant Raymond A. Smith acknowledged the birth of our son in writing by
purchasing a cashier's check in the amount of $500.00 and giving said check to Dr. James F.
Fortune as partial payment of the doctor's services in connection with my confinement with
Raymond Huston Smith.
The McMinn affidavit makes no averment that petitioner made any payments for the
support of the child other than the payment of certain birth and hospital expenses of the child
and certain doctor bills in connection with the birth, although she had alleged in her Nevada
complaint that since the partial payment of the medical bills at birth he had made some
payments since for his support.
[Headnotes 1-3]
Summary judgment of course is improper where any issue of fact remains for
determination. Dredge Corp. v. Husite Co., 78 Nev. 69, 369 P.2d 676. Because the trial court
must accept as true all evidence favorable to the party opposing the motion, respondent
contends that the allegation in the Nevada complaint that support payments were made
subsequent to the birth of the child leaves for determination a material issue of fact. Her
affidavit however does not support this averment of her said verified complaint. It was
therefore the duty of the lower court to rely upon the affidavit and disregard the conclusion
appearing in the verified pleading that support payments were made subsequent to the birth of
the child. Franktown v. Marlette, 77 Nev. 348, 364 P.2d 1069.
[Headnote 4]
The next question for determination is whether the payments made by petitioner for
hospital and medical expenses in connection with the birth of the child constitute the
furnishing of support under NRS 126.340.
The record does not show whether the expenses of McMinn's pregnancy and confinement
were paid all or in part before or after the child's birth. We hold this to be immaterial in the
present case,
1
because regardless of when such payments were made they do not constitute
the furnishing of support under NRS 126.340.
In People v. Pennyfeather, 11 Misc.2d 546, 174 N.Y.S.2d 766, the putative father
contributed irregular payments amounting to about $200 toward the support of an illegitimate
child after the child was born on October 27, 1952. The last occasion when she received
money was on December 8, 1955. The mother's paternity proceeding was commenced
September 20, 1957. The New York paternity statute in effect at that time provided that such
a proceeding shall not be brought after the lapse of more than two years from the birth of the
child, unless paternity has been acknowledged by the father in writing or by the furnishing of
support. This statute is almost identical with NRS 126.340. In that case the court held:
The furnishing of support' must be a course of conduct that would be a substitute for a
written acknowledgment of paternity; it must be tantamount to a recognition by the putative
father of his child. There is a distinction between furnishing support and payment of money'.
Furnishings of support may include contribution of money; the intention must be that the
money is for the support of the infant and for no other purpose. Such furnishing of support
should be regular and fairly consistent.
* * * * *
Occasional payments are not clear acknowledgment of paternity; there must be more than
sporadic payments to toll the statute of limitations. Payments of some money over a period of
time may not be taken as an admission of paternity, particularly under circumstances where
the payments may have other purposes.
* * * * *
____________________

1
There is authority to the effect that acknowledgment of paternity or recognition of responsibility for the
pregnancy of a woman before the birth of the child does not toll the running of the statute. Rosser, Legislative
Note, 15 Ala.L.Rev. 350, 353 (1962).
To constitute an acknowledgment of paternity, whether the acknowledgment is in writing
or by the furnishing of support, the law requires that there be no doubt or equivocation'. The
complainant has the burden of proving, with clarity, the conditions under which the statute
may be tolled. This proof, like other proof in an action of this type where the charge is so easy
to make and difficult to disprove, must be clear, convincing and satisfactory. Such proof must
be scrutinized and, if there is a serious question that the payments were made in
acknowledgment of paternity, then the complaint must be dismissed.
The Uniform Illegitimacy Act, which is the law of this state, NRS 126.010-126.380,
differentiates the obligation a parent owes his child for necessary maintenance, education and
support from the obligation of the father to pay the expenses of the mother's pregnancy and
confinement. NRS 126.030.
[Headnotes 5-7]
The purported oral acknowledgment of paternity by petitioner during a phone conversation
after the child's birth is of no significance, because an acknowledgment of paternity must be
in writing under NRS 126.340. Nowhere does it appear that petitioner ever acknowledged
paternity in writing. Respondent maintains however that the cashier's check given by
petitioner to Dr. James F. Fortune as partial payment for the doctor's services in connection
with the birth of Raymond Huston Smith constituted an acknowledgment in writing of
paternity. No authority is cited to substantiate this contention. In fact, the cases of Schuerf v.
Fowler, 2 App.Div.2d 541, 156 N.Y.S.2d 859, and People v. Pennyfeather, supra, are
authorities to the contrary. To constitute an acknowledgment of paternity the law requires a
clear acknowledgment about which there is no doubt or equivocation. An inference of
paternity is insufficient.
In Hernandez v. Anaya, 66 N.M. 1, 340 P.2d 838, the cases of People v. Pennyfeather and
Schuerf v. Fowler, supra, were cited with approval. The New Mexico Supreme Court's
conclusion seemingly is inconsistent with these New York cases.
with these New York cases. It can be justified however because of the nature of the particular
proceeding in that case, which was an appeal from an order denying a motion to vacate a
default judgment. The appellate court held that the trial court had jurisdiction to enter its
judgment, and a sufficient ground to vacate was not presented.
[Headnotes 8, 9]
Since no issue of fact remains for determination
2
the motion for summary judgment
should have been granted. Inasmuch as there is no appeal from the denial of such a motion
mandamus is a proper remedy. Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610.
It is ordered that a peremptory writ of mandate issue requiring respondent court to dismiss
said action against petitioner.
By a dissenting opinion in Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610, I expressed my
opposition to the use of mandamus to compel the entry of a summary judgment. Though still
of the same view, it is my obligation to accept Dzack as the controlling precedent as to the
availability of mandamus here, and therefore concur in the opinion of the court.
____________________

2
Pursuant to NRCP 33 the attorneys for McMinn served upon petitioner certain interrogatories to be
answered. Petitioner's failure to make answer thereto in no way was prejudicial, because the interrogatories
relating to the tolling of the statute of limitations pertained only to moneys advanced by petitioner for medical
and hospital expenses during McMinn's pregnancy.
____________
80 Nev. 398, 398 (1964) McGuire v. Wooten
LOUISE MCGUIRE, Administratrix of the Estate of ROBERT RUSSELL MCGUIRE,
Deceased, Appellant, v. RONALD E. WOOTEN, Respondent.
No. 4742
September 24, 1964 395 P.2d 384
Action by motorist against administratrix of state highway patrol officer for damages
resulting from automobile accident which occurred at time officer was responding to
emergency call in highway patrol vehicle. The trial court entered judgment for motorist and
administratrix appealed. The Supreme Court, McNamee, J., held that it was error to refuse to
instruct the jury specifically concerning contributory negligence, where substantial evidence
was received without objection to support a charge of contributory negligence.
[Rehearing denied October 21, 1964]
Morse & Graves, and Robert W. Austin, of Las Vegas, for Appellant.
Automobiles.
In action by motorist against administratrix of state highway patrol officer for damages resulting from
automobile accident which occurred at time officer was responding to emergency call in highway patrol
vehicle, it was error to refuse to instruct the jury specifically concerning contributory negligence, where
substantial evidence was received without objection to support a charge of contributory negligence.
NRCP 15 (b).
OPINION
This is an action brought by Wooten against the administratrix of Robert Russell McGuire
to recover damages resulting from an automobile accident.
damages resulting from an automobile accident. The complaint charges McGuire with
negligence. The defendant's answer denies negligence on the part of McGuire and alleges as
an affirmative defense the following:
That at or about the time and place mentioned in plaintiff's complaint, the deceased
ROBERT RUSSELL McGUIRE, was in the scope and course of his employment as a Nevada
Highway Patrol Officer and as such and at the time of the collision with the automobile
driven by plaintiff, was on an emergency call and was responding thereto in a Nevada
Highway Patrol car with siren on and red light flashing and that at the intersection of Las
Vegas Boulevard South and Gass Ave., that plaintiff drove and operated his motor vehicle in
an unlawful manner violating the statutes of the State of Nevada and Ordinances of the City
of Las Vegas, pertaining to emergency vehicles and thereby contributed to the accident by his
own fault and lack of care.
Prior to trial defendant moved to amend the answer by adding a second affirmative defense
charging contributory negligence as follows:
That on or about the time and place and on the occasion mentioned in plaintiff's
complaint the alleged injuries or damages sustained by plaintiff were in whole or in part
contributed to by the fault, lack and want of care on the part of the plaintiff and by reason
thereof said alleged damages are not recoverable from the defendant.
The motion to amend was denied upon failure of the movant to appear at the time set for
the hearing of the motion. On the morning of the trial, at the opening of court, the motion to
amend was renewed orally and denied. Thereupon, a written motion to renew motion to
amend answer was filed pursuant to DCR 20 (4). After both parties had rested, plaintiff
moved to amend the complaint to conform to proof with respect to special damages. This
motion was granted. Defendant then moved to argue the written motion to renew motion to
amend answer. At the same time defendant moved the court for permission to amend the
answer to include an affirmative defense of contributory negligence based in part on "the
testimony to date."
part on the testimony to date. These motions were denied.
The court refused to give defendant's two requested instructions on contributory
negligence. The matter was submitted to the jury which brought in a verdict in favor of the
plaintiff for $15,000 and judgment for said amount was entered. A motion for judgment
notwithstanding the verdict or in the alternative for a new trial was denied. Appeal is from the
judgment and from the denial of said motion.
Appellant contends that the court erred in refusing to give her two requested instructions
pertaining to contributory negligence and in denying appellant leave to amend her answer to
conform to the evidence.
For the reasons hereinafter stated it is unnecessary to determine whether the affirmative
defense in the answer legally is sufficient to raise the issue of contributory negligence.
The evidence shows that one Carter drove his truck to the intersection of Gass and Las
Vegas Boulevard South. He stopped in the left-turn lane prior to entering Las Vegas
Boulevard South because the signal was against him. When the signal turned green he
remained stopped inasmuch as he could hear the siren of an approaching vehicle and could
see its light flashing red. Although the signal was heard by several witnesses for as long as
two minutes prior to the collision and although the red light could be seen at a distance of
more than five blocks from the intersection, Wooten, while his view to the right was blocked
by Carter's truck, proceeded at a speed of 25 to 30 miles per hour
1
past Carter's truck on the
left (which was a lane for traffic coming in the opposite direction) into the highway without
stopping. There, he was hit by the patrol car.
2
The deceased suffered no injuries from this
accident. His subsequent death was unrelated thereto.
____________________

1
Wooten testified that his speed was 15 or 20 miles per hour when he entered the intersection.

2
Carter's testimony in this regard is as follows: Well, I was going west on Gass Street and I pulled up to the
intersection and the light was red so I stopped and while I was stopped I heard a siren and it kept getting louder
all the time so the light changed
In our opinion, the record contains substantial evidence received without objection to
support a charge of contributory negligence. NRCP 15(b).
In Dearden v. Galli, 70 Nev. 543, 277 P.2d 381, the plaintiff was injured while helping his
employer, the defendant, load a harrow onto the bed of a truck. To get the harrow into the
truck an endgate had to be lifted. When the gate was fully raised defendant asked plaintiff to
insert the iron pin which would hold the gate in place. This the plaintiff attempted to do. He
inserted the pin far enough to hold the gate up temporarily. After the two men had lifted the
harrow through the opening the gate fell, injuring the plaintiff. Before trial, defendant moved
to amend his complaint specifically to plead contributory negligence. This motion was
denied. Following the introduction of all evidence instructions were given to the jury
covering the issue of negligence which were objected to by the defendant, because the issue
of contributory negligence was not properly submitted. In remanding the case for a new trial
this court held that while contributory negligence was never affirmatively pleaded it was
obvious that the defendant hoped to rely on this defense if the facts elicited at the trial would
permit him to do so. Furthermore, the law would appear to be to the effect that where a case
is tried by the respective parties on the theory that the pleadings present an issue of
contributory negligence, and where no objection has been made to the form of the pleadings
and there is substantial evidence to support this issue, it becomes the duty of the trial court to
give to the jury such appropriate instructions on this subject as have been offered by the
defendant.' Hoffman v. S.P. Co., 84 Cal.App. 337, 258 P. 397, 400, and cases cited therein.
In Hoffman, the court went on to say: As a general rule the contributory negligence of
the plaintiff must be specifically pleaded by the defendant in order that he may rely upon
this defense.
____________________
to green so I sat there and waited until the siren got on down and just before it got to the intersection there was a
State trooper's car and there was a car passed me on the left and went into the intersection and the State trooper's
car tried to stop, but he couldn't stop because, I guess he couldn't see him in time. * * * I was up in the center of
the street to make a left-hand turn, sir. * * * It was about at the center of the street, sir, I would say on the center,
on the right side, I was ready to make a left-hand turn.
rule the contributory negligence of the plaintiff must be specifically pleaded by the defendant
in order that he may rely upon this defense. * * * But where plaintiff's contributory
negligence appears from the allegations of his complaint or from the evidence introduced in
his behalf, this plea is available to the defense, although it is not pleaded in the answer.
In Shelley v. Union Oil Co., 9 Cir., 203 F.2d 808, 14 Alaska 287, it was held that where
defendants were permitted, without objection, to introduce evidence in a personal injury
action tending to show that plaintiff was contributorily negligent, the trial court did not err in
giving an instruction on contributory negligence, though contributory negligence was not
pleaded in the answer.
It is clear to us that the lower court erred in refusing to instruct the jury specifically
concerning contributory negligence. See Rocky Mountain Produce Trucking Co. v. Johnson,
78 Nev. 44, 369 P.2d 198.
It is unnecessary to pass upon the other ground urged by appellant for reversal.
The judgment and order denying appellant's motion for a new trial are reversed and the
case is remanded for a new trial.
____________
80 Nev. 402, 402 (1964) Miller v. Lewis
A. W. MILLER, WM. PENNINGTON, WM. V. PENNINGTON, LARRY BURROR and R.
REDELIUS, Appellants, v. JOHN V. LEWIS and JAMES J. MCBRIDE, Respondents.
No. 4745
September 25, 1964 395 P.2d 386
Action for damages for alleged fraud and deceit. The trial court entered judgment for
defendants, and plaintiffs appealed. The Supreme Court, Badt, C. J., held that evidence
sustained findings that fraudulent representations were not made.
evidence sustained findings that fraudulent representations were not made.
Affirmed.
Frank R. Petersen, of Reno, for Appellants.
John J. McCune, of Reno, for Respondents.
1. Fraud.
Evidence sustained findings that fraudulent representations were not made.
Trial court's findings based on conflicting evidence will not be disturbed on appeal.
OPINION
By the Court, Badt; C. J.:
Plaintiffs (appellants herein) sued defendants (respondents herein) in tort for damages
resulting from the defendants' alleged fraud and deceit. From a judgment in favor of
defendants, plaintiffs have appealed. The sole assignment of error is that there is legal
insufficiency in the evidence to sustain the judgment.
The occasions at which the fraudulent and deceitful statements of defendants are alleged to
have been made were four meetings between the parties, one at the office of appellant
Redelius, one at the Holiday Hotel, one at the offices of the Sno-Lite Co., and one at the
offices of attorney Emerson Wilson at the Nevada Title Guaranty Company, all in Reno,
Nevada. The testimony of the plaintiffs in support of the allegations of fraud and deceit were
all categorically denied by the testimony of the defendants.
The court in its findings and conclusions said: The burden of proof in establishing fraud
is upon plaintiffs. A party alleging fraud must clearly and distinctly prove the fraud as
alleged, or as has been said, fraud must be established by clear and convincing proof. Gruber
v. Baker, 20 Nev. 453 [23 P. 858, 9 L.R.A 302]; Tallman v. First National Bank of Nevada
[66 Nev. 248], 208 P.2d 302.
The only testimony as to the making of the alleged promises and representations upon
which plaintiffs, case is predicated is that of plaintiffs themselves. The other non-party
witnesses, Catron and Wilson, did not testify that such representations were made in their
presence.
* * * * *
Plaintiffs have not sustained the burden of proof in establishing their claim of fraud.
* * * * *
As stated supra, I have determined that the plaintiffs have not met the requisite burden of
proof in establishing that the alleged fraudulent representations were made. The other issues
touched upon are, however, inherent in the action, and I have therefore alluded to them as
demonstrating that plaintiffs would not, in any event, be entitled to the relief prayed for.
1

[Headnotes 1, 2]
In oral argument counsel frankly recognized the rule consistently followed by this court
that the trial court's findings based on conflicting evidence would not be disturbed by this
court, but urged that the rule not be followed in this appeal, and that the appeal should stand
or fall on this point.
____________________

1
The other issues referred to were (1) that the representations, even if made, were not actionable; (2) that
they did not relate to a past or existing fact and were merely promissory in nature; (3) that plaintiffs did not show
that they suffered damage or injury as a result of the defendants' alleged fraud; (4) that a certain option which
plaintiffs contended they had surrendered by reason of defendants' representations was non-existent; (5) that
plaintiffs' primary claim for loss of profits was without support; (6) that as to appellant Redelius, the latter had
no discussion of any matters with the defendants and admits that no representations were made to him; (7) that
the oral promises of defendants, as alleged by plaintiffs, and the reliance thereon, would constitute an oral
contract involving the sale of real property which could not be performed within one year, and that the action
even though sounding in tort, had as an essential element an oral contract barred by the statute of frauds. None of
these issues requires discussion.
fall on this point. We find no difficulty in applying the rule in this as in other cases.
Judgment affirmed with costs.
____________
80 Nev. 405, 405 (1964) Las Vegas Network v. B. Shawcross and Associates
LAS VEGAS NETWORK, INC., a Nevada Corporation, Appellant, v. B. SHAWCROSS
AND ASSOCIATES dba Nevada Tax Cooperative and Blanche Shawcross aka
L. B. Shawcross dba Shawcross, Baron and Meyer, Blanche Shawcross and Associates, Ethel
Baron, B. Shawcross, B. Shawcross, Public Accountant,
and Blanche Shawcross, Public Accountant, Respondents.
No. 4676
September 30, 1964 395 P.2d 520
Marshall, Judge.
Action by seller against buyers for money due under written agreement for sale of
business. Seller appealed from a judgment of the lower court dismissing its second amended
complaint with prejudice. The Supreme Court, Thompson, J., held that it was permissible for
court to look to prior pleadings and conclude that an assignment of money due seller had
occurred after suit was started and was not, therefore, properly introduced by way of amended
pleading.
Judgment affirmed.
Stanley W. Pierce and Don L. Griffith, of Las Vegas, for Appellant.
Morton Galane, of Las Vegas, for Respondents.
1. Pleading.
Although an amended pleading supersedes the prior pleading as a pleading, the prior pleadings are not
ineffective for all purposes.
2. Evidence.
An admission against interest of a pleader contained in a prior abandoned pleading may be received in
evidence.
3. Pleading.
New matter may be properly alleged in an amended pleading if it existed when the action was
commenced.
4. Pleading.
In action by seller against buyers for money due under written agreement for sale of business, it was
permissible for court to look to prior pleadings and to conclude that assignment of money due seller had
occurred after suit was started and was not, therefore, properly introduced by way of an amended pleading.
NRCP 15(d).
5. Judgment.
Dismissal with prejudice of amended complaint because it alleged assignment which occurred after
commencement of action would not preclude another action for purchase price on sale of business based
upon assignment.
OPINION
This is an action for money claimed to be due from the buyers (defendant Shawcross And
Associates) to the seller (plaintiff Las Vegas Network, Inc.) under a written agreement for the
sale of a business. The agreement was attached to the original complaint as an exhibit. It
provided that the purchase price (except for $2,500) was to be paid to persons other than the
plaintiff seller, namely Pierce and Cahlan. Apparently because the plaintiff seller sought to
recover money which was not due and owing it, the lower court granted the defendants'
motion to dismiss. An amended complaint was filed. In it the plaintiff joined, as defendants,
the persons to whom the purchase price was to be paid, i.e., Pierce and Cahlan. The
defendants Shawcross And Associates again moved to dismiss. Their motion was granted
with leave to amend. A second amended complaint was filed. This time the plaintiff alleged
that Pierce and Cahlan had assigned to the plaintiff their right to receive money under the
agreement of sale.
under the agreement of sale. Upon motion of the defendants the second amended complaint
was dismissed with prejudice. This appeal followed.
We are not asked to decide whether the lower court properly dismissed the original
complaint and the first amended complaint, nor whether Pierce and Cahlan were necessary
parties to the action when it was originally commenced. The appellant raises this sole
question on appeal: Was it permissible for the lower court, in ruling on the motion to dismiss
the second amended complaint, to look to prior superseded complaints to determine whether
an allegation (the assignment from Pierce and Cahlan to the plaintiff) rests upon transactions,
occurrences or events which have happened since the commencement of the action? We hold
that it is permissible for the court to review the superseded pleadings for such a purpose. Cf.
Nelson v. Sierra Construction Corp., 77 Nev. 334, 364 P.2d 402. Neither Lubin v. Chicago
Title & Trust Co., 7 Cir., 260 F.2d 411, nor McFadden v. Ellsworth Mill & Mining Co., 8
Nev. 57, heavily relied upon by appellant, touches the precise issue before us.
[Headnotes 1-4]
Of course it is true that an amended pleading supersedes the prior pleading as a pleading.
However, contrary to the appellant's position, it is not true that the prior pleadings are
ineffective for all purposes. For example, see Annot., 52 A.L.R.2d 516, entitled
Admissibility in Evidence of Withdrawn, Superseded, Amended or Abandoned Pleading as
Containing Admissions Against Interest, wherein, inter alia, it is noted that the great weight
of authority holds that an admission against the interest of a pleader contained in a prior
abandoned pleading may be received in evidence. Here the plaintiff seller by its first amended
complaint, named Pierce and Cahlan (to whom the purchase price was to be paid) as
involuntary defendants. By its second amended complaint the plaintiff seller alleged that
Pierce and Cahlan had assigned to the plaintiff their right to receive the purchase price. Under
such circumstances it was permissible for the lower court to look to the prior pleadings and
to conclude therefrom that the assignment occurred after suit was started and was not,
therefore, properly introduced by way of an amended pleading.
pleadings and to conclude therefrom that the assignment occurred after suit was started and
was not, therefore, properly introduced by way of an amended pleading. New matter may
properly be alleged in an amended pleading if it existed when the action was commenced. Cf.
Transcontinental Oil Co. v. Free, 80 Nev. 207, 391 P.2d 317. On the other hand, NRCP 15(d)
provides that a supplemental pleading is the appropriate way to set forth transactions, or
occurrences, or events which have happened since the date of the pleading sought to be
supplemented.
[Headnote 5]
Accordingly we affirm the dismissal with prejudice, but point out that it does not preclude
another action for the purchase price based upon any assignment which occurred after the
instant case was commenced.
____________
80 Nev. 408, 408 (1964) Clarence E. Morris, Inc. v. Vitek
CLARENCE E. MORRIS, INC., A California Corporation, Appellant, v.
ALVIN J. VITEK, Respondent.
No. 4741
September 30, 1964 395 P.2d 521
Employee appealed from an order of the lower court denying a motion to discharge a writ
of attachment. The Supreme Court, Badt, C. J., held that counts of complaint for breach of
express contractual obligation by employer for failure to pay employee agreed percentage of
profits from land developments and housing subdivision construction in money or in second
trust deeds did not state causes of action upon contract, express or implied, for direct payment
of money as required by statute authorizing writs of attachment.
Reversed.
Jones, Wiener & Jones, of Las Vegas, for Respondent.
1. Attachment.
Action for breach of express contractual obligation by employer for failure to pay employee agreed
percentage of profits from land developments and housing subdivision construction in money or in second
trust deeds did not constitute action upon contract, express or implied, for direct payment of money as
required by statute authorizing writs of attachment. NRS 31.010, subd. 1.
2. Attachment.
Discharge of writ was not error, where plaintiff obtained an attachment for $511,811 on a $23,522
demand. NRS 31.010, subd. 1.
OPINION
This is an appeal from an order denying a motion to discharge a writ of attachment.
The affidavit for the writ of attachment stated that the defendant, appellant herein, was
indebted to plaintiff in the sum of $511,811 upon an express contract for the direct payment
of money, to wit: $511,811. Such affidavit followed the wording of NRS 31.010 providing
for the issuance of the writ: (1) In an action upon a judgment or upon a contract, express or
implied, for the direct payment of money * * *. The complaint was in two counts, the first
being for $117,611 and the second for $394,200, based upon a memorandum attached as
exhibit A which recited the association of the parties in land developments and housing
subdivision construction on five tracts in Chula Vista, a tract in Escondido, a tract in Ocean
Side, a tract in National City, and two tracts in Santa Maria, all in the State of California. As
to the first nine tracts it was recited: With reference to said tracts, it is understood that the
relation of the parties was one of employer (Morris) and employee (Vitek), with Vitek
receiving a salary, plus 3% of the net profits from said enterprise.
It is understood that Vitek has received all salary commitments but has not received, and
still has coming, 3% of profits. It is further understood that said profits may be in the form of
cash or in the form of second trust deeds. It is agreed that as soon as profits can be ascertained
and/or trust deeds divided, Vitek will receive his percentage compensation as above
outlined.
As to the two tracts in Santa Maria, California, it was recited: The agreement between the
undersigned parties with reference to the Donovan Park units [Santa Maria] is that all net
profits from the venture, whether in the form of trust deeds or money, will be divided equally
between Morris and Vitek.
It is understood that Vitek shall be entitled to receive, and shall receive, one half of all
trust deeds taken as profits, such trust deeds to be assigned to and delivered to Vitek as soon
as they are available.
With reference to the two tracts in Las Vegas, Nevada, consisting of approximately 114
houses, it is recited: With reference to Greater Las Vegas, the understanding is that Vitek is
employed by Morris at his regular salary and, in addition, is to receive 3% of said profits. It
is first to be observed that as to all of the California tracts, Vitek was to be paid to the extent
mentioned, in the form of cash or in the form of second trust deeds, but that with reference to
the two Las Vegas tracts, he was to receive his regular salary and in addition 3 percent of net
profits.
No question is raised as to payment of Vitek's salary. Apparently that has all been paid as
agreed.
The court below, in denying the motion to set aside the attachment, appears to have held in
its oral decision from the bench that because the affidavit for attachment recited that the
action was based on a contract for the direct payment of money, this satisfied the statute
because if the contract spells out a formula whereby it can be implied and determined that a
sum certain is due the plaintiff, that is sufficient to meet the requisite of subparagraph 1 [of
NRS 31.010]. This is entirely understandable with reference to the two Las Vegas tracts
under which Vitek is employed by Morris at his regular salary and, in addition, is to
receive 3% of net profits."
regular salary and, in addition, is to receive 3% of net profits. Appellant does not appear to
contend that the net profits on the Las Vegas project were not subject to simple computation.
[Headnote 1]
Our conclusion is that on the other projects in which Vitek's share was payable in cash or
in second deeds of trust, there was not a contract for the direct payment of money. Here
respondent mistakes the issue and contends that if the damages resulting from a breach of the
contract can be ascertained, the issuance of the writ is justified. However, the ascertainment
of the amount of damage is only part of the issue. It does not answer the question whether the
contract was one for the direct payment of money. If the validity of the attachment depends
only upon the question of whether the damages can be computed or ascertained, an
attachment would lie for the breach of any kind of a contract, but such is not the effect of the
statute. In the language of Willett & Burr v. Alpert, 181 Cal. 652, 185 P. 976, [t]o hold
otherwise would be simply to wipe out the statute and permit an attachment in every action
for damages for a breach of contract, regardless of whether or not the contract be one for the
direct payment of money. Accord: California Packing Corp. v. Kato, 45 Cal.App. 491, 188
P. 57. Appellant says in his opening brief:
It is submitted that the parties contemplated reaping their profits, if any, on the ventures
in one of three ways: 1. By receiving the full amount of the purchase price of the homes
constructed in money, 2. by taking trust deeds in lieu of money, or 3. by a partial payment in
cash and the remainder by way of a second trust deed.
This may possibly be so, but there is nothing in the contract or in the record to support it. It
would appear more likely that the purchaser of each house borrowed enough money from a
lending agency to pay part of the contract price and gave Morris a second mortgage for the
remainder, and that in this second mortgage or deed of trust Vitek was to share.
We have no difficulty in construing the contract as giving Morris an option to pay the
agreed percentage of profits either in money or in second trust deeds.
giving Morris an option to pay the agreed percentage of profits either in money or in second
trust deeds. Second trust deeds are not money, nor are they the equivalent in value of money.
The value of second trust deeds depends upon many features; among other things, the value
of the property, the amount of the first trust deed, and the status of the first trust deed. A
foreclosure (or a sale under the powers) of the first trust deed could entirely destroy the value
of the second trust deed. Accordingly, the option to Morris to pay in second deeds of trust
whose value is not determinable as equivalent to cash does not satisfy the statute.
[Headnote 2]
But this conclusion leaves us with an additional issue to dispose of. We have seen that the
contract concerning the two Nevada tracts was simply that Morris was to pay Vitek his
regular salary (the payment of which is not in dispute) plus 3 percent of the net profits. This
was subject to a simple computation and satisfied the requirements of NRS 31.010. But the
attachment was for $511,811, which was the amount alleged to be due as Vitek's share of the
profits by reason of the construction of the 10 California tracts and the two Nevada tracts. It is
impossible to ascertain from the second amended complaint or from the affidavit of
attachment how much of this resulted from the Nevada construction. The two Nevada tracts
(under which Vitek was to get 3 percent of the profits) were grouped with all of the eight 3
percent California tracts in the first cause of action. The second cause of action was based
upon the two Santa Maria tracts (the Donovan Park units) for 50 percent of the profits. Why
the pleader grouped them this way is difficult to determine, other than to simplify his
arithmetic: 3 percent of the profits in one group in the first cause of action and 50 percent on
the two Santa Maria tracts in the second cause of action. The nearest conclusion that can be
reached is that the two Nevada tracts plus eight California tracts, all joined in the first cause
of action, constitute the total demand of $117,611 on the first cause of action, and $394,200
on the second cause of action, making the total of $511,811, the amount for which the writ
issued.
the amount for which the writ issued. Yet, if we assume (which we of course cannot) that the
tracts are of approximately the same size, the two Nevada tracts, the only ones that support a
writ of attachment, support two-tenths of the first cause of action, thus justifying a levy to the
extent of not more than $23,522, as against the actual levy of $511,811.
With this picture in mind, we directed counsel's attention to a comparatively recent case
(1960) not cited in any of the briefs which appeared directly in point, namely, Allen v.
Merchants Electric Co., 54 Cal.2d 67, 4 Cal.Rptr. 527, 351 P.2d 799. We instructed counsel
to file independent briefs commenting upon this case. The California case was on all fours
under the facts. The plaintiff had caused a writ of attachment to be issued based on four
causes of action which were set out. The court held that three of these causes of action were
not based upon a contract, express or implied, for the direct payment of money, but that the
remaining cause of action was based on such a contract. However, the good cause of action
was for the sum of $1,500 while the levy, based on all four causes of action, was for an
aggregate of $25,785. The court then said: Even if we assume that plaintiff could properly
have attached for the sum claimed in count three, it does not follow that the court erred in
discharging the writ. It has been held that if the amount of the indebtedness stated in the
attachment affidavit is much larger that the amount for which the remedy would lie and the
writ is issued for the greater sum, the attachment must be discharged. Doud v. Jackson, 102
Cal.App. 213, 220-221, 283 P. 107; Ralphs v. Bruns, 22 Cal.App. 153, 155, 133 P. 997; see
Kennedy v. California Sav. Bank, 97 Cal. 93, 98-99, 31 P. 846. Here plaintiff sought and
obtained an attachment for $25,758, and the demand in count three was for only $1,500.
In respondent's supplemental brief it is contended that the foregoing quotation is mere
dictum and that the case supports the order of the district court denying the motion in this
case to discharge the attachment. We are satisfied, however, that the quotation is in support of
its main holding and is well supported in the law by the authorities cited.
main holding and is well supported in the law by the authorities cited.
Respondent insists further that the issue of an excessive levy was not raised below and
therefore, under the consistent holdings of this court, it may not be raised for the first time on
appeal. We think that respondent misconstrues the issues as presented. Respondent
successfully argued to the court below that the payment in money or second deeds of trust
satisfied the demands of the statute to the effect that it must be based upon a contract, express
or implied, for the direct payment of money, and argued the same contention to this court.
When it appeared from the oral argument that this court was inclined toward appellant's view
that such was not the case, counsel then argued that as the contract based upon the two
Nevada tracts was for the direct payment of money, namely, a flat 3 percent of the profit, a
sum subject to simple computation, this in turn would support the entire attachment levy.
This inexorably thrust upon this court the necessity of holding whether such argument should
or should not prevail. Allen v. Merchants Electric Co., supra, is the complete answer to that
question.
The court below was in error in denying appellant's motion to discharge the attachment,
and such order must be reversed with costs.
It is so ordered.
____________
80 Nev. 415, 415 (1964) Brown v. Fletcher
EARL L. BROWN, Appellant, v. EUGENE FLETCHER, Also Known as GENE
FLETCHER, EUGENE SCHULER, DALE HORTON and WAYNE VAUGHN,
Respondents.
No. 4671
October 2, 1964 395 P.2d 525
Motion to vacate and set aside judgment of dismissal and for permission to file amended
complaint. The lower court denied motion and appeal was taken. The Supreme Court,
McNamee, J., held that plaintiff was not entitled to have judgment of dismissal set aside upon
ground that stipulation for dismissal with prejudice had been obtained through undue
influence, duress, coercion and fraud, even if he had been told that, if he did not withdraw
lawsuit, a defendant in that action would have plaintiff's license as contractor revoked
resulting in plaintiff's absolute financial ruin and if plaintiff's attorney told him that defendant
could really do that.
Affirmed.
Jones, Wiener & Jones, of Las Vegas, for Respondents.
Dismissal and Nonsuit.
Plaintiff was not entitled to have judgment of dismissal set aside upon ground that stipulation for
dismissal with prejudice had been obtained through undue influence, duress, coercion and fraud, even if he
had been told that, if he did not withdraw lawsuit, a defendant in that action would have plaintiff's license is
contractor revoked resulting in plaintiff's financial ruin and if plaintiff's attorney told him that defendant
could really do that.
OPINION
This is an action brought by Brown to recover from Horton 45 percent of certain real
property which Brown alleges that Horton agreed to convey to him.
Brown alleges that Horton agreed to convey to him. Whether the agreement was oral or in
writing is not alleged. The complaint was filed August 21, 1962.
On September 19, 1962 a stipulation was filed signed by Brown, his then attorney of
record, by each of the defendants, and by Jones, Wiener & Jones, the defendants' attorneys.
The parties therein stipulated to a dismissal of the action with prejudice. Pursuant to said
stipulation the court on September 19, 1962 entered a judgment of dismissal. On April 12,
1963, more than six months later, Brown moved the court to vacate and set aside the
judgment of dismissal and for permission to file an amended complaint. The motion was
made upon the ground that the stipulation for dismissal with prejudice was obtained through
undue influence, duress, coercion and fraud, also fraud upon the court. This motion was
heard on June 26, 1963. The record does not contain the minutes of such hearing. On July 3,
1963 the lower court signed a written order denying the motion. Appeal is from such order.
During oral argument counsel for appellant and for respondents conceded that the only
evidence offered by the parties and considered by the court in determining said motion were
the affidavits of Earl L. Brown, Joyce Hendrickson and Louisa Travis. It is appellant's
contention that the affidavit of Earl L. Brown shows extrinsic fraud by the following
averments therein: Affiant then contacted Albert M. Dreyer, an attorney, who filed a lawsuit
in this matter. Subsequent to this Albert M. Dreyer was driven up to my office in a pickup
truck by Thomas Hanley, an ex-felon charged with grand larceny with whom Albert M.
Dreyer lives, and came into my office and stated to me that Thomas Hanley had talked to
Dale Horton and Dale Horton said if affiant didn't withdraw this lawsuit then Dale Horton
would have affiant's Contractor's License revoked, that Dale Horton knew important people
in Reno and that he could accomplish this. That affiant then asked Albert M. Dreyer if he
could really do this and Albert M. Dreyer informed affiant that there was no question about it.
Affiant then replied that Albert M. Dreyer knew his position: that he was in a contract
worth over a quarter of a million dollars and that within the next six months he would be
involved in over a million dollars worth of construction and if affiant lost his Contractor's
License that it would result in his absolute financial ruin.
knew his position: that he was in a contract worth over a quarter of a million dollars and that
within the next six months he would be involved in over a million dollars worth of
construction and if affiant lost his Contractor's License that it would result in his absolute
financial ruin. Affiant then informed Albert M. Dreyer that he would have to sign and Albert
M. Dreyer pulled out a paper, already prepared, and affiant signed the same. Then Albert M.
Dreyer started back to the truck, at this time Thomas Hanley asked Albert M. Dreyer if he had
got it signed and Albert M. Dreyer replied that he had. Thomas Hanley then yelled to affiant
that he would never regret it and the two drove off. That there was absolutely no
consideration for this release, that in fact affiant would not have executed this release except
for the fraud, duress and coercion.
1

It is readily apparent that this evidence neither expressly nor impliedly shows any fraud on
the part of Dreyer or any of the respondents. Dreyer's statements are consistent with an honest
endeavor on his part to obtain a disposition of the lawsuit satisfactory to his client.
A lawyer does not guarantee results. He merely undertakes to use his best skill and
judgment. A result unsatisfactory to the litigant scarcely justifies a suit charging the lawyers
with fraud and conspiracy. Efforts of a lawyer to obtain an amicable disposition do not
subject him to a charge of treason. Eadon v. Reuler, 146 Colo. 347, 361 P.2d 445, 450.
Affirmed.
____________________

1
The Hendrickson and Travis affidavits substantially corroborate these averments.
____________
80 Nev. 418, 418 (1964) Raggio v. Campbell
WILLIAM J. RAGGIO, District Attorney, Washoe County, Nevada, Petitioner, v. RICHARD
G. CAMPBELL, DOROTHY DOROTHY, AUSTIN BOWLER, M. E. LUNDBERG, JOE
WILLIAMS, Members of the State Board of Parole Commissioners, and JACK FOGLIANI,
Warden of the Nevada State Prison, Respondents.
No. 4777
October 6, 1964 395 P.2d 625
Original proceeding in prohibition.
Proceeding by county district attorney to prohibit board of parole commissioners and state
prison warden against releasing on parole prisoners who had been sentenced to term of ten
years which might extend to life for second degree murder and had served only three years,
six months, and seventeen days. The Supreme Court, Badt, C. J., held that statute permitting
state board of parole commissioners at any time after expiration of minimum sentence to
direct parole of prisoner and not statute empowering board to establish rules and regulations
for parole of prisoner who has served one calendar year less good time credits applied to
prisoners sentenced to term of ten years which might extend to life.
Permanent writ issued.
William J. Raggio, District Attorney, Washoe County, In Propria Persona.
Harvey Dickerson, Attorney General, C. B. Tapscott, Deputy Attorney General, and
Samuel B. Francovich, Special Deputy Attorney General, for Respondents.
1. Pardon and Parole.
Statute empowering board of parole commissioners to establish rules and regulations under which
prisoner who has served one calendar year less good time credits may be paroled did not authorize
adoption of rule prohibiting prisoner who has not served six full months from applying for
parole.
served six full months from applying for parole. NRS 213.110, subd. 1.
2. Prohibition.
County district attorney who had prosecuted prisoners was person beneficially interested and was
therefore authorized to seek writ of prohibition to prevent board of parole commissioners and warden from
releasing prisoners on parole before they served minimum term. NRS 176.190, 200.030, subd. 4.
3. Prohibition.
Board of parole commissioners performed judicial function in granting parole to prisoners convicted of
second degree murder, and action of board was thus subject to arrest by writ of prohibition. NRS 34.320.
4. Statutes.
Administrative practice and construction clearly erroneous must not be followed.
Statute permitting board of parole commissioners at any time after expiration of minimum sentence to
direct parole of prisoner and statute empowering board to establish rules and regulations for parole of
prisoner who has served one calendar year less good time credits are not ambiguous. NRS 176.190,
213.110, subd. 1.
Commutation of minimum sentence is not function of board of parole commissioners. NRS 176.190,
176.490-176.520, 213.010-213.060, 213.110.
7. Statutes.
Statutes permitting state board of parole commissioners to direct parole of prisoner confined in state
prison at any time after expiration of minimum sentence and empowering board to establish rules and
regulations for parole of prisoner who has served one calendar year less good time credits are in pari
materia, and both must be given effect if possible. NRS 176.190, 213.110, subd. 1.
Statute permitting board of parole commissioners at any time after expiration of minimum sentence to
direct parole of prisoner applies to sentences in which minimum sentence over one year is prescribed and
maximum is either definite or indefinite, and statute empowering board to establish rules and regulations
for parole of prisoner who has served one calendar year less good time credits applies to sentences in
which only a maximum is set. NRS 176.190, 213.110, subd. 1.
Statute permitting state board of parole commissioners at any time after expiration of minimum sentence
to direct parole of prisoner and not statute empowering board to establish rules and regulations for
parole of prisoner who has served one calendar year less good time credits applied to
case in which prisoners had been sentenced to term of ten years which might extend
to life, and had served less than four years.
and regulations for parole of prisoner who has served one calendar year less good time credits applied to
case in which prisoners had been sentenced to term of ten years which might extend to life, and had served
less than four years. NRS 176.190, 200.030, subd. 4, 213.110.
OPINION
This is an original proceeding seeking a writ of prohibition, commenced by the district
attorney of Washoe County against the Board of Parole Commissioners and the warden of the
state prison. Petitioner asserts that the board granted parole to three persons convicted of
second degree murder who had been sentenced to a term of ten years which may extend to
life. NRS 200.030(4). The parole was granted so as to be effective after the prisoners had
served three years, six months, and seventeen days.
Petitioner contends that the provisions of NRS 176.190 control, and deprive the board of
any power to parole the three prisoners until they have served the minimum term of ten years,
less good behavior time. The section reads as follows:
The state board of parole commissioners may, at any time after the expiration of the
minimum term of imprisonment for which any prisoner was committed thereto, direct that
any prisoner confined in the state prison shall be released on parole upon such terms and
conditions as in their judgment they may prescribe in each case.
Respondents support the order releasing the prisoners on parole by reason of the
provisions of subsection 1 of NRS 213.110, reading as follows:
1. The board shall have power to establish rules and regulations under which any
prisoner who is now or hereafter may be imprisoned in the state prison and who shall have
served 1 calendar year, less good time credits, of the term for which he was sentenced and
who has not previously been more than three times convicted of a felony and served a term in
a penal institution, or who is imprisoned in a county jail, may be allowed to go upon parole
outside of the buildings or enclosures, but to remain, while on parole, in the legal custody
and under the control of the board and subject at any time to be taken within the
enclosure of the state prison or county jail."
be allowed to go upon parole outside of the buildings or enclosures, but to remain, while on
parole, in the legal custody and under the control of the board and subject at any time to be
taken within the enclosure of the state prison or county jail.
The board, apparently pursuant to the authority of this section, adopted rule No. 8, which
originally read as follows: No one may apply for parole in the State Prison who shall not
have served eight (8) months including statutory and work credits. This was thereafter
amended, and at the time in question read as follows: No one may apply for parole in the
State Prison who shall not have served six (6) full months.
[Headnote 1]
It may be observed that rule 8 adopted by the board adopts a rule which, negatively
expressed, restricts eligibility for parole to a prisoner who shall not have served six full
months. Even construing this as an affirmative fixing of eligibility for parole to any prisoner
who has served a full six months, such authority was not given the board by 213.110, which
restricted the promulgation of a rule as applicable only as applied to a prisoner who shall
have served one calendar year, less good time credits.
Several procedural questions must first be disposed of.
[Headnote 2]
1. Respondents assert that the district attorney of Washoe County is not a person
beneficially interested and is therefore not authorized to seek a writ of prohibition. We are
satisfied, however, that the district attorney of the county is the person peculiarly beneficially
interested so as to enable him to seek the writ. He is the public prosecutor. He prosecuted the
defendants in the district court as attorney for the State of Nevada. As such attorney he would
defend against an appeal from a judgment of conviction. The ultimate result of a conviction is
the execution of the penaltyin this case imprisonment for a minimum term of ten years,
which might extend to life. If the Board of Parole Commissioners attempted to release the
prisoners on parole and if the warden was about to carry out their order and if this was in
violation of the statute, who but the district attorney, as representing the state, would be
the person beneficially interested to arrest the threatened release?
Parole Commissioners attempted to release the prisoners on parole and if the warden was
about to carry out their order and if this was in violation of the statute, who but the district
attorney, as representing the state, would be the person beneficially interested to arrest the
threatened release? In State ex rel. Colvin v. Superior Court, 159 Wash. 335, 293 P. 986, 73
A.L.R. 555, the prosecuting attorney was deemed to be a person beneficially interested where
he sought to prevent the discharge of the defendant confined as a criminally insane person.
We think the same reasoning applies to the instant case.
This conclusion is re-enforced by rule 19 adopted by the board.
On behalf of an applicant [for parole] who has been convicted of felony, evidence of facts
relating to the commission of the crime other than that contained in the record may be
presented only by witnesses, who know the circumstances, appearing and testifying under
oath, or by depositions or affidavits, copies of which shall have been served upon the District
Attorney and District Judge of the County in which the indictment was found, at least (30)
days before the hearing, unless for good cause shown this time be shortened by the Board.
(Emphasis supplied.) This rule clearly recognizes the right of the district attorney to appear
when an applicant desires to present further evidence, before the board, relating to the
commission of the crime other than that contained in the record.
Rule 14 requires all oral testimony to be presented under oath, and rule 17 allows a total of
10 minutes to attorneys in the presentation of each case. Such allowance of time to
attorneys is not restricted to attorneys for the applicant, but may include the attorney for the
state. The district attorney, who prosecuted the case in the trial court, would most assuredly
be expected to appear on behalf of the state to cross-examine the witnesses for the parole
applicant before the board.
The opposition to the writ on the ground that the district attorney is not authorized to
seek it is without merit.
district attorney is not authorized to seek it is without merit.
2. It is next contended that the state Board of Parole Commissioners does not exercise
judicial or quasi-judicial power and that its action accordingly may not be arrested by a writ
of prohibition. NRS 34.320 expressly makes the writ available not only as against judicial
tribunals but also to any tribunal, corporation, board or person exercising judicial functions,
when such proceedings are without or in excess of the jurisdiction of such tribunal,
corporation, board or person.
[Headnote 3]
This court in Van Heukelom v. Nevada State Board of Chiropractic Examiners, 67 Nev.
649, 224 P.2d 313, a proceeding in which the same point was raised, held that the action
proposed to be taken by the State Board of Chiropractic Examiners, in revoking a license,
was clearly a judicial function. It distinguished the action, in view of its finality, from one
which would be advisory in nature. The same situation is true here. The action of the
respondents was in no respect advisory but would, unless restrained, result in the actual
release of the inmates on parole in violation of the statute and of the minimum sentence
imposed by the district court. See Annot., 115 A.L.R. 3; 159 A.L.R. 627; 42 Am.Jur.,
Prohibition 14, at 153; 73 C.J.S., Prohibition 11, at 64; State ex rel. Murphy v. Superior
Court, 30 Ariz. 332, 246 P. 1033, 47 A.L.R. 401.
3. It is next contended by the respondents that the writ will not issue except in a clear case
of threatened violation of a statutory prohibition, and refers to a letter received by the parole
officer from the attorney general, which on its face, would modify the effect of an official
opinion of the attorney general, rendered some months prior. The opinion held that the
provisions of NRS 213.110, above quoted, do not apply to prisoners who have been
sentenced to a minimum term of two or more years. As this is the conclusion to which we
have likewise come, it would serve no purpose to discuss either the formal opinion (with
which we agree) or the subsequent letter advising the parole officer that the Board of
Parole Commissioners should continue its practice of applying NRS 213.110 to all cases
{with which we do not agree).
the subsequent letter advising the parole officer that the Board of Parole Commissioners
should continue its practice of applying NRS 213.110 to all cases (with which we do not
agree).
[Headnotes 4-6]
4. Respondents further support their opposition to the writ on the ground that the
respondents have in the years 1959, 1960, 1961, 1962, and 1964 released prisoners on parole
after having served less than their minimum sentence, asserting their right so to do, and that
this administrative construction and practice should be followed. However, when the
administrative practice and construction are clearly erroneous they must not be followed.
Such is the case here, particularly as the two sections of the statute to be construed are not, as
will hereafter appear, ambiguous. Board of School Trustees v. Bray, 60 Nev. 345, 109 P.2d
274; 82 C.J.S., Statutes 359(b), at 771; Gunn v. State Board of Equalization, 123
Cal.App.2d 283, 266 P.2d 840. The danger and the fallacy of accepting the administrative
interpretation in the present instance is emphasized by the respondents' answer referring to a
number of examples of the release of prisoners on parole before the expiration of the
minimum term, and refers to action on September 30, 1964, whereunder one prisoner
serving a minimum' sentence of ten years to life, * * * was not paroled but was discharged
after having served four years and nineteen days, and this discharge became effective July 7,
1964. This was not a release from actual confinement within the prison walls wherein the
particular prisoner was still held under parole, but was in effect a commutation of a minimum
10-year sentence to four years and nineteen days. This was not a function of the Board of
Parole Commissioners. Conditions governing an application for commutation are governed
by NRS 176.490 to 176.520, and the jurisdiction to consider applications for commutation of
sentence is vested in the state Board of Pardons Commissioners under NRS 213.010-213.060.
The latter group of sections also governs the procedure to be followed, including service of a
copy of the application upon the district attorney.
upon the district attorney. If, then, we are to follow the administrative interpretation, we are
faced with an interpretation under which the Board of Parole Commissioners had usurped the
authority of the Board of Pardon Commissioners in commuting a sentence.
[Headnotes 7-9]
5. We turn, then, to the two statutes involved. It is not disputed that NRS 176.190 and
NRS 213.110 are in pari materia, that they are part of the same statute, and that they must
both be given effect if possible. 82 C.J.S., Statutes 366, at 801, 802-807; People v. Hale,
156 Cal.App.2d 478, 319 P.2d 660; Curtiss-Wright Corp. v. Passaic Valley Water Com., 84
N.J.Super. 197, 201 A.2d 398. Effect can reasonably be given to both of the considered
sections by applying NRS 176.190 to those sentences in which a minimum sentence of over
one year is prescribed, and the maximum is either definite or indefinite, such as the sentence
in the instant case. NRS 213.110 can be given effect by application to sentences in which
only a maximum is set, but no minimum. For example, NRS 197.010, dealing with bribery,
prescribes a term not to exceed ten years, etc. There are some 46 statutory offenses which set
out punishment in the state prison with a set maximum term but with no stated minimum,
1
and some 30 statutory offenses which set punishment in terms of not less than one year nor
more than some set maximumthree, five, seven, ten, or fourteen years. Thus NRS 213.110
can be applied to sentences under such sections, while still applying NRS 176.190 to offenses
where the minimum is set for a term in excess of one year.
State ex rel. Murphy v. Superior Court, 30 Ariz. 332, 246 P. 1033, is directly in point.
Under a similar statute as that here considered, the court said: The Legislature having
provided for a minimum and a maximum term of sentence, it certainly accords with reason to
assume that it had a purpose in so doing. If the Legislature intended that the board of
pardons and paroles could release a prisoner at any time after commitment to the state
prison, why did it not provide for the maximum sentence only?
____________________

1
Under NRS 176.180(2) [w]here no minimum term of imprisonment is prescribed by law, the court shall fix
the minimum term in its discretion at not less than 1 year nor more than 5 years * * *. (Emphasis supplied.)
Legislature intended that the board of pardons and paroles could release a prisoner at any time
after commitment to the state prison, why did it not provide for the maximum sentence only?
For, if petitioners' contention is correct, there would be no reason for a minimum sentence, as
it could be ignored by the board. The reason and the language of the legislation can point to
but one conclusion, and that is that a prisoner sentenced to an indeterminate sentence should
at all events serve the minimum thereof.
The adoption of the interpretation relied upon by respondents would make ineffective so
many sections of the indeterminate sentence law in felony convictions that the whole matter
of indeterminate sentence would be left in the greatest confusion. As against this, the
interpretation that we adopt is not only a recognition of the clear intention of the legislature,
but is in all respects logical.
The alternative writ of prohibition heretofore issued is hereby made permanent.
____________
80 Nev. 426, 426 (1964) Southern Pacific Co. v. Harris
SOUTHERN PACIFIC COMPANY, a Corporation, KENNETH K. KNUDSON, and EARL
ASWEGAN, Appellants, v. ELEANOR JEAN HARRIS, Respondent.
No. 4748
October 13, 1964 395 P.2d 767
Craven, Judge.
Action by motorist for injuries received when automobile collided with diesel engine unit.
The trial court rendered judgment for the plaintiff, and the defendants appealed. The Supreme
Court, Thompson, J., held that evidence of prior accidents at same railroad crossing as that at
which motorist's vehicle and diesel engine collided was not admissible on issue of
negligence of railroad in respect of condition of the crossing, in absence of evidence
indicating that physical condition of the crossing itself was either the proximate or a
concurring cause of the collision.
that at which motorist's vehicle and diesel engine collided was not admissible on issue of
negligence of railroad in respect of condition of the crossing, in absence of evidence
indicating that physical condition of the crossing itself was either the proximate or a
[Rehearing denied November 6, 1964]
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Appellants.
Murray V. Dolan, of Sparks, for Respondent.
1. Negligence.
Generally, evidence of prior accidents at same place as accident involved in case at bar is not admissible
on issue of defendant's negligence in respect of condition of the place, but there are exceptions to that rule.
2. Railroads.
Evidence of prior accidents at same railroad crossing as that at which motorist's vehicle and diesel engine
collided was not admissible on issue of negligence of railroad in respect of condition of the crossing, in
absence of evidence indicating that physical condition of the crossing itself was either the proximate or a
3. Railroads.
Testimony that at times prior to collision locomotives of railroad company had traversed the crossing
without using whistles, bells, or engine lights was not admissible on question of conduct of engineer and
fireman at time of the collision.
4. Railroads.
Photographs of railroad crossings other than that at which collision between diesel engine and automobile
occurred were inadmissible against railroad company which maintained crossing at which the collision
occurred in manner that more than complied with requirements of regulatory agencies.
Authority to prescribe the particular facilities that may be regarded as essential to prevent railroad
crossing accidents lies primarily within legislative rather than judicial sphere; the judicial function is to
decide whether the crossing as it existed at the time of the collision was maintained with reasonable care in
light of the conditions present.
6. Railroads.
Additional safety installations at railroad crossings other than that at which collision occurs may not be
employed to require higher duty of railroad company with regard to maintaining the crossing at which
collision occurs.
7. Railroads.
Absent legislative demand or requirements of custom and usage, issue of ordinary care in maintaining
railroad crossing must be decided in light of conditions existing at place of the crossing accident.
8. Railroads.
Evidence did not authorize instruction about wanton misconduct as possible predicate for liability of
railroad for injuries sustained by motorist in collision at crossing and for punitive damages.
9. Railroads.
Testimony of motorist that she did not see engine which collided with automobile did not authorize
inference that its lights were not shining in view of her testimony that her attention was drawn away from
the engine by other activity on the tracks.
10. Railroads.
Last clear chance doctrine was not applicable in case wherein fireman warned engineer that motorist's
vehicle was entering upon track and in peril when engine was about 30 feet from the spot of impact and
could not be stopped in time, regardless of whether engineer or fireman should have seen the automobile
earlier, since if they had, they would have seen it stopped at a safe place.
OPINION
During the evening of January 8, 1963, a railroad crossing accident occurred at the
intersection of the Southern Pacific tracks and Seventeenth Street in Sparks, Nevada. A car
driven by the plaintiff Harris collided with a diesel engine unit operated by the defendant
Southern Pacific Company. The plaintiff sustained personal injuries and property damage.
She claims that the collision was proximately caused by the negligence and wanton
misconduct of the defendant Southern Pacific Company and its employees and codefendants
Knudson, the engineer, and Aswegan, the fireman. The defendants denied her charges of
negligence and wanton misconduct. In addition, they asserted the contributory negligence of
the plaintiff as a defense to the charge of negligence. After the evidence was received the
court instructed the jury on the law and then submitted the case to it for decision. Included
among the instructions given were instructions about last clear chance, wanton
misconduct and punitive damages.
among the instructions given were instructions about last clear chance, wanton misconduct
and punitive damages. The jury favored the plaintiff with its verdict, awarding $10,000
compensatory and $25,000 punitive damages against all defendants. Judgment was entered
accordingly. This appeal followed. We reverse and remand for a new trial primarily because
the lower court erroneously permitted the jury to consider evidence which fatally infected the
fairness of the trial. However, we deem other assigned errors to have merit and will discuss
them in order to preclude their recurrence should the cause be tried again.
The collision happened at night. The weather was clear and the road dry. Four sets of
railroad tracks running in an east-west direction intersect with Seventeenth Street which runs
in a north-south direction. The intersection is within the Southern Pacific yard. After entering
the yard from the east the diesel engine unit was cut loose from the train it had been pulling.
It proceeded westerly across the intersection to a cross-over approximately 288 feet west of
Seventeenth Street where it crossed-over to the northernmost track and commenced
backing in an easterly direction toward the Seventeenth Street intersection. The positive,
affirmative testimony was that the rear headlights of the engine were on, the bell was rung,
and the whistle (two longs, a short, and a long) was blown. The engine proceeded easterly at a
speed of about eight miles per hour. Meanwhile the plaintiff approached the intersection from
the south, driving her car north on Seventeenth Street. She had traversed the intersection
many times before. She observed the flashing amber light over the southern entrance to the
intersection which served to further warn of the existence of the railroad crossing. She
stopped before proceeding across the tracks. Her vision to the east and west was not
obstructed. No car was approaching or crossing the intersection from the opposite side of the
tracks. She did not see the diesel engine, nor did she hear the whistle. She did hear the bells
just before impact. The fireman first saw the car as it was entering on the tracks.
tracks. At that moment the engine was estimated to be about 30 feet from the spot where the
collision happened. He shouted a warning and the engineer applied the emergency brake. An
expert testified that the minimum stopping distance for the engine at the speed of eight miles
per hour would be 37 feet from the time the brake valve handle was placed in emergency
position.
The evidence does not show that the intersection was inadequately illuminated, nor for any
deducible reason inherently dangerous to vehicular traffic on Seventeenth Street; to the
contrary, the crossing was in good repair. The mercury vapor lights illuminating the crossing
were in accordance with the design of the Sierra Pacific Power Company and, by actual test,
met the national lighting standards for crossings. The lighting more than complied with the
requirements of the applicable Sparks city ordinance and was approved by the city engineer.
Indeed the plaintiff does not contend that the Southern Pacific Company maintained the
crossing in violation of any statutory or ordinance requirements. With this story of the
collision in mind we turn to discuss the prejudicial evidence which was received over
vehement objection.
1. Prior accidents at the same crossing. During presentation of the plaintiff's case in
chief, six police officers of the city of Sparks were called as witnesses. Each was permitted to
testify to the fact that he had investigated one or more accidents (one of them had investigated
five accidents) which had occurred at the Seventeenth Street crossing at various times before
January 8, 1963 (the date of the collision here involved). It was the theory of plaintiff at trial
and in this court that the mere occurrence of many prior accidents at the same crossing,
without more, tends to show that the crossing was inherently dangerous and, further, that the
Southern Pacific Company was placed on notice to do something about it. We are referred
to the annotation at 70 A.L.R.2d 167 entitled, Admissibility, on the issue of the defendant's
negligence in respect of condition of place where plaintiff was injured, of evidence of prior
accidents or injuries at same place.
Most of the cases there collected do not support the contention of plaintiff-respondent.
[Headnotes 1, 2]
Though it is true that there exist exceptions to the general rule precluding evidence of prior
accidents at the same place, none of them touches the case before us. Here the accident
involved two moving objects, a car and a diesel engine, each operated by a person. The
collision unquestionably was proximately caused by the failure of one or both of the operators
to exercise ordinary care under the circumstances. There is no evidence to indicate that the
physical condition of the crossing itself was either the proximate or a concurring cause of the
collision. [Cf. Powell v. N.C.&O. Railway, 28 Nev. 40, 78 P. 978, where the railroad
company had a steam whistle on its shops six feet from the line of the street along which the
plaintiff was driving. The plaintiff's horse took fright at the sounding of the whistle and ran
away, injuring the plaintiff. In that case the court permitted a witness to testify that, on
another occasion, the company's whistle had frightened a team of horses and caused it to run
away. The evidence was allowed to show the dangerous character of the whistle at the place
it was used and was directly relevant to the issue of causation. See also Longabaugh v. The
Virginia & Truckee R.R. Co., 9 Nev. 271.] Indeed most of the cases permitting evidence of
prior accidents at the same place involve a specific physical condition, usually permanent or
continuing in character (Cf. El Dorado Club, Inc. v. Graff, 78 Nev. 507, 377 P.2d 174), which
is claimed to have caused not only the accident in issue but the prior accidents as well. The
case before us is not such a case. The following authorities are among many that support our
view: Lowry v. Seaboard Airline R. Co., 171 F.2d 625; Bledsoe v. Missouri, K.&T.R. Co.,
149 Kan. 741, 90 P.2d 9; Johnson v. Maine Central R. Co., 141 Me. 38, 38 A.2d 884. We
refuse to follow a contrary expression by the court in Evans v. Pennsylvania R. Co., 255 F.2d
205.
We hold that evidence of the occurrence of prior collisions at the same railroad crossing
was not probative of any issue in this case, and should have been excluded.
[Headnote 3]
2. Prior negligence of other train crews. In addition to receiving evidence concerning the
occurrence of prior collisions at the same crossing, the lower court allowed witnesses to
testify that, at prior times, locomotives of the defendant company had traversed the crossing
without whistles being blown, bells rung, or engine lights turned on. It is not asserted that
such occurrences were so frequent as to constitute a habit; to the contrary, it is conceded that
occasionally such conduct happened. Citation of authority is unnecessary to support the
proposition that the personal conduct of the employees in control of the locomotives at such
prior times is not probative of the conduct of the employees (engineer and fireman) on the
occasion in question. Such evidence should not have been received.
[Headnotes 4-7]
3. Evidence as to safety devices at other railroad crossings maintained by the company.
The trial court permitted the plaintiff to introduce photographs of twelve additional railroad
crossings maintained by the defendant company in the general Reno-Sparks area. Some of
them show the presence of automatic gates and other safety devices which had not been
installed or utilized at the Seventeenth Street crossing. Such evidence should not have been
allowed. The Seventeenth Street crossing more than complied with the requirements of
regulatory agencies. It is not contended otherwise. Nor does the record show that custom and
general use require the presence of automatic gates, etc., at all railroad crossings. The
authority to prescribe the particular facilities that may be regarded as essential to prevent
crossing accidents, lies primarily within the legislative rather than the judicial sphere. The
judicial function is to decide whether the crossing, as it existed, was maintained with
reasonable care in the light of conditions there present. Lowry v. Seaboard Airline R. Co.,
171 F.2d 625. With this general background in mind it is manifest that additional safety
installations at other crossings involving different conditions {density of traffic,
topography, etc.) may not be employed to require a higher duty of the company.
at other crossings involving different conditions (density of traffic, topography, etc.) may not
be employed to require a higher duty of the company. What is ordinary care at one crossing
may be quite different from ordinary care at another. Absent legislative demand or the
requirements of custom and usage, the issue of ordinary care must be decided in the light of
conditions existing at the place of the crossing accident.
The reception of the evidence we have discussed casts serious doubt upon the reliability of
the verdict. We do not hesitate to declare that such evidence prejudiced the defendants' right
to a fair trial.
[Headnotes 8, 9]
The lower court instructed the jury about wanton misconduct as a possible predicate for
liability and punitive damages. A fair reading of the record fails to disclose a basis in fact for
that instruction. As stated initially, the crossing was not causally defective, the lighting was
adequate, and the warning devices provided for the operators of the diesel engine were in
usethe lights, the whistle and the bells. Affirmative, positive evidence from interested and
disinterested witnesses established all of these facts. They are not controverted in the record,
except by an impermissible inference from the negative testimony of the plaintiff that she did
not see the engine, from which the inference is drawn that its lights were not shining. The
inference is not permissible on this record because the plaintiff testified that her attention was
drawn to the east (and away from the approaching diesel engine) by other activity upon the
tracks. Her failure to see the engine is thus explained. There is absolutely nothing to support
her claim that the defendants or any of them intentionally performed an act which they knew
or should have known would very probably cause harm. Rocky Mountain Produce v.
Johnson, 78 Nev. 44, 369 P.2d 198; Crosman v. Southern Pacific Co., 44 Nev. 286, 194 P.
839. Even if the jury refused to believe the witnesses who testified that the engine's lights
were on (which they were at liberty to do), a wanton misconduct instruction was improper,
Crosman v. Southern Pacific Co., supra, in view of all other relevant evidence in the case.
Pacific Co., supra, in view of all other relevant evidence in the case. We are forced to believe
that the initial errors during trial regarding the reception of prejudicial evidence (heretofore
discussed) caused the court to give the wanton misconduct instructionthe instruction must
have rested upon such inadmissible evidence, for the testimony about the collision at hand
does not supply a foundation for it. How easy it is for one mistake to cause another to occur.
[Headnote 10]
Seldom do we believe it appropriate to mention an error which has not been assigned on
appeal. However, as this matter must be remanded for another trial, it seems wise to do so in
order to preclude its recurrence and the possibility of a blemished verdict. The record shows
that the defendants objected to the last clear chance instruction given by the court. The record
as it now stands does not permit the application of that doctrine. When the fireman warned
the engineer that the plaintiff's car was entering upon the track (and in peril), the engine was
about 30 feet from the spot where the impact occurred and traveling at a speed of eight miles
per hour. The only evidence is that the engine, in such circumstances, could not stop in time
with the emergency brake in operation. It is not an answer to assert that the doctrine of last
clear chance was applicable because the engineer or fireman should have seen the plaintiff's
car at an earlier time. Had they observed it sooner they would have seen it stopped at the
crossing in a safe place and not in a position of peril, and could reasonably assume that it
would remain there. Therefore, the instruction should not have been given. There was no last
clear chance to avoid the collision. Duran v. Mueller, 79 Nev. 453, 386 P.2d 733; Cordano v.
Pac. Intermtn. Exp., 74 Nev. 119, 324 P.2d 232; Ferris v. Albright's Electric Co., 70 Nev.
528, 275 P.2d 755.
Reversed and remanded for new trial.
____________
80 Nev. 435, 435 (1964) Ex Parte Merton
In the Matter of the Application of JESSE M.
MERTON for a Writ of Habeas Corpus.
No. 4817
October 14, 1964 395 P.2d 766
Original petition for writ of habeas corpus.
The Supreme Court held that remedy provided by statutory amendment of appeal to
Supreme Court from denial of habeas corpus by district judge precludes additional and
independent application for habeas corpus to justice of Supreme Court where no new grounds
are asserted and applicant has not availed himself of right to appeal to Supreme Court.
Petition denied.
James C. Martin, of Carson City, for Petitioner.
Habeas Corpus.
Remedy provided by statutory amendment of appeal to Supreme Court from denial of habeas corpus by
district judge precludes additional and independent application for habeas corpus to justice of Supreme
Court where no new grounds are asserted and applicant has not availed himself of right to appeal to
Supreme Court. NRS 34.380, subds. 1-3.
OPINION
Per Curiam:
Jesse M. Merton, petitioner above named, heretofore applied to Honorable Frank B.
Gregory, Judge of the First Judicial District Court of the State of Nevada, in and for the
County of Ormsby, for a writ of habeas corpus, claiming that he was unlawfully detained in
the state penitentiary by reason of the fact that he was mentally incapable of understanding his
plea of guilty to the charge of burglary in the District Court of the Second Judicial District, in
and for the County of Washoe, whereunder he was adjudged guilty and sentenced to a term in
the state penitentiary for not less than one nor more than fourteen years; that at the time of his
plea he was suffering from severe aphasia and was entirely lacking of understanding of
the proceedings in court.
and was entirely lacking of understanding of the proceedings in court. At the time he pleaded
guilty of said charge of burglary he was represented in court by his attorney Fred Nelson. The
trial judge in said proceeding, being No. 202258 in said Second Judicial District Court,
Honorable Thomas O. Craven, had prior thereto postponed his trial upon a written statement
filed by a psychiatrist Dr. Leslie H. Gould. However, petitioner alleges that a few days later,
without prior consultation with Dr. Gould or Mr. Nelson, petitioner was called into court in
the same mental condition and entered a plea of guilty.
Judge Gregory of said First Judicial District Court filed an opinion reciting, among other
things, the following:
It clearly appears to the Court, the Petitioner having been represented by counsel at the
trial hereof, which was interrupted during the course thereof by a plea of guilty,' that the
Petitioner was not so seriously injured prior to his trial as to render him mentally unfit to
participate thereto, and to fully assist his counsel, and that his attorney so believed or he
would have asked the discontinuance of the trial, for purposes of requesting a mental
examination of the Petitioner, as by law provided.
The Court finds that the Petitioner, during the course of his trial, knew that he was on
trial for Burglary in the First Degree, and that his plea of guilty' entered during the course of
a trial, by which the same was terminated, was an informed and knowledgeable decision on
his part, entered with the full assent of his attorney.
The Court further finds, that District Judge Craven had jurisdiction over the Petitioner
and over the cause when he entered the Judgment and Order of Commitment on May 22,
1963, after acceptance of the plea, and finds that the Petitioner is, therefore, legally held in
custody by the Warden of the Nevada State Prison.
He was thereupon denied relief, the alternative writ was quashed, and the prisoner was
remanded to the custody of the warden of the Nevada State Prison until discharged pursuant
to law.
discharged pursuant to law. Upon the hearing of said writ before Judge Gregory, he was
represented by attorney James C. Martin appointed for that purpose.
The petitioner took no appeal from the denial of the writ by Judge Gregory but permitted
the statutory time for such appeal to elapse. He thereafter filed his original petition in this
court. We entered an order permitting him to appear in forma pauperis. Subsection 1, 2, and 3
of NRS 34.380 read as follows:
1. The writ of habeas corpus may be granted by each justice of the supreme court or
judges of district courts at any time; provided:
* * * * *
2. When an application is made to a justice of the supreme court for a writ of habeas
corpus and the same shall be entertained by the justice, or the supreme court, and thereafter
denied, the person making such application shall not have the right, nor the power, to submit
thereafter an application to the district judge of the district wherein such applicant is held in
custody, nor to any other district judge in any other judicial district of the state, which
application shall be premised upon the illegality of the same charge upon which such
applicant is held in custody.
3. An applicant who has petitioned the district judge of a judicial district, as provided in
this chapter, and whose application for such writ is denied, may appeal to the supreme court
from the order and judgment of the district judge or district court refusing to grant the writ or
to discharge the applicant, but such appeal shall be taken within 30 days from the day of entry
of the order or judgment.
As noted, subsection 1 of NRS 34.380 provides that the writ may be granted by each
justice of the supreme court, and subsection 3 of said section provides for an appeal to the
supreme court from the denial of a writ by a district judge or district court, but that appeal
shall be taken within 30 days from entry of the order or judgment.
This court is of the opinion that when the legislature amended the habeas corpus statute to
provide for an appeal to the supreme court from a denial of the writ by a district judge,
this remedy precluded an additional and independent application for a writ of habeas
corpus to a justice of the supreme court where no new grounds are asserted and where
he did not avail himself of the right of an appeal to this court.
appeal to the supreme court from a denial of the writ by a district judge, this remedy
precluded an additional and independent application for a writ of habeas corpus to a justice of
the supreme court where no new grounds are asserted and where he did not avail himself of
the right of an appeal to this court.
The present application is denied and the proceedings dismissed.
____________
80 Nev. 438, 438 (1964) Morford v. State
LESTER E. MORFORD, III, Appellant, v. THE
No. 4666
October 21, 1964 395 P.2d 861
Appeal from the Second Judicial District Court, Washoe County; John W. Barrett, George
E. Marshall, and Peter Breen, Judges.
Prosecution for murder. After denial of his motions for a continuance defendant withdrew
his plea of not guilty and entered a plea of guilty. From a conviction in the lower court,
defendant appealed. The Supreme Court, McNamee, J., held that defendant's confession was
admissible where it had been given voluntarily and where defendant had been advised of his
constitutional rights.
Affirmed.
Stanley H. Brown and Leo P. Bergin, and Bradley & Drendel, of Reno, for Appellant.
Harvey Dickerson, Attorney General, and William J. Raggio, District Attorney, Washoe
County, for Respondent.
1. Criminal Law.
The granting of a continuance of a criminal case is within the discretion of the trial court.
2. Criminal Law.
Record in murder case failed to show an abuse of discretion in denial of motion for continuance
on basis that publicity in connection with an unrelated case would prejudice the
defendant.
in denial of motion for continuance on basis that publicity in connection with an unrelated case would
prejudice the defendant.
3. Criminal Law.
Denial of motion for continuance based on inability of doctor to testify in murder case was not error
where he did in fact appear and testify and where appearance of medical expert who was defendant's
original choice and with whom doctor had conferred was not shown to be necessary.
4. Criminal Law.
Propriety of denial of motions for continuance became moot upon defendant's plea of guilty to murder
charge.
5. Criminal Law.
District attorney's admonition that defendant had right to counsel and did not have to answer any
questions met all constitutional requirements so as to make defendant's confession in murder case
admissible.
6. Criminal Law.
Voluntarily given confessions are admissible.
7. Criminal Law.
There is no duty to warn a defendant of consequences of his making a statement or that it may be used
against him.
8. Criminal Law.
The corpus delicti is established by guilty plea.
9. Criminal Law.
Defendant accused of murder was not prejudiced by reception in evidence of colored photographs of
deceased portraying his bullet wounds.
10. Criminal Law.
Fact that photographs of a murder victim are in color and thus more revolting and gruesome than they
otherwise would be is not a ground for their exclusion.
11. Homicide.
There was ample evidence to conclude that defendant, a glue sniffer, was in full possession of his senses
when he shot the victim and to support conviction for first degree murder despite testimony with respect to
effects of toluene vapors upon him.
OPINION
On October 3, 1962 an information was filed against the defendant which contained a
charge that on August 22, 1962, within the County of Washoe, State of Nevada, he murdered
Jack A. Foster by shooting him in the head with a pistol.
At the time of his arraignment on said charge and while he was represented by his
attorney, on October 1S, 1962 he entered a plea of not guilty.
while he was represented by his attorney, on October 18, 1962 he entered a plea of not guilty.
Thereupon, it was ordered that a trial by jury be held on December 3, 1962. On November 21,
1962 defendant appeared in court with his attorney who moved the court to continue the trial
setting. The court thereupon set January 28, 1963 as the time for trial. Thereafter, without
objection by defendant, the matter was further continued until April 22, 1963 for trial. On
March 18, 1963 upon stipulation of counsel the trial date was reset for April 29, 1963.
On April 18, 1963 defendant's counsel filed a written motion for an order continuing the
trial from April 29, 1963 to a date when the prejudicial effect of the highly publicized death
of Sonja McCaskie, deceased, will not influence unfairly the course of judicial proceedings.
This motion further stated that to proceed to trial under the prejudice and hostile sentiment of
the general public resulting from newspaper, radio, and television publicity connected with
the death of Sonja McCaskie would deprive the defendant of a fair trial and due process of
law. The affidavit of Stanley H. Brown, one of defendant's attorneys, relates the daily
accounts given by news sources in Washoe County relating to the death of Sonja McCaskie
on April 6, 1963; that because of the similarity between the two homicides, particularly with
respect to the age and prior history of the accused in each case, the publicity given the
McCaskie case highly prejudiced the defendant herein.
The written motion for continuance was denied on April 19, 1963. Thereafter, on said
last-mentioned date, defendant's counsel filed another written motion for an order continuing
the trial from April 29, 1963 to a date not less than 30 days from April 19, 1963 upon the
ground of the inability of a witness, Dr. Leslie H. Gould, to testify on the 29th day of April,
1963. This second written motion for continuance also was denied on April 19, 1963.
On April 26, 1963 defendant appeared in court with counsel and requested permission to
withdraw his plea of not guilty and to enter a plea of guilty without specification of a
degree.
of not guilty and to enter a plea of guilty without specification of a degree. Permission to do
so was granted. The plea of not guilty was withdrawn and defendant entered a plea of guilty.
The trial setting for April 29, 1963 was then vacated. Thereafter pursuant to NRS 200.030
this court entered an order appointing Honorable George Marshall, Judge of the Eighth
Judicial District, and Honorable Peter Breen, Judge of the Fifth Judicial District, together
with Honorable John W. Barrett, before whom the said plea of guilty was made, to determine
the degree of the crime, and to give sentence accordingly. On July 15, 1963 the three-judge
panel proceeded to hear evidence to determine the degree of the crime and the sentence. Upon
the conclusion of the hearing the panel determined that the defendant was guilty of murder in
the first degree and fixed the penalty at death. Judgment was entered accordingly. Appeal is
from the denial of the two written motions for postponement of trial
1
and from the said
judgment.
At approximately 5:00 A.M., on August 22, 1962, Jack Foster, the victim, and his wife,
Patricia, were arranging their clothes and other belongings in their car prior to departure from
a Reno motel in which they had been staying. They returned to their room for an inspection to
see if anything had been forgotten. At that time the defendant entered their room through the
open door and held them at pistol point. When he found the Fosters were without funds he
ordered the deceased to take him out of town. Patricia joined them in the car. Deceased did
the driving, and Patricia sat beside him. Defendant sat next to Patricia in the front seat at her
right. Deceased drove the car to Truckee, then along the east side of Lake Tahoe to the Mt.
Rose turnoff. He turned there onto the Mt. Rose Highway to a point where defendant directed
him to turn off and stop. At all times in the car defendant held the gun in his right hand.
____________________

1
This action of the lower court is not appealable (NRS 177.060) but may be considered on the appeal from
the judgment.
hand. Defendant then tied deceased's hands to the steering wheel. After a few moments and
while it was still dark defendant shot Foster twice through the head. He removed the body of
Foster from the car, drove on a short distance, stopped and had sexual intercourse with Mrs.
Foster under the constant threat of the gun. Defendant then drove Mrs. Foster over Mt. Rose
Highway to Steamboat Springs, between Carson City and Reno, and turned off the road.
There again he had sexual intercourse with Mrs. Foster under the same circumstances as the
first time. He then drove to Carson City where Mrs. Foster jumped from the car. Defendant
was apprehended within an hour thereafter and took the officers to the spot where he had
placed deceased's body. The same day he gave a detailed confession of the foregoing facts.
Mrs. Foster in her testimony during the trial substantiated every material fact in the
confession.
The errors assigned will be discussed separately.
[Headnote 1]
1. Defendant contends that the court erred in refusing to grant his motion for continuance
after the publicity broke with relation to the McCaskie case. The law is settled in Nevada that
the granting of a continuance of a criminal case is within the discretion of the trial court. State
v. Nelson, 36 Nev. 403, 136 P. 377.
[Headnote 2]
There is nothing appearing from the record to suggest an abuse of discretion in the denial
of the motion for continuance on the ground that publicity in connection with an unrelated
case would prejudice the defendant. Cf. Robinson v. United States, 128 F.2d 322 (D.C. Cir.).
[Headnotes 3, 4]
2. The denial of the motion for continuance based on the inability of Dr. Leslie H. Gould
to testify is without merit. After Dr. Gould was contacted by the defense he was able to confer
with Dr. Raymond Brown who was the defense's original choice for the expert testimony
regarding the defendant's mental condition. No showing was made at the trial by the
defendant that Dr.
showing was made at the trial by the defendant that Dr. Brown's appearance was necessary.
He was not called as a witness and Dr. Gould did in fact appear and testify. In any event the
question whether the denial of the motions for continuance was proper became moot upon
defendant's plea of guilty. See State v. Stoesser, 183 A.2d 824 (Del.Super. 1962).
[Headnote 5]
3. At the time his confession was given as aforesaid
2
the defendant stated that he was
willing to give a complete statement on the matter. No promises of leniency or reward were
made in return for his making a statement. No coercion of any kind was used and the
defendant stated that he was acting voluntarily. He admitted that he was aware of the various
rights that he would ordinarily have, to wit, the right to counsel, the right to consult with
people, and so forth. After such preliminaries his confession followed. At the end of his
confession he stated that he had been advised of his rights and that he knew that he didn't
have to answer the preceding questions unless he was willing to do so. Defendant's counsel
nevertheless maintain that defendant should have been advised of his constitutional right that
he did not have to make a statement, or if he did, that the statement could be used against him
in open court. In our opinion the district attorney's admonition to the defendant before the
confession was given met all constitutional requirements.
[Headnotes 6, 7]
In Nevada, the rule as to admissibility of confessions is that they are admissible if
voluntarily given. State v. Boudreau, 67 Nev. 36
____________________

2
Officer Fister testified that at the time he apprehended defendant, defendant said that he had reached the end
of his rope. I [Fister] said, Maybe not, if he isn't dead, you wouldn't be up for murder,' and he said, Hell, he is
dead. I shot him in the head twice.' He said. I would have shot it out with you but that gun of yours looked too
big.' I said, That was a pretty wise decision.' Fister then took defendant to a gas station enroute to Carson City
where the attendant related the following: Mr. Fister and the defendant got out of the car. I bought them each a
coke and had one with them. Mr. Fister said, Maybe you didn't kill this fellow.' He said, No, I shot him.'
Boudreau, 67 Nev. 36, 214 P.2d 135. Defendant does not contend on appeal that his
confession was not given voluntarily. There was no duty to warn defendant of the
consequences of his making a statement or that it might be used against him. State v.
Gambetta, 66 Nev. 317, 208 P.2d 1059.
Appellant contends that even assuming that the confession was voluntary it was
improperly admitted into evidence in view of two recent decisions of the United States
Supreme Court: Massiah v. United States, 377 U.S. 201 (1964), and Escobedo v. State of
Illinois, 378 U.S. 478 (1964). These cases are easily distinguishable. Massiah was a federal
case. In reversing the conviction, the Supreme Court held that defendant suffered a denial of
the basic protections of the Sixth Amendment when there was used against him at his trial
evidence of his own incriminating words, which federal agents had deliberately elicited from
him after he had been indicted and in the absence of his counsel. The Court there said: All
that we hold is that the defendant's own incriminating statements, obtained by federal agents
under the circumstances here disclosed, could not constitutionally be used by the prosecution
as evidence against him at his trial.
In Escobedo, the Supreme Court by a five to four decision reversed a state conviction
because the trial court had admitted into evidence defendant's incriminating statements voiced
during defendant's pre-indictment interrogations in the absence of counsel. The officers urged
him to admit the crime; he replied, I am sorry but I would like to have advice from my
lawyer. During the course of further interrogation defendant repeatedly asked to see his
lawyer, and the lawyer, in turn, attempted to contact defendant but neither effort succeeded.
In that case the police in no manner warned him of his constitutional right to remain silent
and he was denied the assistance of counsel. Here again the Supreme Court stated the limits
of its decision. We hold, therefore, that where, as here, the investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a particular suspect, the
suspect has been taken into police custody, the police carry out a process of
interrogations that lends itself to eliciting incriminating statements, the suspect has
requested and been denied an opportunity to consult with his lawyer, and the police have
not effectively warned him of his absolute constitutional right to remain silent, the
accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment
to the Constitution as "made obligatory upon the States by the Fourteenth Amendment,'
Gideon v. Wainwright, 372 U.S., at 342, and that no statement elicited by the police
during the interrogation may be used against him at a criminal trial.
suspect, the suspect has been taken into police custody, the police carry out a process of
interrogations that lends itself to eliciting incriminating statements, the suspect has requested
and been denied an opportunity to consult with his lawyer, and the police have not effectively
warned him of his absolute constitutional right to remain silent, the accused has been denied
the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as made
obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S.,
at 342, and that no statement elicited by the police during the interrogation may be used
against him at a criminal trial. * * * We hold only that when the process shifts from
investigatory to accusatorywhen its focus is on the accused and its purpose is to elicit a
confessionour adversary system begins to operate, and, under the circumstances here, the
accused must be permitted to consult with his lawyer.
In People v. Dorado, 40 Cal.Rptr. 264, 394 P.2d 952, the California Supreme Court had
occasion to consider Massiah and Escobedo. In that case the defendant while a life-term
inmate of San Quentin Prison was accused of the wrongful death of a fellow prisoner. The
prison officers after finding the body of the deceased commenced an immediate investigation
and discovered articles which would tend to connect the defendant with the homicide.
Defendant was interrogated. At no time did the officers inform the defendant of his right to
counsel or of his right to remain silent. Under these circumstances the California Supreme
Court held that the confession, even assuming its voluntariness, was improperly admitted into
evidence in view of Massiah and Escobedo. The facts in that case are also distinguishable
from the case before us which presents no circumstance of any miscarriage of justice.
We might add that in Dorado the decision was based on the premise that the confession or
admissions were involuntary resulting in a denial of due process requiring reversal regardless
of other evidence of guilt. We believe that Dorado has extended the limited holdings of
Massiah and Escobedo.
[Headnotes 8, 9]
4. Defendant objected to the admission in evidence of certain colored photographs of the
deceased which portrayed his bullet wounds. Although it is true that the corpus delicti was
established by the defendant's guilty plea the defendant was not prejudiced by the reception in
evidence of these photographs. State v. Holt, 47 Nev. 233, 219 P. 557; State v. Gambetta,
supra.
[Headnote 10]
In State v. Huff, 14 N.J. 240, 102 A.2d 8, it was held that the fact that the photographs of a
murder victim were in color and hence more revolting and gruesome than they would have
been otherwise was not a ground for their exclusion. We approve this holding. In the case
now before us the colored tones of the photographs do not add to their gruesome character.
The photographs were not taken at the place where the body was found; they were taken
sometime later, apparently after the autopsy and after the blood had been removed therefrom,
except possibly that around the wounds themselves.
5. Furthermore, this was not a trial, but a proceeding before the court after a plea of guilty.
Archibald v. State, 77 Nev. 301, 362 P.2d 721; Rainsberger v. State, 76 Nev. 158, 350 P.2d
995; cf. State v. Blackwell, 65 Nev. 405, 198 P.2d 280, 200 P.2d 698.
[Headnote 11]
6. Defendant claims it was error for the panel to refuse to give the proper weight to the
expert testimony of Dr. Alan K. Done regarding the effects of toluene poisoning upon the
defendant at the time of the act in question.
Defendant in his confession stated that he was a user of toluene (glue sniffing) and that he
was under the influence of the same at the time of the homicide. Dr. Done testified with
respect to the effects of these vapors upon the user. He admitted that there were no experts in
this particular field. There was ample evidence however for the panel to conclude that the
defendant was in full possession of his senses when he shot the victim, in view of the
testimony of two psychiatrists.
full possession of his senses when he shot the victim, in view of the testimony of two
psychiatrists. Also, defendant's recollection of minute details from the time he kidnapped the
Fosters until his apprehension, substantially corroborated by Mrs. Foster, justifies the
conclusion by the panel that the killing was voluntary and without justification.
No errors were committed by the panel and the judgment of the trial court should be and is
hereby affirmed.
The three judges who constituted the court are directed to execute another warrant
pursuant to NRS 176.440.
____________
80 Nev. 447, 447 (1964) Dudrey v. Milner
FRANCES I. DUDREY, Appellant, v. OLIVE MILNER, Executrix of
the Estate of MAYME SMITH, Deceased, Respondent.
No. 4751
October 26, 1964 396 P.2d 30
Suit to determine the proper amount of money to be paid by surviving partner to estate of
deceased partner under partnership agreement giving survivor option to purchase deceased
partner's share of assets. From a judgment for executor in the trial court, surviving partner
appealed. The Supreme Court, McNamee, J., held that where partnership agreement provided
that surviving partner should have opinion to purchase deceased partner's share of assets only
after an audit, interest on amount due commenced to run only from date of judgment and it
was error to calculate interest on amount found due as of date of deceased partner's death.
[Rehearing denied November 12, 1964] Hawkins, Cannon & Hawkins, of Las Vegas, for
Appellant.
Hawkins, Cannon & Hawkins, of Las Vegas, for Appellant.
Where appellate court had remanded cause for purpose of determining (1) the market value of all assets
of partnership less all liabilities as of date of deceased partner's death and (2) the amount of money to be
paid by surviving partner as one-half of net market value of assets after adjustment, trial court's entry of
money judgment against surviving partner in favor of deceased partner's executor was in accordance with
appellate court's directions on remand.
2. Interest.
Where partnership agreement provided that in event surviving partner should exercise option to purchase
deceased partner's share as determined by audit, purchase price should be payable in equal monthly
installments plus interest on unpaid balance at rate of 4 percent per annum, interest on amount due
commenced to run only from date of judgment and it was error to calculate interest on amount found due as
of date of deceased partner's death. NRS 99.040.
3. Partnership.
Where partnership agreement provided that surviving partner should pay for deceased partner's share in
equal monthly installments of $250, payable on first of month until balance was paid in full, plus interest
on unpaid balance, monthly installment of $250 did not include both principal and interest but such
monthly payments were to be applied only to principal.
OPINION
This matter comes before us the second time. In Milner v. Dudrey, 77 Nev. 256, 362 P.2d
439, the judgment of the trial court was affirmed with respect to the right of the surviving
partner (Dudrey) to exercise the option to purchase the interest of the deceased partner,
Mayme Smith, in the property and business known as the DeLuxe Motel. The judgment was
reversed with respect to the amount to be paid by Dudrey for the deceased party's interest, and
the cause remanded for further evidence to determine (a) the market value of all the assets of
the partnership, less all liabilities, as of the date of the death of the deceased partner, and (b)
what amount of money must be paid by Dudrey as one-half of the net market value after
adjustment has been made for the difference in the capital accounts of the partners,
which at the time of the death had not been made equal as provided in the partnership
agreement.
what amount of money must be paid by Dudrey as one-half of the net market value after
adjustment has been made for the difference in the capital accounts of the partners, which at
the time of the death had not been made equal as provided in the partnership agreement.
Upon remittitur of that case the trial court referred the two questions above to a master for
determination.
Paragraph 8 of the partnership agreement provides:
In the event of the death of either of the parties hereto the partnership shall immediately
terminate and the survivor shall have the option to purchase the share of the deceased partner
in the capital and assets of the partnership business as determined from an audit made by the
accountant aforesaid, as of the date of death of the deceased partner, and the purchase price
shall be the amount which said audit shall disclose and the good will of said business shall be
regarded as a partnership asset without value. * * * In the event of such purchase the purchase
price shall be due and payable in equal monthly installments of $250.00 or more, payable on
the 1st day of each month until the balance shall have been paid in full, plus interest on the
unpaid balance at the rate of Four Per Cent (4%) per annum.
The master reported to the court that the market value of the partnership property at the
time of the death of Mayme Smith, less all liabilities, was $191,464.63; that the amount due
Milner from Dudrey was $103,342.71. Appellant does not attack the master's report on this
appeal.
The trial court accepted the master's report and concluded that as of November 27, 1963,
the date of its judgment, Dudrey was indebted to Milner in the sum of $103,342.71, of which
$19,250 was then due on principal and $4,707.78 was then due as interest at 4 percent per
annum on $103,342.71 from the date of Mayme Smith's death; that the total then due on
principal and interest amounted to $23,957.78; that said total of $23,957.78 would bear
interest at the rate of 7 percent per annum from the date of judgment until paid; that in
addition thereto Dudrey owed Milner $74,092.71 (being the balance of the purchase price)
payable in installments on principal of $250.00 per month, together with interest on the
unpaid balance of the purchase price at 4 percent per annum payable monthly with the
installments on the principal until the principal and interest are paid in full.
principal of $250.00 per month, together with interest on the unpaid balance of the purchase
price at 4 percent per annum payable monthly with the installments on the principal until the
principal and interest are paid in full. Judgment was entered accordingly.
1

[Headnote 1]
Dudrey moved to amend the judgment to eliminate the provisions for a money judgment,
as not being supported by the pleadings or the evidence. This motion was denied. Appeal is
from the judgment and the order denying the motion to amend.
Contrary to appellant's contention, we have concluded that the trial court in entering a
money judgment against Dudrey and in favor of Milner acted in accordance with our
directions on remand. Consequently the order denying the motion to amend the judgment is
affirmed.
[Headnote 2]
Appellant maintains moreover that the court erred in allowing interest at the rate of 4
percent per annum on the said sum of $103,342.71 from the date of Mayme Smith's death to
the date of the judgment which amounts to $4,707.78; that it further erred in allowing interest
at the rate of 7 percent per annum on the said sum of $23,957.78, which was the amount the
court found due and owing as of the date of the judgment. In these respects we agree with
appellant's contentions.
NRS 99.040 provides: Interest rate when no express written contract. When there is no
express contract in writing fixing a different rate of interest, interest shall be allowed at the
rate of 7 percent per annum upon all money from the time it becomes due, in the following
cases:
1. Upon contracts, express or implied, other than book accounts.
2. Upon the settlement of book or store accounts from the day on which the balance is
ascertained.
3. Upon judgments rendered by a court in this state.
____________________

1
Appellant makes no complaint regarding the other provisions in the judgment.
4. Upon money received to the use and benefit of another and detained without his
consent.
5. Upon wages or salary, if the same shall be unpaid when due, after demand therefor has
been made.
In Sierra Pacific Power Co. v. Nye, 80 Nev. 88, 389 P.2d 387, we approved interest for a
four-year period prior to the filing of the complaint because the amount was definitely
ascertainable by mere mathematical calculation. Such is not the situation here. Paragraph 8 of
the partnership agreement, as quoted above, provides for the determination of the purchase
price of the deceased partner's share only after an audit. Until such audit was accomplished
the amount to be paid for the deceased's share of the partnership was unknown. Therefore, the
amount due the deceased's estate upon the exercise of the option by Dudrey was not
definitely ascertainable by a mere mathematical calculation, at the time of the deceased
partner's death, as in Sierra Pacific Power Co. v. Nye. Nor was the amount due at the time of
the exercise of the option known to both parties as in Dollar Investment Corp. v. Modern
Market, 77 Nev. 393, 365 P.2d 311, 1117. The amount due Milner was unknown until the
rendition of judgment and did not become due until then. It follows that the rule in
Agricultural Insurance Co. v. Biltz, 57 Nev. 370, 64 P.2d 1042, is applicable, and therefore
interest on the amount due and owing at the time of the judgment commenced to run only
from the date of the judgment.
[Headnote 3]
With respect to the amount of the principal to become due after judgment, to wit, the sum
of $74,092.71, appellant contends that this is payable only at the rate of $250.00 per month,
which amount would include both principal and interest. We do not accept this contention.
We construe said Paragraph 8 (as did the lower court) to require the $250.00 monthly
payments to be applied only on principal. In addition thereto monthly payments of accrued
interest are required under the partnership agreement.
The judgment is modified by reducing the balance owed by appellant to respondent to the
sum of $74,092.71 {being the balance of the purchase price) payable in installments on
principal of $250 per month, together with interest on the unpaid balance of the purchase
price at 4 percent per annum from the date of the judgment, payable monthly with the
installments on the principal until the principal and interest are paid in full.
(being the balance of the purchase price) payable in installments on principal of $250 per
month, together with interest on the unpaid balance of the purchase price at 4 percent per
annum from the date of the judgment, payable monthly with the installments on the principal
until the principal and interest are paid in full. As so modified, the judgment is affirmed.
____________
80 Nev. 452, 452 (1964) Gregerson v. Collins
W. E. GREGERSON, Petitioner, v. THE HONORABLE JON R. COLLINS, Acting Judge of
the Eighth Judicial District Court of the State of Nevada, Respondent.
No. 4825
October 27, 1964 396 P.2d 27
Original petition for certiorari or in the alternative mandamus.
The Supreme Court held that failure of complaint to contain acknowledgment was a
nonjurisdictional defect and that motion for leave to file an amended complaint was properly
granted.
Petition dismissed.
Stanley W. Pierce, of Las Vegas, for Petitioner.
Ruymann, Hilbrecht & Jones, of Las Vegas, for Respondent.
1. Pleading.
Absence of an acknowledgment is a non-jurisdictional defect in pleading and trial court cannot disregard
such a defective pleading without affording an opportunity to pleader to supply in acknowledgment.
NRCP 11.
2. Pleading.
Order granting plaintiff's motion to amend his unacknowledged complaint was proper. NRCP 11.
3. Pleading.
District court rule providing that when a party appears in proper person and fails to acknowledge his
pleading the court shall not recognize or give any effect to the pleading is inapplicable
where a party moves to amend his unacknowledged pleading.
shall not recognize or give any effect to the pleading is inapplicable where a party moves to amend his
unacknowledged pleading. NRCP 11; DCR 30.
OPINION
Per Curiam:
This is an original petition for a writ of review or in the alternative mandamus.
One Campregher filed a complaint in proper person against Gregerson in respondent court.
It was verified but not acknowledged as required by NRCP 11. Gregerson moved for
summary judgment because of this defect. Campregher then through counsel moved to amend
his complaint.
The motion for summary judgment was denied. The motion for leave to file an amended
complaint was granted.
It is petitioner's contention that when the original complaint was not acknowledged in
accordance with Rule 11 the lower court should have stricken it as sham and false, and that
the court had no jurisdiction to grant leave to file an amended complaint.
Rule 11 is not mandatory. It states that where the pleading is not signed in accordance with
the rule it may be stricken.
[Headnotes 1, 2]
In Cheek v. Bell, 80 Nev. 244, 391 P.2d 735, we held that the absence of an
acknowledgment is a mere defect in the pleading which is not jurisdictional. We stated that
the trial court could not disregard such a defective pleading without affording an opportunity
to the pleader to supply an acknowledgment. In other words, an answer defective with
respect to the acknowledgment and address of the pleader should not be treated as a nullity
unless the pleader is given an opportunity to correct the defect and fails to do so. Here,
Campregher asked for an opportunity to correct the defect by his motion to amend the
complaint, and the court properly granted this motion.
[Headnote 3]
D.C.R. 30 provides that when a party appears in proper person and fails to acknowledge
his pleading the court shall not recognize or give any effect to the pleading. No effect was
given to the original complaint. Rule 30 has no application to the situations presented by
either this case or Cheek v. Bell.
Petition dismissed.
____________
80 Nev. 454, 454 (1964) Jackson v. Primadonna Hotel, Inc.
FRANK J. JACKSON, JR., Appellant, v. THE PRIMADONNA
HOTEL, INC., a Nevada Corporation, Respondent.
No. 4759
October 28, 1964 396 P.2d 28
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Broker's suit for commission for finding lender who initially orally agreed to make loan
commitment on borrower's terms in his contract with broker for 5 years payable in monthly
installments, but who submitted written commitment for 4 years payable in annual
installments which was unacceptable to borrower. The trial court gave judgment to borrower
and broker appealed. The Supreme Court, Thompson, J., held a broker may not recover
compensation by producing lender who orally agrees to comply with terms of offer but
repudiates terms in written commitment.
Judgment affirmed.
Goldwater, Taber and Hill, and Wayne L. Mortimer, of Reno, for Appellant.
Bible, McDonald & Carano, of Reno, for Respondent.
1. Brokers.
Where broker's contract with borrower was to obtain loan commitment for 5 years payable in monthly
installments and broker produced lender who initially orally agreed to terms but who later offered
written commitment, which borrower rejected, for 4 years payable annually, broker
could not recover compensation.
who later offered written commitment, which borrower rejected, for 4 years payable annually, broker could
not recover compensation.
2. Brokers.
A broker may not recover compensation by producing lender who orally agrees to comply with terms of
offer and then repudiates commitment and fails to make proposed loan.
3. Brokers.
Borrower is not liable to pay broker's commission when commitment secured does not meet terms
designated by borrower.
OPINION
Jackson commenced suit against Primadonna Hotel, Inc. to recover a commission of
$21,000 claimed to be due for procuring from one Virgil Smith an oral commitment for a
loan of $400,000 to Primadonna. The loan was not made. Jackson lost in the trial court, and
appeals. We affirm.
By a letter dated May 2, 1961, Primm, the agent of Primadonna Hotel, Inc., gave Jackson
the exclusive right for a period of 30 days to obtain a commitment for a loan for Primadonna
Hotel, Inc., a Nevada corporation, in the sum of $400,000. The loan was to be for a period of
5 years, repayable in monthly installments, with interest at 10 percent per annum. Primadonna
was to have the right to prepay the loan with a reasonable prepayment penalty. The loan was
to be secured by a first deed of trust on the 241 North Virginia Street, Reno, Nevada,
property, by an assignment of the lease on contiguous property known as 237-239 North
Virginia Street, and by an assignment of the leasehold interest and improvements
immediately to the west where a restaurant was being constructed. After receiving his letter of
authority, Jackson attempted to secure a loan commitment of eastern trust fund money, but
failed. On an airplane trip from San Francisco to Reno, during a casual conversation with
Norman Biltz, Jackson mentioned his endeavor to obtain a loan for Primadonna. Biltz
indicated that he or his associates might be interested in making the loan.
be interested in making the loan. Later, upon the request of Biltz, Jackson furnished Biltz a
copy of the May 2, 1961, letter. After receiving it, Biltz and his associates Smith, Wedge and
Dant loosely agreed among themselves to participate in making the loan desired by
Primadonna, and Smith was authorized so to advise Primm. On or about May 29, 1961,
Smith and Wedge went to Primm's home where Smith advised Primm that he, Smith, would
make the loan on the terms outlined in the letter of May 2, 1961. A 5 percent prepayment
penalty was discussed and considered acceptable. Smith and Primm shook hands, and
departed with the understanding that their attorneys would prepare the documents required to
close the deal. Thereafter Wedge, the attorney for Smith, prepared final papers which were
delivered to the attorneys for Primm. The documents submitted for signature contained
provisions which were substantially different from those contained in the letter of May 2,
1961. We mention only two of them. The proposed final papers required repayment of the
loan in annual rather than monthly installments, and contemplated full repayment in four
years instead of five.
1
The proposed final papers were never accepted by Primadonna.
It was Jackson's contention at trial, and in this court, that his right to a commission
matured the moment Smith told Primm that a loan would be made according to the
requirements of the letter of May 2, 1961. At that instant he had procured a commitment for a
loan and, on the authority of Simplot Co. v. Rupe & Son, 78 Nev. 111, 369 P.2d 445, had
earned his commission. On the other hand, Primm relies upon our opinion in Widett v. Bond
Estate, Inc., 79 Nev. 284, 382 P.2d 212. He contends that his meeting with Smith on May 29,
1961, was merely the initial step in a series of negotiations (we have not detailed the various
meetings) which ended when the lender submitted final papers that contained terms
substantially different than those outlined in the letter of May 2, 1961.
____________________

1
Though there was some evidence to indicate that this variance may have been a mistake in drafting, the trial
court was free to accept the documents at face value, and apparently did so.
outlined in the letter of May 2, 1961. According to Primm, the only commitment made by
Smith was evidenced by the final papers which Smith's attorney prepared. As those papers did
not meet the terms of the May 2 letter, Widett v. Bond Estate, Inc., supra, precludes a
commission being due. We turn to resolve these contentions.
[Headnotes 1, 2]
In Simplot, supra, the participating lenders were ready, willing and able to consummate a
final loan agreement according to their commitments to do so, but the borrower refused to
consummate. That case holds that a borrower may not avoid liability for a broker's
commission by unilaterally refusing to accept the loan which was committed on terms which
he (the borrower) had requested. The present case is different. Here the lender Smith, though
orally committing himself to make the loan on terms requested by the borrower, later
repudiated that oral commitment by demanding different terms.
2
A broker may not recover
compensation by producing a lender who orally agrees to comply with the terms of the offer
and then repudiates his commitment and fails to complete the proposed loan. Higgins v.
Ginsburg & Goodman, 278 Mass. 497, 180 N.E. 233; Annot., 12 A.L.R.2d 1410. In Simplot
the borrower frustrated consummation of the loan; here, the lender did. This difference
governs the broker's right to compensation.
[Headnote 3]
Finally, if the proposed closing papers submitted by the lender Smith to the borrower
Primadonna Hotel, Inc., may be treated as a commitment to make a loan on the terms
therein stated (a point on which we express no opinion), then Widett v. Bond Estate, Inc.,
supra, precludes liability for a commission. Widett simply holds that the borrower is not
liable to pay a broker's commission when the commitment secured does not meet the
terms designated by the borrower.
____________________

2
Though it is true that some of the evidence indicates that the borrower Primadonna refused to consummate
the loan, there is also substantial evidence to support a finding that the lender Smith repudiated his oral
commitment to make the loan. For the purposes of this opinion we accept the evidence which supports the
judgment.
simply holds that the borrower is not liable to pay a broker's commission when the
commitment secured does not meet the terms designated by the borrower. Here all parties
concede that the proposed final papers did not substantially comply with the May 2, 1961,
letter setting forth the terms on which the borrower was willing to deal. Accordingly we
perceive no legal basis on which Jackson may recover in this case.
Affirmed.
Badt, C. J., concurring:
I concur, but should prefer to base our affirmance upon the ground that the minds of the
parties never met, and would not meet until their agreement had been reduced to writing.
Widett v. Bond Estate, Inc., 79 Nev. 284, 382 P.2d 212, and cases therein cited. This was
never accomplished.
____________
80 Nev. 458, 458 (1964) Valley Power Co. v. Toiyabe Supply Co.
VALLEY POWER COMPANY and TOWNSITE DEVELOPMENT COMPANY,
Appellants, v. TOIYABE SUPPLY CO. and NEVADA BANK OF COMMERCE,
Respondents.
No. 4763
November 4, 1964 396 P.2d 137
Appeal from an order of the Second Judicial District Court, Washoe County; Thomas O.
Craven, Judge, dismissing with prejudice a complaint in intervention.
Subrogation case. Assureds appealed from an order of the lower court dismissing with
prejudice their complaint in intervention. The Supreme Court, Thompson, J., held that
insurer, having paid assureds in full for their claimed losses, was subrogated to their rights
which they may have had against defendants before such payments were made, and was the
sole party in interest and the only one who could assert a claim against those thought to be
ultimately liable.
Order of dismissal affirmed.
Vargas, Dillon, Bartlett & Dixon and Alex. A. Garroway, of Reno, for Appellants.
Gray and Horton, and Earl M. Hill, of Reno, for Respondents.
Insurance; Parties.
Insurer, having paid assureds in full for their claimed losses, was subrogated to their rights which they
may have had against the defendants before such payments were made, and was sole party in interest and
only one who could assert a claim against those thought to be ultimately liable, and assureds could not
intervene, total subrogation having eliminated their interest. NRCP 17(a), 24; NRS 12.130.
OPINION
In the lower court Valley Power Company and Townsite Development Company were
granted leave to intervene in a pending action between Federal Insurance Company, plaintiff,
versus Toiyabe Supply Company and Nevada Bank of Commerce, defendants. Subsequently,
upon defendants' motion, the intervenors' complaint was dismissed with prejudice for the
reason that the intervenors were not real parties in interest. The lower court found, upon the
record then before it, that the sole real party having an interest in the subject matter of the
case was the plaintiff Federal Insurance Company.
1
The intervenors appeal from the order of
dismissal.
The Federal Insurance Company issued its comprehensive bond and policy to Basic,
Incorporated, and any subsidiary corporation or corporations, the assured, binding itself to
pay the assured all losses {up to $100,000) sustained through any fraudulent or dishonest
acts {including larceny, theft, embezzlement, forgery, misappropriation, wrongful
abstraction or willful misapplication) committed by employees of the assured.
____________________

1
NRCP, Rule 17(a) reads, Real Party in Interest. Every action shall be prosecuted in the name of the real
party in interest; but an executor, administrator, guardian, trustee of an express trust, a party with whom or in
whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his
own name without joining with him the party for whose benefit the action is brought; and when a statute so
provides, an action for the use or benefit of another shall be brought in the name of the State.
subsidiary corporation or corporations, the assured, binding itself to pay the assured all losses
(up to $100,000) sustained through any fraudulent or dishonest acts (including larceny, theft,
embezzlement, forgery, misappropriation, wrongful abstraction or willful misapplication)
committed by employees of the assured. Valley Power Company and Townsite Development
Company, intervenors-appellants, are subsidiary corporations of Basic, Incorporated and,
therefore, assureds under the policy. An employee on the payroll of Basic, Incorporated, but
whose duties were primarily connected with the subsidiary corporations, misappropriated
funds of the subsidiary corporations. For the purposes of this opinion it is not necessary to
relate how the defalcations were accomplished. The resulting losses claimed to have been
incurred by Valley Power Company ($26,703.13), and Townsite Development Company
($15,017.19), were paid in full by Federal Insurance Company as required by the
comprehensive bond and policy which it had issued. Federal Insurance Company commenced
an action against Toiyabe Supply Company and Nevada Bank of Commerce (the predicate for
which we need not now state) to recover the sums paid under its policy to the assureds and
seeking, in addition, exemplary damages.
2

Having paid the assureds in full for their claimed losses, the insurer was subrogated, by
operation of law, to the rights, if any, which the assureds may have had against the defendants
before such payments were made. Talley v. Fawcett, 144 Colo. 130, 355 P.2d 302; Gardner v.
Walker, 373 P.2d 598 (Wyo. 1962); American Fidelity & Casualty Co. v. All American Bus
Lines, 10 Cir., 179 F.2d 7; Link Aviation, Inc. v. Downs, C.A., D.C., 325 F.2d 613;
Milwaukee Insurance Co. v. McLean Trucking Co.,
____________________

2
The complaint in intervention adopted by reference some of the allegations of the complaint of Federal
Insurance Company. The adopted allegations show without question that the intervenors seek to recover the
same losses for which they had already been paid by Federal Insurance Company.
Trucking Co., 256 N.C. 721, 125 S.E.2d 25.
3
In such a case the insurer, Federal Insurance
Company, is the sole party in interest, and the only one who may assert a claim against those
thought to be ultimately liable. None of the requisites designated by statute, NRS 12.130, or
rule, NRCP 24, to support intervention, are present when total subrogation has eliminated the
interest of the assured.
Affirmed.
____________________

3
See also United States v. Aetna Casualty & Surety Co., 338 U.S. 366, S.Ct. 207, 94 L.Ed. 171, 70, 12
A.L.R.2d 444, where the United States Supreme Court discussed the real party in interest rule as it relates to
partial subrogation.
____________
80 Nev. 461, 461 (1964) State v. Boyce
THE STATE OF NEVADA, Appellant and Cross-Respondent, v. CHARLES
ARTHUR BOYCE, Respondent, and JAMES LAVERN POWERS, Respondent
and Cross-Appellant.
No. 4702
November 5, 1964 396 P.2d 135
Prosecution for robbery. The lower court quashed the indictment, because deputy sheriff
barred two persons from courtroom, on motion based on ground that grand jury had not been
empaneled in open court, and state appealed. One of the defendants cross-appealed from an
order overruling his written challenge to jury panel. The Supreme Court, McNamee, J., held
actions of deputy sheriff were insufficient basis for quashing indictment and that the
overruling of challenge to jury panel was not appealable as a final order.
80 Nev. 461, 462 (1964) State v. Boyce
Order quashing indictment reversed. Cross-appeal dismissed.
Harvey Dickerson, Attorney General, and Edward G. Marshall, District Attorney, Clark
County, for Appellant and Cross-Respondent.
Harry E. Claiborne and John Manzonie, of Las Vegas, for Respondent Boyce.
John Mendoza and George Foley, of Las Vegas, for Respondent and Cross-Appellant
Powers.
1. Indictment and Information.
That deputy sheriff barred two persons from courtroom where grand jury was being impaneled did not
justify quashing of indictment on ground that grand jury had not been impaneled in open court. NRS
1.090, 174.160, subd. 1.
2. Criminal Law.
Orders overruling written challenges to grand jury were interlocutory and not appealable. NRS
172.060, 177.060.
OPINION
In the court below defendants Boyce and Powers were charged by a grand jury indictment
with the crime of robbery. Through separate attorneys they filed a written challenge to the
grand jury panel upon the ground that its impanelment was not made in open court and upon
the further ground that the requisite number of ballots was not drawn from the jury box of the
county as prescribed by law.
NRS 172.060 provides as follows: A challenge to the panel may be interposed for one or
more of the following causes only:
1. That the requisite number of ballots was not drawn from the jury box of the county as
prescribed by law.
2. That the notice of the drawing of the grand jury was not given as prescribed by law.
80 Nev. 461, 463 (1964) State v. Boyce
3. That the drawing was not had in the presence of the officer or officers designated by
law.
[Headnote 1]
The lower court denied these challenges. Thereupon, the defendants moved to quash the
indictment upon the ground that the grand jury was improperly impaneled because the
impanelment was not made in open court.
The lower court granted this motion and ordered the indictment quashed and defendants
released from custody. The State has appealed from the order granting the motion of
defendants Powers and Boyce to quash the indictment. Defendant Powers has appealed from
the order denying his challenge to the grand jury panel upon the ground that during the
impanelment of the grand jury the ballots were not drawn from the jury box of the county as
prescribed by law.
The sole question presented by the State's appeal is whether under the circumstances of
this case the lower court properly quashed the indictment.
The only statutory grounds for setting aside an indictment are set forth in NRS 174.160
which are as follows:
(a) Where it is not found endorsed and presented as prescribed in this Title.
(b) When the names of the witnesses examined before the grand jury, or whose
depositions may have been read before them, are not inserted at the foot of the indictment nor
endorsed thereon.
(c) When a person is permitted to be present during the session of the grand jury, when
the charge embraced in the indictment is under consideration, except as provided in NRS
172.320.
(d) When the defendant has not been held to answer before the finding of the indictment,
on any ground which would have been good ground for challenge, either to the panel or to
any individual grand juror.
The court quashed the indictment not upon any of these grounds, but upon the ground that
the impanelment of the grand jury was not made in open court in violation of NRS 1.090.
80 Nev. 461, 464 (1964) State v. Boyce
NRS 1.090 provides in part as follows: The setting of every court of justice shall be
public except as otherwise prescribed by law.
Upon the hearing of the motion to quash the indictment evidence was presented to show
that during the impanelment of the grand jury a deputy sheriff prevented at least two persons
from entering the courtroom. The courtroom evidently was crowded with prospective grand
jurors, members of the press, and ordinary spectators. Whether the deputy sheriff was acting
upon instructions by the bailiff not to admit more persons into the courtroom was disputed.
Although the lower court during the impanelment of a grand jury is sitting as a court of
justice within the meaning of NRS 1.090, we have concluded that the said actions of the
deputy sheriff are insufficient to authorize a court to quash an indictment brought by a grand
jury impaneled under the circumstances of this case.
In Fitts v. Superior Court, 4 Cal.2d 514, 51 P.2d 66, the California Supreme Court had
occasion to consider an indictment by a grand jury which had been impaneled in closed court.
It stated:
Mere irregularities, as distinguished from jurisdictional defects, occurring in the
formation of a grand jury, will not justify a court declaring an indictment a nullity. * * *
Disregarding, for the present, all conflicts in the evidence and conceding petitioners' many
assaults upon the indictments, it cannot be said that the grand jury that returned the
indictments against petitioners had no semblance of authority, or acted without color of
lawful right. In other words, accepting petitioners' contentions at their face value, it must be
held, under the authorities last above cited, that the grand jury was at least a de facto grand
jury. That the proceedings and acts of a de facto grand jury are valid and entitled to full credit
is settled by the cited cases. Quoting briefly from In re Gannon, supra [69 Cal. 541, 11 P.
240], we find it there stated that it is therefore sufficient, to maintain the authority of a grand
jury, that it has acted under color of lawful authority. An indictment found by a de facto grand
jury is as regular as one found by a de jure grand jury.' [Headnote 2]
[Headnote 2]
80 Nev. 461, 465 (1964) State v. Boyce
[Headnote 2]
With respect to the cross-appeal of defendant Powers NRS 177.060 provides in part:
The party aggrieved in a criminal action, whether that party be the state or the defendant,
may appeal as follows:
* * * * *
2. To the supreme court from:
(a) A final judgment of the district court in all criminal cases.
(b) An order of the district court allowing a demurrer or granting or refusing a new trial.
The order disallowing the challenges of the defendants to the grand jury panel was an
interlocutory order. It did not terminate the proceedings in the trial court. A final judgment
terminating the proceedings resulted only from the subsequent action of the court in quashing
the indictment and ordering defendants released from custody. This court therefore has no
jurisdiction to entertain the cross-appeal.
The order quashing the indictment is reversed. The cross-appeal is dismissed.
____________
80 Nev. 465, 465 (1964) Nevada Transit Co. v. Harris Bros. Lumber Co.
NEVADA TRANSIT COMPANY, a Nevada Corporation, Appellant, v. HARRIS
BROTHERS LUMBER CO., INC., a California Corporation, Respondent.
No. 4765
November 5, 1964 396 P.2d 133
Appeal from the First Judicial District Court, Churchill County; Richard L. Waters, Jr.,
Judge.
Defendant filed motion for change of venue. The lower court denied the motion, and
defendant appealed. The Supreme Court, McNamee, J., held that corporate defendant waived
right to have trial held in county of its residence by failing to demand in writing that venue
be changed.
residence by failing to demand in writing that venue be changed.
Affirmed.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, and Richard O. Kwapil, Jr., of
Reno, for Appellant.
Diehl & Recanzone, of Fallon, for Respondent.
1. Venue.
Corporate defendant waived right to have trial held in county of its residence by failing to demand in
writing that venue be changed. NRS 13.040, 13.050, subd. 1.
2. Venue.
A written demand for change of venue must precede any motion for change of venue. NRS 13.050,
subd. 1.
3. Venue.
A written motion for change in venue does not satisfy statutory requirement that there must be a demand
in writing that trial be had in the proper county. NRS 13.050.
4. Venue.
A motion for change of place of trial for convenience of witnesses and to promote ends of justice is
addressed to discretion of court. NRS 13.050.
5. Venue.
Affidavit of corporate defendant's general manager was insufficient evidence upon which court could
exercise discretion to grant change of place of trial for convenience of witnesses and to promote ends of
justice, where affidavit consisted chiefly of legal conclusions. NRS 13.050.
OPINION
This is an action to recover damages for the negligent repair of a motor vehicle. Before the
time expired within which to answer the complaint the defendant filed a motion for change of
venue from Churchill County to the county of the defendant corporation's residence, to wit,
Washoe County.
There is no dispute regarding the fact that Washoe County, being the county of the
residence of the defendant, is the proper county within which the action should be tried under
NRS 13.040.
NRS 13.050 provides in part:
1. If the county designated for that purpose in the complaint be not the proper county, the
action may, notwithstanding, be tried therein, unless the defendant before the time for
answering expires demand in writing that the trial be had in the proper county, and the place
of trial be thereupon changed by consent of the parties, or by order of the court, as provided in
this section.
2. The court may, on motion, change the place of trial in the following cases:
(a) When the county designated in the complaint is not the proper county.
(b) When there is reason to believe that an impartial trial cannot be had therein.
(c) When the convenience of the witnesses and the ends of justice would be promoted by
the change.
Without filing a demand as provided by subsection 1 of NRS 13.050, defendant filed a
motion for change of venue upon the ground that the county designated in the complaint is
not the proper county. Its motion for change of venue was based also upon the ground that the
convenience of witnesses required the trial to be in Washoe County.
The only evidence in support of the motion was the affidavit of the president and general
manager of defendant company which states that the only office of Nevada Transit Company
is located in Washoe County, that its business is conducted in and from that office, that all of
its activities are conducted in Washoe County, that defendant's witnesses reside in Washoe
County, and that the convenience of witnesses would be promoted, and he is informed and
believes that the interest of justice would be promoted by maintaining the suit in Washoe
County, Nevada, rather than in Churchill County, Nevada.
[Headnotes 1, 2]
The lower court held that unless a demand in writing was made in accordance with
subsection 1 of NRS 13.050 the defendant waived its right to have the case tried in the proper
county, to wit, Washoe County, and entered its order denying the motion for change of
venue.
entered its order denying the motion for change of venue. Appeal is from this order of denial.
It has been settled law in this state as well as the State of California, from which state our
venue statutes were adopted, that a written demand for change of venue must precede any
motion for change of venue. Connolly v. Salsberry, 43 Nev. 182, 183 P. 391; Elam v. Griffin,
19 Nev. 442, 14 P. 582; Hanna v. DeKoch, 52 Cal.App. 389, 198 P. 1006. Unless a defendant
complies with subsection 1 of NRS 13.050 by making a demand in writing that the trial be
held in the proper county he waives his right to have the trial held in the proper county. A
motion for change of venue is insufficient without a preceding proper demand.
In Connolly v. Salsberry, supra, we said: It is obvious that the legislature intended to
require a written demand as a prerequisite to a motion for a change of venue, upon the ground
that the action is not commenced in the proper county. In that case there was no demand for
change of venue and the motion for change was filed after the time for answering had
expired. Appellant contends that for this reason the present case is distinguishable. Appellant
would distinguish Elam v. Griffin, supra, upon the ground that it does not appear therefrom
whether the motion for change was a written or oral motion, and if oral there would have
been no demand in writing.
[Headnote 3]
Appellant further argues that its motion for a change of venue having been in writing is
sufficient to satisfy the demand in writing specified in subsection 1 of NRS 13.050. This
same argument was made in Hanna v. DeKoch, supra. In that case a motion for a change of
venue was denied upon the ground that appellant had failed to demand in writing that the trial
of the cause be had in the proper county. The appellate court stated:
The appellant concedes that she presented no demand' in terms, but she contends that
demand was substantially made in other papers filed in the proceeding. She refers to her
petition for change and to a certain notice that the matter would be heard at a stated time.
time. We discover nothing in these papers to differentiate them from others of their kind, and
to determine that their contents obviated the necessity for a demand would be to hold that no
demand is necessary in any proceeding for change. A petition, or motion, in such a
proceeding will always acquaint the other party with the fact that a change is desired, but that
is not sufficient. The statute specifically requires that, in addition to the moving papers, a
demand be made. * * *, and we cannot legislate the provision out of existence. Accord, State
v. District Court, 72 Mont. 56, 231 P. 395.
[Headnotes 4, 5]
The right to have the case tried in Washoe County upon the ground that the convenience of
witnesses and the ends of justice would be promoted by the change is addressed to the
discretion of the court. The only evidence in support of this ground for a change of venue is
the said affidavit of the general manager of Nevada Transit Company. Inasmuch as the
affidavit consisting chiefly of legal conclusions is insufficient evidence upon which a court
could exercise discretion, no abuse of discretion can be asserted by the appellant.
The order appealed from is affirmed.
____________
80 Nev. 469, 469 (1964) Commission on Equal Rights v. Smith
NEVADA COMMISSION ON EQUAL RIGHTS OF CITIZENS, Appellant and
Cross-Respondent, v. LINDSAY SMITH, Respondent and Cross-Appellant.
No. 4766
November 12, 1964 396 P.2d 677
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Suit against Commission on Equal Rights of Citizens for judicial declaration that
Commission was not constitutionally created, nor its subpoena power constitutionally
conferred. The lower court entered judgment for plaintiff and Commission appealed. The
Supreme Court, Thompson, J., held that power to legislate has not been delegated by
statute creating Commission, subpoena power given Commission does not offend due
process, act does not violate separation of powers concept and act is not unconstitutional.
plaintiff and Commission appealed. The Supreme Court, Thompson, J., held that power to
legislate has not been delegated by statute creating Commission, subpoena power given
Commission does not offend due process, act does not violate separation of powers concept
and act is not unconstitutional.
Judgment reversed in part, and affirmed in part.
Harvey Dickerson, Attorney General, and Daniel R. Walsh, Deputy Attorney General, of
Carson City, for Appellant and Cross-Respondent.
Streeter, Sala, Richards & McAuliffe, of Reno, for Respondent and Cross-Appellant.
William P. Horgan and Leslie B. Gray, of Reno, for National Council of the Churches of
Christ, in the U.S.A., as Amicus Curiae.
1. Civil Rights.
Functions of Commission on Equal Rights of Citizens are to be accomplished primarily through
investigation and fact finding; Commission does not have power to legislate, make rules, adjudicate,
accuse, issue orders, punish or impose sanctions; and its underlying purpose is to develop information
which may be useful to executive in recommending measures to legislature and which may be useful to
legislature in formulating future legislation. NRS 233.010-233.080, 233.010, subd. 1.
2. Civil Rights; Constitutional Law.
Power to legislate has not been delegated by statute creating Commission on Equal Rights of Citizens,
subpoena power given Commission does not offend due process, act does not violate separation of powers
concept and act is not unconstitutional. NRS 233.010-233.080, 233.010, subd. 1.
3. Administrative Law and Procedure; Constitutional Law.
Constitutional provisions bearing upon separation and delegation of powers are not violated by act
authorizing administrative agency to obtain information upon which future legislation may be formulated,
nor are they violated when legislature confers upon executive power to appoint administrative agency and
invests that agency with power of subpoena. Const. art. 3, 1.
4. Civil Rights.
Power of Commission on Equal Rights of Citizens to subpoena witnesses and require production of any
evidence relative to hearing conducted by Commission is limited by provision that Commission shall
investigate alleged discrimination; Commission is not authorized to conduct hearings and fishing
expedition into other matters. NRS 233.070, subds. 1, 3.
5. Administrative Law and Procedure.
Normally power of administrative agency to issue subpoenas and power to enforce them through citation
for contempt are treated as separate and functionally unrelated problems.
6. Contempt.
Power of citation for contempt is best lodged in court of competent jurisdiction where judicial safeguards
will attend the hearing.
7. Witnesses.
Disobedience of subpoena duly served is deemed contempt and a court proceeding on affidavit, citing
unwilling witness to show cause why he should not be punished for contempt, is proper method of
enforcement. NRS 22.010, subd. 4.
8. Civil Rights.
Commission on Equal Rights of Citizens may lawfully proceed to enforce subpoenas issued by it by a
court proceeding on affidavit citing unwilling witness to show cause why he should not be punished for
contempt. NRS 22.010, subd. 4, 233.010 233.080, 233.010, subd. 1.
OPINION
This case involves the constitutionality of the statute creating the Nevada Commission on
Equal Rights of Citizens, the legality of that commission's power to subpoena witnesses, and
the enforcement procedure available to the commission should a subpoenaed witness fail to
appear and testify.
The controversy arose because of the commission's desire to question an officer of a
corporation about its racial policies and practices. The relevant facts are few. El Capitan
Lodge and Casino, a corporation, operates a place of public accommodation at Hawthorne,
Nevada. The commission issued a subpoena and caused it to be served upon Lindsay Smith,
an officer and stockholder of El Capitan, commanding Smith to appear and testify before the
commission at its meeting scheduled for February 27, 1964, at the courthouse in Reno,
Nevada. Smith did not appear. Instead he filed suit against the commission, seeking a judicial
declaration that the commission was not constitutionally created, nor its subpoena power
constitutionally conferred. In addition he sought a permanent injunction against any effort by
the commission to compel his testimony.
commission to compel his testimony. He was successful in each respect below, and the
commission appeals.
1

The Nevada Commission on Equal Rights of Citizens was created by legislative enactment
in 1961. NRS 233.010-233.080. The public policy sought to be advanced is declared in the
following language: It is hereby declared to be the public policy of the State of Nevada to
protect the welfare, prosperity, health and peace of all the people of the state, and to foster the
right of all persons reasonably to seek, obtain and hold employment and housing
accommodations, and reasonably to seek and be granted services in places of public
accommodation without discrimination, distinction or restriction because of race, religious
creed, color, national origin or ancestry. (NRS 233.010 (1).)
The members of the commission are appointed by the governor and serve at his pleasure
without compensation. The functions of the commission are dual. First, it is to effectuate the
declared public policy to afford information to the people concerning actual and alleged
practices of discrimination and acts of prejudice which may provide the basis for
formulating statutory remedies of equal protection and opportunity for all citizens in this
state. Accordingly the commission is directed to investigate complaints and to initiate its
own investigations of tensions, practices of discrimination and acts of prejudice of a racial,
religious or ethnic nature. To that end the commission is invested with authority to hold
private or public hearings and to subpoena witnesses. It must report its findings to the
governor and to the Legislative Counsel Bureau, and shall make recommendations. The
second function of the commission is to foster mutual understanding and respect among all
racial, religious and ethnic groups in the manner described in NRS 233.060 (1), (2), (3), (5),
(6), (7).
____________________

1
Smith also claimed damages for a malicious abuse of process. The defendant's motion to dismiss this
claim was granted, and Smith has filed a cross-appeal from the dismissal order. In view of our disposition of the
commission's appeal, it is apparent that there can be no legal basis to support Smith's claim for damages.
Whitehead v. Southern Discount Company, 109 Ga.App. 126, 135 S.E.2d 496.
[Headnote 1]
It is apparent that the dual functions of the commission are to be accomplished primarily
through investigation and fact finding. It is not given the power to legislate or make rules, nor
may it adjudicate. It does not accuse, issue orders, punish or impose sanctions. Cf. State v.
Medical Examiners, 68 Nev. 455, 235 P.2d 327; Nevada Tax Commission v. Hicks, 73 Nev.
115, 310 P.2d 852. Rather, the underlying purpose is to develop information which may be
useful to the executive in the performance of his constitutional duty to recommend to the
legislature such measures as he shall deem expedient (Nev. Const., art. 5, 10), and also
useful to the legislature in formulating future legislation.
[Headnotes 2, 3]
The act is not constitutionally infirm. The power to legislate has not been delegated.
Ginocchio v. Shaughnessy, 47 Nev. 129, 217 P. 581; Annot., 79 L.Ed. 474. The subpoena
power given the investigatory commission does not offend due process. Hannah v. Larche,
363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307; In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1
L.Ed.2d 376. Nor (contrary to the lower court's view) does the act violate the separation of
powers concept. Nev. Const., art. 3, 1.
2
It is established law that constitutional provisions,
bearing upon the separation and delegation of powers, are not violated by authorizing an
administrative agency to obtain information upon which future legislation may be formulated.
1 Davis, Administrative Law Treatise, 66; Annot., 27 A.L.R.2d 1208. Nor are those
provisions violated when the legislature confers upon the executive the power to appoint the
administrative agency and invests that agency with the power of subpoena. In re Di Brizzi,
303 N.Y. 206, 101 N.E.2d 464. Indeed, many administrative agencies in Nevada are
appointed by the governor and enjoy subpoena power.
____________________

2
Nev. Const., art. 3, 1 reads: The powers of the Government of the State of Nevada shall be divided into
three separate departments,the Legislative,the Executive and the Judicial; and no persons charged with the
exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to
either of the others, except in the cases herein expressly directed or permitted.
appointed by the governor and enjoy subpoena power. Among them are Nevada State Board
of Public Accountants, Nevada State Board of Chiropractic Examiners, State Contractors
Board, Board of Dental Examiners, Board of Dispensing Opticians, Nevada Gaming
Commission, Board of Medical Examiners, State Board of Nursing, State Board of Sheep
Commissioners, Nevada Athletic Commission, Colorado River Commission, State Dairy
Commission, Nevada Industrial Commission, Nevada Real Estate Advisory Commission,
Public Service Commission, and Nevada Tax Commission.
[Headnote 4]
Notwithstanding the foregoing, Smith insists that the subpoena power given the
commission is constitutionally deficient because of the failure to prescribe the limits within
which the power is to be exercised. The contention is unsound. The grant of power is in the
following language: The commission may subpoena witnesses and require the production of
any evidence relevant to any hearing conducted by the commission. The limitations upon
that power are found in NRS 233.070 (1): The commission shall receive and investigate
complaints and initiate its own investigation of tensions, practices of discrimination and acts
of prejudice against any person or group because of race, color, creed, national origin or
ancestry, and may conduct private or public hearings with regard thereto. The questions to
the subpoenaed witness must, of course, be pertinent and relevant to the purposes for which
the commission is authorized to conduct hearings. A fishing expedition into other matters is
not authorized. The limitation meets constitutional requirements. Pope & Talbot Inc. v.
Smith, 216 Or. 605, 340 P.2d 960; Warren v. Marion County, 222 Or. 307, 353 P.2d 257;
Application of Waterfront Commission of New York Harbor, 32 N.J. 323, 160 A.2d 832; cf.
Watkins v. U.S., 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; and Sweezy v. New
Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.
1 L.Ed. 2d 1311, where inter alia, the matter of pertinency is discussed.
3

[Headnotes 5-8]
Finally we turn our attention to the problem of enforcement. The statute with which we are
dealing does not expressly confer enforcement powers upon the commission, nor are we
willing to imply such power though some courts have done so. See Ex parte Sanford, 236
Mo. 665, 139 S.W. 376; cases cited in 41 Tex.L.Rev. 874. Normally the power of an
administrative agency to issue subpoenas and the power to enforce them through citation for
contempt, are treated as separate and functionally unrelated problems. We think it appropriate
that they are so treated. The power of citation for contempt is best lodged in a court of
competent jurisdiction, where judicial safeguards will attend the hearing. The Supreme Court
of the United States has declared it permissible for a court to enforce an administrative
subpoena issued for investigatory purposesif the purpose is lawfully authorized and within
the legislative power to command. Oklahoma Press Publishing Company v. Walling, 327
U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614. In principle the Nevada case of Ex parte Hedden, 29
Nev. 352, 90 P. 737, is in accord, though it involved a grand jury exercising adjudicatory as
well as investigatory functions. The disobedience of a subpoena duly served is deemed
contempt, NRS 22.010 (4), and a court proceeding on affidavit, citing the unwilling witness
to show cause why he should not be punished for contempt, is the proper method of
enforcement. Ex parte Hedden, supra. The commission may lawfully proceed to enforce
subpoenas issued by it in that manner.
Accordingly we reverse the judgment below declaring unconstitutional the statute
creating the Nevada Commission on Equal Rights of Citizens; we reverse the declaration
that the commission's subpoena power is void and unconstitutionally conferred; we
reverse the judgment permanently enjoining any effort by the commission to compel
Smith's testimony; and we affirm the judgment dismissing Smith's claimed damages for
malicious abuse of process.
____________________

3
The respondent Smith relies heavily upon the Watkins and Sweezy opinions. Neither is in point. Those
cases relate to constitutional safeguards available to a witness who has appeared and submitted himself to
interrogation. That matter is not reached in the instant case, for Smith simply refused to appear; nor will we
assume that his First Amendment rights would have been violated (as in Watkins and Sweezy) had he submitted
to questioning.
unconstitutional the statute creating the Nevada Commission on Equal Rights of Citizens; we
reverse the declaration that the commission's subpoena power is void and unconstitutionally
conferred; we reverse the judgment permanently enjoining any effort by the commission to
compel Smith's testimony; and we affirm the judgment dismissing Smith's claimed damages
for malicious abuse of process.
____________
80 Nev. 476, 476 (1964) Churchfield v. Cordill
CHESTER DE ROY CHURCHFIELD and CHESTER DANIEL CHURCHFIELD dba
CHURCHFIELD & SON CONSTRUCTION CO., Appellants, v. ROBERT M. CORDILL,
Respondent.
No. 4818
November 12, 1964 396 P.2d 399
Appeal from the Eighth Judicial District Court, Clark County; Jon R. Collins, Judge.
Action to foreclose a labor lien against realty. The lower court entered an order denying a
motion for rehearing and a motion for summary judgment, and an appeal was taken from such
order. The respondent moved to dismiss the appeal. The Supreme Court held that appeal
could not be maintained where it purported to be taken from order denying a motion to rehear
a motion for summary judgment, and opening brief had no relation thereto but referred
instead to an order granting a motion for summary judgment.
Stanley W. Pierce and Don L. Griffith, of Las Vegas, for Appellants.
Robert E. Jones, of Las Vegas, for Respondent.
Appeal and Error.
An appeal could not be maintained where it purported to be taken from an order denying a motion to
rehear a motion for summary judgment, and opening brief had no relation thereto but referred instead to an
order granting a motion for summary judgment.
OPINION
Per Curiam:
This is an action to foreclose a labor lien against the real property described in the
complaint. After issue was joined, respondent filed a motion for summary judgment. The
motion was argued on May 15, 1964. On June 10, 1964, before the judgment was entered on
the motion, appellants filed a motion for an order allowing the motion for summary judgment
to be reheard. The judgment on the motion was entered July 8, 1964. On August 18, 1964 the
lower court entered its order denying the motion to rehear the motion for summary judgment.
Appeal is from said order of August 18, 1964. No appeal was taken from the order granting
the summary judgment or from the summary judgment based thereon.
Respondent has moved this court to dismiss the appeal upon the grounds that the order
appealed from is not an appealable determination, and that appellants' opening brief fails to
discuss any legal issue relating to the order appealed from, to wit, the order denying the
motion to rehear the motion for summary judgment.
It is true that appellants' brief is concerned entirely with the granting of the summary
judgment. No mention whatsoever is made of the order appealed from.
The first sentence of the opening brief states:
Appeal from an order granting motion of defendant-respondent for summary judgment.
The last sentence of the opening brief which is the conclusion thereof states: "For the
reasons set forth above, appellant respectfully urges that the summary judgment in favor
of respondent be reversed."
For the reasons set forth above, appellant respectfully urges that the summary judgment
in favor of respondent be reversed.
Without determining whether or not the order appealed from is an appealable
determination under NRCP 72(b) we conclude that the motion to dismiss must be granted
upon the ground that the opening brief has no relation to the order appealed from.
The motion to dismiss the appeal is granted.
____________
80 Nev. 478, 478 (1964) Marshall v. District Court
THE STATE OF NEVADA, Upon the Relation of Edward G. Marshall, District Attorney of
Clark County, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, IN AND FOR THE COUNTY OF CLARK, Respondents.
No. 4749
November 16, 1964 396 P.2d 680
Original proceedings in certiorari.
Proceeding commenced by a district attorney challenging the validity of an order of the
Eighth Judicial District Court in and for the County of Clark ordering a transcript to be
prepared at county expense to be delivered to newly appointed attorney to represent indigent
defendant on retrial following disagreement of jury. The Supreme Court, Thompson, J., held
that the action was warranted by statute, was compelled by the federal Constitution, and, even
in the absence of such provisions, would have been sustainable under the inherent power of
the court to exercise reasonable control over criminal proceedings.
Writ denied.
Edward G. Marshall, Clark County District Attorney, Las Vegas, for Petitioner.
1. Costs.
Statutes authorized court to direct that transcript of first criminal trial be furnished at county expense to
newly appointed attorney to represent indigent defendant at retrial ordered because jury had not been able
to agree upon verdict. NRS 3.320, subd. 3, 3.370, subd. 2; U.S.C.A.Const. Amend. 14.
Demands of due process and equal protection clauses of Fourteenth Amendment to federal Constitution
compelled that court direct that transcript of first criminal trial be furnished at county expense to newly
appointed attorney to represent indigent defendant at retrial ordered because jury had not been able to
agree upon verdict. NRS 3.320, subd. 3, 3.370, subd. 2; U.S.C.A.Const. Amend. 14.
3. Costs.
Inherent power of court to exercise reasonable control over criminal proceeding would have sustained,
even in absence of statutory or constitutional provisions, order of court directing that state furnish
transcript of first criminal trial at county expense to attorney appointed to represent indigent defendant at
retrial ordered because jury had not been able to agree upon verdict. NRS 3.320, subd. 3, 3.370, subd. 2;
U.S.C.A.Const. Amend. 14.
OPINION
[Headnote 1]
Warren Lonnell Harris, an indigent, is charged with murder. He was tried once but the jury
could not agree upon a verdict. He is scheduled to be tried again. The court-appointed
attorney who represented him at the first trial was relieved of his responsibility to proceed
further and another attorney was appointed to carry on. The newly-appointed counsel moved
for an order requiring the state to furnish him with a copy of the transcript of the first trial. He
needs it for information, preparation, and for possible impeachment use during the retrial
should a witness alter his testimony in a material respect. Were Harris financially responsible,
he could purchase a copy of the transcript; unfortunately he is without money. The district
court granted his motion. The transcript was ordered to be prepared at county expense and a
copy thereof delivered to counsel for Harris.
Harris. By this proceeding in certiorari the district attorney challenges the validity of that
order, contending that the court lacked power to make it. His argument is based upon the
absence of any statute authorizing such a charge against the county. The argument has no
merit.
NRS 3.320 (3) relating to the duties of court reporters in criminal cases provides, in part,
that the reporter if directed by the court * * * must, within such reasonable time after the
trial of such case as may be designated by law or, in the absence of any law relating thereto,
by the court, write out the same, or such specific portions thereof as may be requested, in
plain and legible longhand, or by typewriter or other printing machine, and certify to the same
as being correctly reported and transcribed, and, when directed by the law or court, file the
same with the clerk of the court. NRS 3.370(2) reads, in part, that in criminal cases the fees
for reporting and for transcripts ordered by the court to be made must be paid out of the
county treasury upon the order of the court. These provisions embrace the order of which the
district attorney complains.
[Headnote 2]
However, we wish to mention that in this case the judicial power to make the order in
question does not rest primarily upon the statutory provisions which we have related. The
demands of the due process and equal protection clauses of the fourteenth amendment to the
federal constitution compel that a copy of the transcript of the first trial be furnished Harris.
The mentioned statutes merely implement the constitutional mandate. Griffin v. Illinois, 351
U.S. 12, 76 S.Ct. 585, involved an indigent's right to a transcript for the purpose of appellate
review. Illinois had not, by statute, authorized an indigent appellant to obtain the transcript at
state expense. The United States Supreme Court held that the due process and equal
protection clauses of the fourteenth amendment prevent a state from denying appellate review
to an indigent because of his poverty. Justice Black wrote: There can be no equal justice
where the kind of a trial a man gets depends upon the amount of money he has.
money he has. Destitute defendants must be afforded as adequate appellate review as
defendants who have money enough to buy transcripts. * * * Plainly, the ability to pay costs
in advance bears no rational relationship to the defendant's guilt or innocence and could not
be used as an excuse to deprive a defendant of a fair trial. The Griffin principle has been
subsequently applied by the high court to closely related situations. In Burns v. Ohio, 360
U.S. 252, 79 S.Ct. 1164, it was held that Griffin applied to state collateral proceedings even
where a criminal appeal was discretionary and not a matter of right. In Smith v. Bennett, 365
U.S. 708, 81 S.Ct. 895, the court held that a state may not require a payment of statutory
filing fees by an indigent before his appeal would be docketed. In Eskridge v. Washington
State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, the Griffin principle
was given retrospective application. See also Draper v. Washington, 372 U.S. 487, 83 S.Ct.
774; Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917; Lane v. Brown, 372 U.S. 477,
83 S.Ct. 768.
As already stated the Griffin doctrine involved fundamental fairness to one seeking
appellate review of his conviction. He was no longer clothed with the presumption of
innocence. In the case before us we are concerned with fundamental fairness to one who is
about to stand trial for a capital offense. He presently enjoys the presumption of innocence.
We believe that the Griffin principle has greater need for application here than it did in
Griffin itself, for we know that everyone accused of crime has a constitutional right to a fair
trial. On the other hand, we are not at all certain that a convicted defendant has a
constitutional right to appeal; the United States Supreme Court has never said so. Indeed, that
court stated in McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, that a review by an appellate
court of the final judgment in a criminal case, however grave the offense of which the
accused is convicted, was not at common law and is not now a necessary element of due
process of law. In the light of Griffin v. Illinois, the order made below was compelled.
[Headnote 3]
We would reach the same result quite apart from any consideration of the particular
statutory and constitutional demands which we have discussed. The inherent power of a court
to exercise reasonable control over a criminal proceeding cannot seriously be questioned. In
Marshall v. District Court, 79 Nev. 280, 382 P.2d 214, we held that the district court in a
murder case had the power to order the district attorney to produce for the inspection of the
defendant the autopsy report of the victim any and all photographs relevant to the case, all
statements of all persons who testified at the preliminary hearing or who will be witnesses at
the trial, and a certain tape recording given by the defendant. In Pinana v. District Court, 75
Nev. 74, 334 P.2d 843, we held that the district court had the power to deny the defendant's
request for pre-trial inspection of statements made by her to the district attorney. In neither
case was certiorari available to control judicial discretion or to review the propriety of judicial
action. In each case the state had incurred an expense in obtaining the information sought by
the defendant's pre-trial discovery motions, and in each instance the court possessed power to
enter the order in question.
We are not unmindful of the law about discovery during trial. Jencks v. United States, 353
U.S. 657, 77 S.Ct. 1007; Walker v. State, 78 Nev. 463, 376 P.2d 137; State v. Bachman, 41
Nev. 197, 168 P. 733. Each case held that it was error for a trial court to deny a defendant's
motion during trial to produce for inspection and possible use for impeachment purposes
written reports made by the witness on the stand to the government's investigators. In the
instant matter if the transcript of the first trial is not made available to the defendant now, it is
reasonably to be anticipated that his request will be renewed during trial in order that he may
possibly use the prior testimony of the witnesses for impeachment purposes. By analogy to
the cited cases such a request during trial should be honored by the court. Surely it was
prudent for the court below to avoid probable trial disruption and delay {to permit relevant
parts of the transcript in question to be prepared for possible use in cross examination of
the witness) and order preparation of the transcript now.
probable trial disruption and delay (to permit relevant parts of the transcript in question to be
prepared for possible use in cross examination of the witness) and order preparation of the
transcript now.
Primarily because of the Griffin doctrine, but also for the other reasons expressed, we deny
the writ.
____________
80 Nev. 483, 483 (1964) Zale-Las Vegas Inc. v. Bulova Watch Co.
ZALE-LAS VEGAS, INC., a Nevada Corporation; Zale or Zales Jewelry Store, In Las Vegas,
Nevada, Appellants, v. BULOVA WATCH COMPANY, INC., Respondent.
No. 4753
November 16, 1964 396 P.2d 683
Action wherein the lower court rendered a judgment upholding the validity of the Fair
Trade Act, and appeal was taken. The Supreme Court, Badt, C. J., held that the Fair Trade
Act was not a lawful and reasonable exercise of police power and was unconstitutional.
Reversed.
Foley Brothers, of Las Vegas, for Appellants.
Sundean, Christensen, Bell, Morris & Albright, of Las Vegas, for Respondent.
Mere fact that article was subject to regulation cannot, of itself, indicate that it is affected with public
interest so as to make its regulation proper.
2. Courts.
Court was under no compulsion to follow decisions of United States Supreme Court determining whether
acts offended federal Constitution in determining whether similar act offended state Constitution as
constituting invalid exercise of state police power.
3. Trade Regulation.
The Fair Trade Act was not a lawful and reasonable exercise of police power and was unconstitutional.
NRS 599.010599.050, 599.030; Const. art. 1, 18, 20; art. 4, 1, 17.
OPINION
This is an appeal from the judgment of the court below upholding the validity of the Fair
Trade Act, being Chapter 48, Stats. of Nevada, 1937, and comprising NRS 599.010-599.050,
and granting a preliminary injunction enjoining appellants from advertising, offering for sale,
or selling Bulova products at prices below those established by the fair-trade agreement
between Bulova and Ginsburg Jewelry Company. We reverse.
The title to the act in question reads as follows: An Act to protect trade-mark owners,
their agents, producers, distributors, and the general public against injurious and uneconomic
practices in the distribution of competitive commodities bearing a distinguishing trade mark,
brand or name, through the use of voluntary contracts establishing minimum resale prices,
and other matters properly relating thereto.
Section 2 of the act reads: Willfully and knowingly advertising, offering for sale or
selling any commodity at less than the minimum price stipulated in any contract entered into
pursuant to the provisions of this act, whether the person so advertising, offering for sale or
selling is or is not a party to such contract, is unfair competition and is actionable at the suit
of any person damaged thereby. (Emphasis supplied.)
An annotation in 60 A.L.R.2d 420, entitled Validity, under state constitutions, of
nonsigner provisions of Fair Trade Laws (1958), discusses under appropriate headings all
the jurisdictions to the date of the annotation which showed, at that time, if our count is
correct, 15 jurisdictions including the United States Supreme Court, holding in favor of
constitutionality, and 13 holding against constitutionality. Subsequent to that annotation, 12
states have decided the issue10 against constitutionality and 2 in favor, so that at
present 23 jurisdictions have held such acts unconstitutional as against 17 upholding the
acts.
annotation, 12 states have decided the issue10 against constitutionality and 2 in favor, so
that at present 23 jurisdictions have held such acts unconstitutional as against 17 upholding
the acts. The issue has not been decided in this jurisdiction and we are therefore free to adopt
either theory.
To discuss all the cases, or even to cite or list the same, is beyond the requirements of this
appeal. We restrict ourselves, then, to reciting the rationale of the leading cases upholding the
Fair Trade Acts and the rationale of the cases striking them down, and to our choice of the
latter.
The writer of the annotation, at 60 A.L.R.2d 422, describes the issue in the following
words:
Fair trade laws, although of comparatively recent origin, are unquestionably the most
familiar of legislative methods to control resale prices. Such statutes validate contractual
provisions by which the buyer of a trademarked or brand name' commodity agrees that he
will not resell the commodity except at the price stipulated * * *. Included in such statutes are
so-called nonsigner provisions'often described as the backbone of fair trade
legislationunder the terms of which one not a party to such a contract, who, with notice,
offers for sale or sells a commodity at less than the resale price stipulated in a contract
between the vendor and a buyer of a trademarked commodity, is made subject to liability for
unfair competition;
* * *. The validity of these provisions as a matter of federal constitutional law having been
established by a decision of the United States Supreme Court, the question to be dealt with
herein is whether non-signer provisions are defective from a state constitutional point of
view.
The provisions of the Nevada constitution involved are the following sections quoted in
pertinent part:
Art. 1, 1: All men * * * have certain inalienable rights among which are those * * *
Acquiring, Possessing and Protecting property * * *.
Art. 1, 8: * * * No person shall * * * be deprived of life, liberty, or property without
due process of law; * * *.
Art. 1 20: This enumeration of rights shall not be construed to impair or deny others
retained by the people.
Art. 4, 1: The Legislative authority of this State shall be vested in a Senate and
Assembly which shall be designated The Legislature of the State of Nevada' * * *.
Appellants contend that under these provisions and under Article 4, 17, the act violates
the constitution, because (1) it is in violation of the requirement: Each law enacted by the
legislature shall embrace but one subject, and matter, properly connected therewith, which
subject shall be briefly expressed in the title * * *; in that the title to the act recites that it is
An Act to protect trade-mark owners, their agents, producers, distributors, and the general
public against injurious and uneconomic practices in the distribution of competitive
commodities bearing a distinguishing trade mark, brand or name, through the use of voluntary
contracts establishing minimum resale prices * * *, thus referring only to voluntary
contracts, while effective against contracts not signed by the vendees of the trademark
commodities. Although this issue is argued at great length in the briefs, we find it
unnecessary to dispose of it by reason of our other reasons for holding the act in violation of
the constitution.
Appellants attack the legislation upon the further grounds as follows:
2. It is unlawful exercise by the Legislature of the police power granted to the state.
3. The Act constitutes an unlawful deprivation of property rights of Appellant contrary to
the due process clause of the Nevada Constitution.
4. The Act is an unlawful delegation of Legislative authority contrary to the Nevada
Constitution.
So heavily does the respondent rely on Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 55
P.2d 177, that its quotations from the opinion consume 15 pages of its typewritten brief.
Many pages of the quoted matter are devoted to the proposition that the advisability of the
legislation, or whether it is good or bad, is no concern of the court.
of the court. This point has been so often determined by this court that no great citation of
authorities or quotation of page after page of the decisions is or was necessary. The California
court did definitely hold, however, as concisely noted in headnote 9: Power of state to
regulate right of free bargaining in exercise of police power includes power to regulate price;
and, as concisely stated in headnote 10: Price fixing in statute affecting entire class of
articles which is reasonably subject of classification is valid, notwithstanding that articles
involved may not be affected with public interest; and further, as concisely, stated in
headnote 11: Purchase and sale of article or entire class of articles is affected with public
interest where subject to regulation under police power. (Emphasis supplied.)
[Headnote 1]
This statement (headnote 11) holds itself up by its own bootstraps. The main question as
will hereafter appear is whether the regulation was a proper exercise of the police power. The
mere fact that an article was subject to regulation under the police power cannot, of itself,
indicate that it is affected with a public interest.
Having then seen that price fixing and regulating price are recognized as being the
purpose of the act, it then appears, as indicated briefly in headnote 12, that the provisions in
question of the Fair Trade Act were intended to protect property and contract rights of
manufacturer or producer of commodities by prevention of price cutting, and not primarily as
price-fixing statute * * *. (Emphasis added.)
The court then proceeded to hold that such acts were not arbitrary or discriminatory and
were not an unconstitutional denial of the equal protection of the laws. The court held further
that, in approving injunctions issued under such statutes with reference to the sale of
trade-marked commodities at prices less than those fixed by the producer in contracts with
other distributors or other retailers (although the particular defendant was not a party thereto),
the relief was limited to the factual situation presented to the court.
In the case under discussion, Factor was engaged in the manufacture of cosmetics and
toilet articles manufactured by it under registered trade-marks, and had transferred to
Sales Builders, Inc., the exclusive right and privileges of selling such commodities in the
United States, "including the state of California" with the good will pertaining thereto and
with the right to use the trade-marks; that Kunsman offered such commodities "at prices
conspicuously lower than the marked or established prices of said commodities as
so-called 'leaders,' * * *"; that persons or traders such as Kunsman have become known
as "cut-rate drugstores."
the manufacture of cosmetics and toilet articles manufactured by it under registered
trade-marks, and had transferred to Sales Builders, Inc., the exclusive right and privileges of
selling such commodities in the United States, including the state of California with the
good will pertaining thereto and with the right to use the trade-marks; that Kunsman offered
such commodities at prices conspicuously lower than the marked or established prices of
said commodities as so-called leaders,' * * *; that persons or traders such as Kunsman have
become known as cut-rate drugstores. The evils of such system were recited in the
opinion. Other dealers were forced to meet the cut prices, trade-marks and brand items were
offered at prices cut to a point yielding no profit and in many cases representing a loss. Other
distributors in general observe and conform with the terms of the contracts. Sales Builders,
Inc., enjoys a good profitable business under the California Fair Trade Act, but the practices
of the defendant have caused other distributers to sell such products at conspicuously lower
prices, so that other dealers are forced to meet defendant's price competition. The defendant
has procured, and continues to procure, commodities manufactured by Max Factor & Co.
bearing the trade-marks, brands, and names of Max Factor & Co., and has sold, and is now
selling, the commodities at prices less than the retail sales prices which are being sustained by
substantially all of the retail dealers in cosmetics and toilet articles in the state of California.
Such practices are unduly influencing retail and wholesale distributers of Max Factor &
Co.'s products * * *, and that other retailers will have to meet such prices, that the result
will be the destruction of the business of plaintiffs and the good will pertaining thereto.
The foregoing quotations are for the most part the statements by the California court of the
allegations of the plaintiffs' complaint. The trial court sustained a demurrer to the complaint.
The Supreme Court of California reversed, rejecting respondent's main contention that such
a statute violates the due process and equal protection clauses of the Federal and State
Constitutions, in that it denies to him the liberty and freedom of contract."
of contract. The court first discussed the theory of the California Cartwright Act, illustrating
the theory then adopted that at the time such statutes were passed [the legislature was], of
the view that, from a social standpoint, free and open competition was desirable. The basis of
this view is that, in the long run, it is against public interest to allow the manufacturer,
producer, or distributer to fix the resale price of an article. In recent years, there has
developed, in opposition to the above views, the concept that a manufacturer of a
trademarked article that is sold in competition with articles of a similar nature and who has
fixed a fair price at which he, as well as his distributer and retailer, can make a fair profit, has
a property right in the good will towards his product which he has created, and that it is sound
public policy to protect that property right against destruction * * *. The basic theory on
which this concept rests is that, from a social standpoint, price cutting, in the long run,
adversely affects the public interest
* * *. [T]he state Legislature * * * adopted in 1907, partially at least, the first economic
policy above discussed. By the enactment of the Fair Trade Act in 1931 * * * the state
Legislature, for reasons known to it and which we must presume were sufficient, has seen fit
to attempt to change its former policy and to adopt the second economic concept above
discussed. The California court then goes on to discuss at length the proposition that it has
no duty to determine whether the statute is wise or unwise, but only to determine whether the
subject of the legislation is within the state's power, and, if so, to determine whether the
means adopted to accomplish the result are reasonably designed for that purpose, and have a
real and substantial relation to the objects sought to be attained. The California court then
quotes at length from Nebbia v. New York, 291 U.S. 502, at 537, 54 S.Ct. 505, 516, 78 L.Ed.
940, 89 A.L.R. 1469, which upholds the right of a state to adopt whatever economic policy
may reasonably be deemed to promote public welfare, and to enforce that policy by
legislation adapted to its purpose. It emphasized safeguard of the consumers' interests, waste
harmful to the public, the threatened cutting off the supply of a commodity needed by the
public, the destruction of the industry itself.
supply of a commodity needed by the public, the destruction of the industry itself. It sustained
price control if not arbitrary, discriminatory or demonstrably irrelevant and an unnecessary
and unwarranted interference with individual liberty. The United States Supreme Court went
on to say: In the second place, it must be kept in mind that the present statute is one passed
in the exercise of the state's police power, and so differs fundamentally from statutes passed
by the federal government. The court went on to concede that * * * when the Legislature
attempts to regulate the price of a particular commodity, in order to justify classifying that
article differently from other commodities, its purchase and sale must affect the public
interest.
Thompson, J., and Shenk, J., dissented. We discuss these dissents because they support
what we recognize as the majority rule and as the modern trend. (Mr. Justice Shenk first
concurred in the dissent of Mr. Justice Thompson and then wrote an additional dissenting
opinion of his own.) The dissent asserted that no answer could be found to the contention that
the act violated section 1 of Article 1 of the California constitution: All men are by nature
free and independent, and have certain inalienable rights, among which are those of enjoying
and defending life and liberty; acquiring, possessing and protecting property; and pursuing
and obtaining safety and happiness'; and section 13 of the same article that no person shall
be deprived of life, liberty or property without due process of law.' The dissent quotes Ex
parte Quarg, 149 Cal. 79, 84 P. 766, 5 L.R.A., N.S., 183, 117 Am.St.Rep. 115, 9 Ann.Cas.
747, as follows:
The constitutional guaranty securing to every person the right of acquiring, possessing
and protecting property, refers to the right to acquire and possess the absolute and
unqualified title to every species of property recognized by law, with all the rights incidental
thereto, and, in connection with the right of personal liberty, it includes the right to dispose of
such property in such innocent manner as he pleases, and to sell it for such price as he can
obtain in fair barter.' (Italics added.) To the same practical effect is Ex parte Dickey, 144
Cal.
144 Cal. 234, 77 P. 924, 925, 66 L.R.A. 928, 103 Am.St. Rep. 82, 1 Ann.Cas. 428, in which
we find this expression:
This right of contract common to all legitimate occupations is an asset of the petitioner
in his chosen occupation, and, as has been said, is a part of the property in the enjoyment of
which he is guarantied protection by the Constitution. By the act in question he is arbitrarily
stripped of this right of contract, and deprived of his property, and left, in following his
vocation and in pursuit of his livelihood, circumscribed and hampered by a law not applicable
to his fellow men in other occupations.'
The dissent goes on to say:
Second I refer to Doubleday, Doran & Co., Inc. v. R. H. Macy & Co., Inc., 269 N.Y. 272,
199 N.E. 409, 411, which case involved a practically verbatim copy of the section here
involved, adopted by the Legislature of New York. Bearing in mind that the New York Court
of Appeals was the same court which first sustained the New York Milk Control Act (People
v. Nebbia, 262 N.Y. 259, 186 N.E. 694), which was the subject of judicial inquiry in the case
of Nebbia v. New York, from which the majority opinion has quoted so extensively, the
expressions we find in the case are especially illuminating. It is there said:
That the states cannot fix the selling price of any and all commodities has been settled.
Williams v. Standard Oil Co., 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287, 60 A.L.R. 596;
Tyson & Bro. United Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed.
718, 58 A.L.R. 1236; Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 43
S.Ct. 630, 67 L.Ed. 1103, 27 A.L.R. 1280; Straus v. Victor Talking Machine Co., 243 U.S.
490, 37 S.Ct. 412, 61 L.Ed. 866, L.R.A. 1917E, 1196, Ann.Cas. 1918A, 955.
Books, at least these books, are not affected with the public interest any more than
theater tickets; no emergency has yet arisen in literary publications, and the business is not
such as comes within the class which must submit to rate fixing. Circumstances which cannot
be foreseen from one generation to another may arise which will require certain articles to
submit to regulatory prices in order that the public may get them at all or get them in a
pure and beneficial state.
which will require certain articles to submit to regulatory prices in order that the public may
get them at all or get them in a pure and beneficial state. We cannot always express legislative
power in exact formulas nor decide a case before it happens. Experience is the mother of
teachers. Under the Nebbia Case for instance (Nebbia v. New York, 291 U.S. 502, 54 S.Ct.
505, 78 L.Ed. 940, 89 A.L.R. 1469), no one would doubt now that New York state would
have the power to get milk to the public somehow if any combination of forces threatened to
shut off all supply or to deteriorate that which was supplied.
1
The price might be an element
to be considered with other things in such a case. So we thought in People v. Nebbia, 262
N.Y. 259, 186 N.E. 694. But to fix arbitrarily the price of books by legislation and not by
agreement comes within the condemnation of the decisions which have heretofore dealt with
like legislation. What the Legislature cannot do directly it cannot do indirectly, nor does it
cease to be a price fixed by the Legislature because that body has clothed the publisher with
the power or authority to establish it.'
The dissent further refers to several opinions by the United States Supreme Court dealing
with the question of whether a business is affected with a public interest so as to make it
subject to regulatory measures. These are specifically defined, and the following is then
quoted, with italics by the California court, from Wolff Packing Co. v.
____________________

1
But how different are the facts in the present casenot the distribution of milk, in which the public is
definitely involved, but the distribution of Bulova watches. Respondent introduced in evidence the price list of
all Bulova watches which was enclosed with the letter referring to the Bulova fair-trade agreement in effect in
your state, and advising all persons selling watches and jewelry, although you are not a signatory to these
agreements, you are obliged to advertise and sell Bulova fair-trade products at no less than Bulova's stipulated
minimum resale prices. The price list ranged from $24.75 to the Accutron (platinum) $2,500. The Beau
Brummel WW' is listed at $400. It was stated in oral argument and not denied that the very high prices listed
for some of the wrist watches resulted from the decorations of diamonds and other jewels in the wristband. It is
difficult to conclude that in such cases the fixing of a minimum price was a protection of the manufacturer's
trade-mark or that it was a commodity affected with a public use or in which the public was interested.
Co. v. Court of Industrial Relations, 262 U.S. 522, 535, 43 S.Ct. 630, 632, 67 L.Ed. 1103, 27
A.L.R. 1280:
In nearly all the businesses included under the third head above, the thing which gave the
public interest was the indispensable nature of the service and the exorbitant charges and
arbitrary control to which the public might be subjected without regulation.'
There follows this language:
It is said that whether these results should follow is an economic problem with which the
courts have nothing to do. But it is the business of the courts to see to it that, in carrying out
any such program, the fundamental and guaranteed rights of the citizen, to deal with his
property as he chooses, subject to such reasonable regulations as may properly be imposed,
are not destroyed. The statute under attack does not regulate. It prohibits. It is essentially a
price-fixing statute. To me it is beyond question that the Legislature itself could not fix the
retail prices of all or any commodities not affected with a public interest or clothed with a
public use. We are bound by the decisions of the Supreme Court of the United States on that
subject, as pointed out in the opinion of Mr. Justice Thompson. If the Legislature itself is
without power to fix the retail price of such commodities, how then can it delegate that power
to one who is governed by no power except his own self interest?
Nebbia v. New York, supra, involved the price fixing of milk. The majority upheld the
statute. But even with a commodity of that nature, four justices dissented.
Strong reliance is placed upon Old Dearborn Distributing Co. v. Seagram-Distillers Corp.,
299 U.S. 183, 81 L.Ed. 109, 106 A.L.R. 1476, in which the Supreme Court of the United
States upheld the Chicago Fair Trades Act whose primary aim is to protect the
propertynamely, the good willof the producer, which he still owns. The price restriction
is adopted as an appropriate means to that perfectly legitimate end, and not as an end in itself.
* * * * *
Appellants own the commodity; they do not own the mark or the good will that the mark
symbolizes. And good will is property in a very real sense, injury to which, like injury to
any other species of property is a proper subject for legislation."
good will is property in a very real sense, injury to which, like injury to any other species of
property is a proper subject for legislation.
In concluding, the court said:
* * * [S]ince the sole purpose of the present law is to afford a legitimate remedy for an
injury to the good will which results from the use of trade-marks, brands or names, it is
obvious that its provisions would be wholly inapplicable to goods which are unmarked.
Thus the sole ground for upholding the validity of the Chicago Fair Trade Act was to
protect the trade-mark or brand of the producer.
Many cases uphold the validity of fair trade laws and reject the attacks made on such laws,
whether the attack is based upon the claim that the particular statute is an unlawful exercise
of the police power or that it violates due process or that the non-signer clause is an unlawful
delegation of legislative authority.
Of the cases that strike down such statutes, some do it upon a single one of the grounds
last mentioned, or upon two of such grounds, or upon all such grounds. The grounds that the
statute deprives a non-signer of his property without due process and also that it is an
unlawful exercise of the police power overlap. If the commodity in question is affected with a
public use or its regulation is required for the public health or welfare, then the police power
may be used to regulate its sale even though its result is to interfere with the disposition of his
own property lawfully acquired.
With special regard to the closing paragraph of the Old Dearborn case quoted, supra,
upholding the legislation as a protection of the manufacturer's ownership of his trade-mark or
good will, we quote from an article by Professor Harry Shulman of Yale Law School: The
Fair Trade Acts and the Law of Restrictive Agreements Affecting Chattels, in 49 Yale Law
Journal 607, 616:
It is common knowledge that the pressure for the passage of these Acts, insofar as it was
publicly disclosed, came not from manufacturers or other trademark owners but from
distributorsfirst and foremost the retail druggists associations and then other retail and
wholesale distributors.
and wholesale distributors. It is doubtless true that many distributors wanted resale price
maintenance at the time of the Dr. Miles case. And doubtless true also that some
manufacturers want resale price maintenance now for the reasons stated by the Supreme
Court, Professor Chafee and Mr. Rogers. But the organized pressure for the Fair Trade Acts,
however subsidized privately, came from distributor groups; and the legislative response was
response to distributor groups. Distributors organized in Code Authorities under the NRA
sought to deal with the problems of loss leaders, price cutting and so-called predatory or
cut-throat price competition. Upon the demise of the NRA, they turned to the Fair Trade Acts
as a partial substitute. The concern of the distributors was not for the goodwill symbolized by
the trade-mark, but for their own welfare. They sought an adequate mark-up, and adequate
profit on the goods which they marketed,not protection of the manufacturer's trade
expectancies. They sought to protect themselves against old and new methods of
merchandising which threatened their positions whether or not the producer or his goodwill
were similarly threatened. If the producer were also to profit from the scheme, that was an
accidental incident.
In an article written some 14 years later by Professor Carl H. Fulda, of Rutgers University,
21 University of Chicago Law Review 175, the author says: The good will' theory of the
Old Dearborn decision thus seems to be at odds with both the realities of the market place and
the theories of the law of unfair competition. He goes on further to say: * * * [T]he second
Schwegmann case [in which Schwegmann reduced his profit to 15% instead of the minimum
40% fixed by the producer] is Exhibit A for the proposition * * * that the fair-trade laws
make no distinction between competitive and predatory price cutting. The author continues:
On the basis of these considerations the Supreme Court of Florida held recently that the
fair-trade law of that state is arbitrary and unreasonable and violates the right to own and
enjoy property' guaranteed by the Florida Constitution, and that it serves a private rather
than a public purpose.'" Liquor Store, Inc. v. Continental Distilling Corp., 40 So.2d 371,
375 {Fla.
a private rather than a public purpose.' Liquor Store, Inc. v. Continental Distilling Corp., 40
So.2d 371, 375 (Fla. 1949).
Similarly the Supreme Court of Michigan in Shakespeare Co. v. Lippman's Tool Shop
Sporting Goods Co., 334 Mich. 109, 54 N.W.2d 268, held the non-signer clause
unconstitutional as violative of the due process clause of the state constitution. It rejected the
argument that the non-signer clause was a valid exercise of the state's police power because it
is directed against destructive price cutting. The court said: Can it be said that by the
process of reducing prices either war, destruction or evil are visited upon the public health,
safety, morals or the general welfare? (That is the controlling question.) Such is not the
concept upon which America's competitive economy was developed.
Likewise the Supreme Court of Georgia in Grayson-Robinson Stores, Inc. v. Oneida,
Limited, 209 Ga. 613, 75 S.E.2d 161, held a non-signer act to be null and void because it
offends the due process clause of the Georgia constitution.
In Union Carbide & Carbon Corp. v. White River Distributors, 224 Ark. 558, 275 S.W.2d
455, the Supreme Court of Arkansas struck down the Fair Trade Act, as it was not protective
of the public welfare, and was in violation of the due process clause of the state constitution:
* * * It is a generalization, but not an overstatement, to say that the effort to fix prices' is
made by groups who desire to sell something for more than the sponsoring group believes
that the purchasing public would pay for that something' without an enforced fixed price. It
would seem apparent that the principal objective of minimum price maintenance is the
protection of profit margins for retailers and distributors unable or unwilling to meet the
pressure of competition.
Consider also the following reasoning of the Arkansas case:
* * * Considering the Act in relation to this particular case, it virtually gives appellant the
absolute right to fix the price at which Prestone must be sold to the consuming public in
Arkansas without regard to the cost of manufacture or distribution.
consuming public in Arkansas without regard to the cost of manufacture or distribution. We
are not forgetting that it must first contract with one retailer in the state and appellee must
have knowledge of contract and the fixed price, but these provisions consist more of form
than substance and merely indicate a desperate attempt to hedge against the charge of
unconstitutionality. Nobody doubts the feasibility of appellant acquiring one contract dealer
out of the hundreds of retail dealers in the state, or the feasibility of bringing this information
to all other dealers. If securing a contract with one dealer binds all others, then the corollary
would be that, absent such contract, the others are not bound. It is frightful to think a device
so easily concocted could destroy the constitutional bulwark protecting our personal liberties
and the public welfare.
2

In Olin Mathieson Chemical Corp. v. Francis, 134 Colo. 160, 301 P.2d 139, 147, the
Colorado court sitting en banc declared the act unconstitutional on several grounds. With
respect to the exercise of the police power, the court said:
* * * The right to contract is a property right, protected by the due-process clause of the
constitution, Const. art. 2, 25, and cannot be abridged by legislative enactment. The police
power of the state exercisable by the General Assembly, while very broad, is exercisable only
within the limits of the constitution. To sustain the price-fixing power attempted by the
General Assembly in the statute involved, under a claimed exercise of the police power,
would be to place the power of the legislature above the constitution.
In General Electric Company v. A. Dandy Appliance Co., 143 W.Va. 491, 103 S.E.2d 310,
the West Virginia court said: "* * * However, our conclusion that the Act in question is not
a proper exercise of the police power of this state will eliminate any necessity for holding
the Act valid because it may not violate the Federal Constitution.
____________________

2
Even the ancient poets expressed their horror in considering the holding of the dogmatic theologians:
What! from his helpless Creature be repaid
Pure Gold for what he lent him dross-allay'd
Sue for a Debt he never did contract,
And cannot answerOh the sorry trade!
Omar Khayyam, The Rubaiyat, Quatrain LXXIX
* * * However, our conclusion that the Act in question is not a proper exercise of the
police power of this state will eliminate any necessity for holding the Act valid because it
may not violate the Federal Constitution. We are of the opinion that the determination of the
extent and limitations of the police power of this state remains a prerogative of the
sovereignty of this state and any question of constitutionality thereof under the Constitution
of West Virginia is determinable by this Court.
* * * * *
Though it is of great advantage to the plaintiff to have additional protection in the
provision making it unlawful to sell trademark or brand articles below the prices fixed by the
manufacturer, nevertheless the manufacturer or distributor is not deprived of his rights to
make reasonable contracts with others in regard to the price at which such merchandise shall
be sold, and he can protect himself by suits for enforcement or damages. To extend such
manufacturer's or distributor's rights to the public generally is but another improper exercise
of the police power and not in our opinion warranted, and being such is void, as in violation
of [the West Virginia due process clause].
The Supreme Court of Washington in Sears v. Western Thrift Stores of Olympia, 10
Wash.2d 372, 116 P.2d 756, had in 1941 upheld the constitutionality of the nonsigner
provision, with three judges dissenting. However, it re-examined that decision in Remington
Arms Company v. Skaggs, 55 Wash.2d 1, 345 P.2d 1085, in 1959, and quoted with approval
16 C.J.S. Constitutional Law 195, pp. 939-945, as follows:
* * * the limit of a state's exercise of the [police] power is reached when the regulation
transcends public necessity.
* * * * *
In order that a statute may be sustained as an exercise of the police power, * * * the
courts must be able to see that the enactment has for its object the prevention of some offense
or manifest evil or the preservation of the public health, safety, morals, or general welfare,
that there is some clear, real, and substantial connection between the assumed purpose
of the enactment and the actual provisions thereof, and that the latter do in some plain,
appreciable, and appropriate manner tend toward the accomplishment of the object for
which the power is exercised.
of the public health, safety, morals, or general welfare, that there is some clear, real, and
substantial connection between the assumed purpose of the enactment and the actual
provisions thereof, and that the latter do in some plain, appreciable, and appropriate manner
tend toward the accomplishment of the object for which the power is exercised.
* * * The legislature may not exercise the police power for private purposes, or for the
exclusive benefit of particular individuals or classes. * * *
A statutory provision which is not a legitimate police regulation cannot be made such by
being placed in the same act with a police regulation, or by being enacted with a legislative
declaration of a purpose which would be a proper object for the exercise of that power. * * *'
The court then said:
Thus, it is seen that to justify any law upon the theory that it constitutes a reasonable and
proper exercise of police power, it must be reasonably necessary in the interest of the health,
safety, morals, or welfare of the people. This exercise of police power must pass the judicial
test of reasonableness.
* * * * *
Since May, 1951, sixteen state supreme courts have declared acts of this kind
unconstitutional. Generally, the acts were found unconstitutional on the grounds that
legislative power had been unlawfully delegated and that they constituted improper use of the
police power in that they bore no reasonable relation to the health, safety, morals, or general
welfare of the public.
As did the Supreme Court of Washington in reversing its position as to the
constitutionality of the statute, so did the Supreme Court of Pennsylvania overrule its 1955
decision in the case of Burche Co. v. General Electric Co., 382 Pa. 370, 115 A.2d 361,
upholding Pennsylvania's Fair Trade Act in the March, 1964, decision in Olin Mathieson
Chem. Corp. v. White Cross Stores, Inc., 414 Pa. 95, 199 A.2d 266 (rehearing denied in
April, 1964). Burche had relied largely on Old Dearborn Distributing Co. v.
Seagram-Distillers Corp., supra, holding, inter alia, that the Pennsylvania statute was not
an unlawful delegation of legislative power.
Co. v. Seagram-Distillers Corp., supra, holding, inter alia, that the Pennsylvania statute was
not an unlawful delegation of legislative power. In Olin Mathieson the court said: With this,
we do not agree. The basis of Olin Mathieson was unlawful delegation of legislative
authority. There was one dissent by the chief justice on the ground that the doctrine of stare
decisis should prevail. Jones, J., in a dissent of eight lines, thought that the rationale of
Burche was sound and should control.
It was strongly urged in the written briefs and oral argument that the fair-price laws are but
a determination of policy and that therefore the court is not in position to interfere with the
determination of the legislature. The best answer to that is to quote from the opinion of
Harnsberger, J., in Bulova Watch Co. v. Zale Jewelry Co. of Cheyenne, 371 P.2d 409 (Wyo.
1962), in which that court literally kept an accurate score of the 17 states which had held the
acts constitutional and the 20 states holding them unconstitutional, with a list of the states in
which the fair-trade laws had not yet been attacked and the states that were without fair-trade
laws. This was in May, 1962. Mr. Justice Harnsberger said:
The disposition of the judicial branch of government has always been to scrupulously
refrain from encroaching in the slightest way into the legislative field of policy making where
factual or economic factors require latitude of discretion. We will not and we do not
substitute our opinions in such matters for the considered judgment of our lawmakers. Yet,
we ourselves have a function to perform, a constitutional right, and the paramount duty to
insist that the legislature not renounce its legislative power by any such attempt to delegate it
away. We approached the limit of judicial tolerance in upholding legislative fiat in the
so-called trading stamp matter, Steffey v. City of Casper, Wyo., 357 P.2d 456 (1960),
rehearing 358 P.2d 951 (1961). We conceded the legislative right to directly prohibit a sales
practice which that body evidently deemed was inimical to public welfare. What we cannot
approve of here is the attempt to delegate to others the legislative right to prohibit.
Aside from the improper delegation of legislative power are the further questions of the
reasonableness of the law and whether it is an unwarranted invasion of the rights guaranteed
by our Constitution. We have heretofore acknowledged that, notwithstanding, property rights
and the right to make contracts should be free from governmental interference, still these
rights are not absolute. This, of course, means the sovereign may, in proper circumstance,
limit the exercise of these rights. When, however, governmental limitation is attempted by
giving unto private interests the right to prescribe conditions of use, sale and contract
respecting a person's property, such legislation is so grossly unconscionable that courts, as the
final arbiters of its reasonableness, must hold the law an unwarranted invasion of the private
liberty and property guaranteed by the Constitution of this State.
The police power of the legislature is great indeed. Its exercise in the protection and
preservation of the public safety, its health, its morals, and in behalf of its general welfare is
not merely laudable, it is essential. But however great its power, it is nonetheless not beyond
limitation. Even if it be agreed that the philosophy behind the enactment of this law brings it
within the long-range welfare of the public by assisting in the preservation of certain
businesses which can no longer continue to exist without governmental subsidy and the
supposed protection accorded by the Act, still the means adopted to accomplish the purpose
must provide a legal process by which to infringe the liberty or the property of persons
affected. What day in court is given them? To what authority, board, officer, tribunal or court
may such persons make representations in their own interest or behalf before the sale price is
fixed? It would be bad enough if such a price-fixing formula were accomplished through
some public official acting without hearings, but the price-fixing method prescribed by the
Act is without even that vestige of due process.
[Headnote 2]
The foregoing case and many of the cases cited therein are authority for the conclusion that
our only concern is whether the act in question offends the provisions of our own state
constitution.
concern is whether the act in question offends the provisions of our own state constitution.
We are under no compulsion to follow decisions of the United States Supreme Court which
considers such acts in connection with the federal constitution. It must be remembered that
we are considering an act which is claimed to have been enacted in the exercise of the state
police power.
[Headnote 3]
To discuss the opinions in the 20 states that have rejected the Fair Trade Acts would draw
this opinion out to unpardonable lengths. Some of them have declared the acts
unconstitutional in even stronger language, but we think the rationale of these cases has been
sufficiently recited. It is important to note too that such is the holding of most of the recent
cases, so that there is a decided trend to hold such non-signer acts unconstitutional. We are
impelled to accept the rationale of such cases and reject the reasoning of the cases which
declare the acts to be a lawful and reasonable exercise of the police power.
Judgment reversed.
____________
80 Nev. 502, 502 (1964) Nationwide Finance Corp. v. Wolford
NATIONWIDE FINANCE CORPORATION, a Nevada Corporation, Appellant, v. HARRY
T. WOLFORD and BERTHA I. WOLFORD, Respondents.
No. 4767
November 16, 1964 396 P.2d 398
Appeal from the Eighth Judicial District Court, Clark County; Jon R. Collins, Judge.
Plaintiff obtained an uncontested money judgment and under writ of execution issued
thereon levy was made upon wages of one of the judgment debtors. On motion by judgment
debtors, the lower court ordered the judgment creditor to turn over to judgment debtor money
collected by levy on wages, and the judgment creditor appealed. The Supreme Court,
McNamee, J., held, inter alia, that claim of right to exemption of wages from execution
asserted 4S days after levy and 31 days after sheriff had delivered wages levied upon to
judgment creditor had been waived by failure to assert claim within a reasonable time.
appealed. The Supreme Court, McNamee, J., held, inter alia, that claim of right to exemption
of wages from execution asserted 48 days after levy and 31 days after sheriff had delivered
wages levied upon to judgment creditor had been waived by failure to assert claim within a
reasonable time.
Order modified and as modified affirmed.
R. Paul Sorenson, of Las Vegas, for Respondents.
1. Exemptions.
Right of exemption from execution is a personal privilege which, if not claimed, is waived by debtor.
2. Exemptions.
Right to exemption of wages from execution was waived by failure to set up claim of exemption within
reasonable time, where exemption was not claimed until 48 days after levy of execution upon wages and 31
days after wages levied upon were delivered by sheriff to judgment creditor.
3. Exemptions.
Claim of right to exemption of wages from execution asserted 11 days after levy and before sheriff had
delivered wages levied upon to judgment creditor was timely and was not waived.
OPINION
The record herein consists of an agreed statement of facts.
Appellant obtained an uncontested judgment in the court below against respondents in the
sum of $1,654.68 on June 11, 1963. On February 7, 1964 a writ of execution issued which on
February 11, 1964 was served upon the Sahara Hotel where respondent Harry T. Wolford was
employed as a casino dealer. His wages in the sum of $202.98 were levied upon. On February
28, 1964 that sum, having been collected by the sheriff, was delivered to appellant's attorney.
On March 18, 1964 another execution issued and on the next day Harry T. Wolford's wages
in the sum of $277.27 were levied upon. On March 30, 1964 respondents' attorney filed a
motion to release the said sums of $202.9S and $277.27, a copy of which was served April
1, 1964 on appellant's attorney.
30, 1964 respondents' attorney filed a motion to release the said sums of $202.98 and
$277.27, a copy of which was served April 1, 1964 on appellant's attorney. While said motion
was pending, the sheriff on April 17, 1964 delivered to appellant's attorney the $277.27 which
he had received from the Sahara Hotel on April 8, 1964.
The motion for release of the monies was heard on April 20, 1964 and on April 24, 1964
the lower court ordered the appellant to turn over to respondent the sum of $202.98 and the
sum of $277.27 for the reason that the same represented wages exempt from execution.
Appeal is from that order.
[Headnotes 1, 2]
The right of exemption is a personal privilege, which, if not claimed, is waived by the
debtor. Hammersmith v. Avery, 18 Nev. 225, 2 P. 55. The respondent debtor asserted his
wage exemption 48 days after the first levy and 31 days after the wages first levied upon had
been delivered by the sheriff to the appellant creditor. We think that under these
circumstances respondent failed to set up his claim of exemption under the first levy within a
reasonable time, and therefore waived his right to do so.
[Headnote 3]
Respondent asserted his claim of exemption 11 days after the second levy and before the
wages levied upon had been paid over to the appellant. With respect to this claim of
exemption, we believe that it was timely. Cf. Rempe & Son v. Ravens, 68 Ohio St. 113, 67
N.E. 282.
The order is modified to require the sum of $277.27 only to be turned over to respondent.
As so modified, the order is affirmed.
No costs are allowed.
____________
80 Nev. 505, 505 (1964) Hotel Riviera, Inc. v. Short
HOTEL RIVIERA, INC., a Nevada Corporation; MUSICIANS' PROTECTIVE UNION,
Local No. 369, A. F. of M. of Las Vegas, Nevada; LEWIS ELIAS, Appellants, v. BENNY
SHORT, Respondent.
No. 4734
November 24, 1964 396 P.2d 855
Appeal from the Eighth Judicial District Court, Clark County; Taylor H. Wines, Judge.
Suit by released band leader against union, hotel, and hotel house conductor for alleged
conspiracy whereby his musicians allegedly were persuaded to terminate employment with
him and continue at hotel under house conductor in order to deprive leader of services when
he had contracted for other hotel engagements. From a judgment of the lower court denying a
new trial but ordering a remittitur, union and hotel appealed. The Supreme Court, Badt, C. J.,
held that the rule that where act done by an individual is not actionable because justified by
his rights, though harmful to another, the act becomes actionable when done in pursuance of a
combination of persons actuated by malicious motive and not having the same justification as
an individual, is not restricted to boycott cases and that evidence supported finding of
conspiracy and resulting damages.
Affirmed.
[Rehearing denied December 11, 1964]
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, and Foley Brothers, of
Las Vegas, for Appellant Motel Riviera, Inc.
Lester H. Berkson, Harold A. Slane, Sr. and Louis Hersh, of Las Vegas, for Appellant
Musicians' Protective Union.
Brown & Matteucci, of Las Vegas, for Appellant Lewis Elias.
Morton Galane, of Las Vegas, for Respondent.
1. Judges.
Where parties agreed upon certain judge to try the case, right to file statutory affidavit of prejudice was
waived. NRS 1.230.
2. Trial.
Failure to object or to move at once to strike statement patently hearsay was waiver of objection and
denial of motion to strike on cross-examination was not error.
3. Trial.
Counsel's contention in closing argument that circumstances supported his claim that witness was
speaking truth and constant reference to power exerted by union and hotel without evidence to support such
argument was justifiable argument in view of fact that everyone in community was cognizant of the power,
especially in absence of objection in suit for damages resulting from alleged conspiracy between union,
hotel, and hotel house conductor.
Error, if any, in admission of expert testimony as to factors leading to a strip hotel's retaining orchestra
leader in its employment was not prejudicial, where jury's award of compensatory damages apparently
covered time between hotel's termination of conductor's contract and date of jury's verdict in suit by
conductor for damages for alleged conspiracy to oust him.
5. Evidence.
Admission of newspaper and magazine articles and radio broadcasts was proper for limited purpose of
showing publicity given to released band leader suing union, hotel, and hotel house conductor for alleged
conspiracy whereby his musicians were assertedly persuaded to terminate their employment with him and
continue at hotel under house conductor.
6. Conspiracy.
Rule that an act lawful when done by one may become wrongful when done by many acting in concert,
talking on form of conspiracy was applicable in released band leader's suit against union, hotel, and hotel
house conductor for alleged conspiracy whereby his musicians were purportedly persuaded to terminate
their employment with him.
7. Conspiracy.
Evidence supported finding that released band leader suffered loss as result of conspiracy of union, hotel,
and hotel house conductor who purportedly persuaded his musicians to terminate their employment with
him.
8. Conspiracy.
It was not error to assess punitive damages against union and hotel without showing of their financial
worth in suit by released band leader for alleged conspiracy to oust him.
9. Damages.
Jury may make awards against joint tort-feasors for exemplary damages in various amounts, depending
upon different degree of culpability among several tort-feasors.
10. New Trial.
It was proper to grant union, hotel, and hotel house conductor sued by released band leader for damages
resulting from alleged conspiracy to oust him a new trial conditioned on band leader's agreeing to remittitur
of punitive damages.
OPINION
This case is before us for the second time. Heretofore we reversed the lower court, which
had entered summary judgment for the defendants, because we felt that there was some
evidence that defendants were guilty of a conspiracy, and that accordingly the case should
have gone to the jury. Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979. After remittitur
a trial took place and the jury brought in its verdict for Short, awarding him $9,600
compensatory damages against all the defendants. In addition thereto, it awarded $25,000
punitive damages against the Riviera and $25,000 against the Union. The trial court denied a
new trial but ordered a remittitur of $15,000 to the Riviera and $15,000 to the Union. Each of
the defendants has appealed from the judgment.
For the facts of the case, see the opinion in Short v. Hotel Riviera, Inc., supra. We have
examined the transcript and are satisfied that the same facts were proved by Short in the trial
as were proved in the first case resulting in the summary judgment, besides certain other facts
hereinafter mentioned.
1. As noted, the case was tried in the Eighth Judicial District Court, in and for Clark
County. It was assigned by Honorable John Mowbray of that court to Honorable Taylor H.
Wines, of the Fourth Judicial District, for trial. A statutory affidavit of prejudice was filed by
Riviera against Judge Wines. If was later stricken on motion and appellant Riviera assigns
this as error. The record discloses that on June 9, 1963, the parties appeared before Judge
Mowbray to arrive at a trial setting. Mr. John Foley, of Foley Brothers, of Las Vegas,
indicated that both he and Mr. William K. Woodburn, of Woodburn, Forman, Wedge,
Blakey, Folsom and Hug, of Reno, would actively engage in the trial in behalf of Riviera.
Mr. Foley was present in court but no one from the Woodburn firm. "By the Court: Well,
why don't you attempt to contact Mr.
of Reno, would actively engage in the trial in behalf of Riviera. Mr. Foley was present in
court but no one from the Woodburn firm. By the Court: Well, why don't you attempt to
contact Mr. Woodburn, if you can, and I will set this matter down for 4:00 o'clock this
afternoon and, in the meantime, I will call Judge Wines and see if he can hear it on September
30th.
By Mr. Foley: * * * I feel that if we could ascertain any possibility of Judge Wines'
disposition or perhaps into October some time, and where we would be available in October
rather than just one date, we could get several dates from Judge Wines because I think we
have to do a lot of jockeying to get a trial of that kind on the calendar, everybody has to meet
other trial commitments.
By the Court: Well, we will continue this matter until the hour of 4:00 o'clock this
afternoon and at that time we will set it down for a firm setting.
In the afternoon session the following appears:
By the Court: Gentlemen, I have telephoned Judge Wines in Elko. He was on the bench
and he returned the call to me when he was able to do so. He has the week of September 30th
or October 21 open. He can come either time.
By Mr. Foley: Your Honor, I would respectfully request the October 21st date.
By the Court: It will be the order of the Court that the case be set down for trial before a
jury, Honorable Taylor Wines presiding, at the hour of ten o'clock A.M., Monday, October
21, 1963. That will be the final order.
[Headnote 1]
NRS 1.230 provides for the disqualification of a judge upon the filing of an affidavit of
prejudice, in which case the judge shall proceed no further in the action, but transfer the same
to another judge as more particularly provided. The affidavit of prejudice must be filed before
the hearing on any contested matter in the action has commenced, and in any event at least 10
days before the date set for the trial of the action and shall be accompanied by the attorneys'
certificate of good faith and by the payment to the clerk of the court of $25 which shall be
placed to the credit of the district judges' travelling fund.
be placed to the credit of the district judges' travelling fund. The statute omits the former
provision that [i]f the parties agree upon a judge, then such judge shall be selected. Even
with the elimination of such provision, we see no escape from the fact that an attorney may
lose his right to file the statutory affidavit of prejudice (by not filing it in time or by failing to
attach the required certificate of good faith or by failing to pay the required $25 fee), or may
waive his right to file such affidavit (by agreeing to try the case before the judge called in by
the disqualified judge). From the proceedings as above quoted, we are satisfied that counsel
waived the right to file the statutory affidavit.
1
It is clear that the parties agreed upon Judge
Wines to try the case. This fact clearly distinguishes this case from those relied upon by
appellant Riviera, namely, State ex rel. Beach v. Fifth Judicial District Court, 53 Nev. 444, 5
P.2d 535; State ex rel. Stokes v. Second Judicial District Court, 55 Nev. 115, 27 P.2d 534;
State ex rel. Warren v. Sixth Judicial District Court, 57 Nev. 214, 61 P.2d 6; State ex rel.
Kline v. Eighth Judicial District Court, 70 Nev. 172, 264 P.2d 396; State ex rel. Moore v.
Fourth Judicial District Court, 77 Nev. 357, 364 P.2d 1073. Nor is the very apparent waiver
influenced by the decisions of this court in Melahn v. Melahn, 78 Nev. 162, 370 P.2d 213, or
Afriat v. Afriat, 61 Nev. 321, 117 P.2d 83, 119 P.2d 883. The order striking the affidavit of
prejudice, following the waiver implicit in agreement of counsel that Judge Wines might try
the case, was proper. There is no merit to this assignment.
2. Error is assigned in the court's denial of a motion to strike certain testimony as hearsay.
Bronson was stage manager and his duties were to handle the running of the stage, see that
the acts got in on time, the show was there, and was presented properly.
____________________

1
It is unnecessary for us to consider the possibility that after thus waiving the right to file the statutory
affidavit (under which one peremptory challenge of the judge is permissible without stating facts constituting
actual prejudice or bias), the attorney may subsequently discover that the selected judge has actually expressed
prejudice against or a bias in favor of one of the parties, in which case he might seek to disqualify the judge for
actual prejudice or bias.
was there, and was presented properly. Short was asked to state a conversation with Bronson.
Short answered:
I said Milt, Benny Short calling. Could you tell me why I received the notice from the
Riviera Hotel?' He said, I don't know. I think Mr. Goffstein or Atol wanted to make a
change.' I said Well, Milt, can you tell me was it musical or personal?' Mr. Bronson said I
don't know,' he said, I guess it was musical.' I said, Well, who are you going to get, Torris
Brand?' Mr. Bronson said No, they are just going to get another leader.' I said, Where you
going to get the musicians from?' He said, We are going to use your guys.' I said, You can't
do that, Milt,' I said, It is my band.' He said, Well, don't argue with me,' he said, Benny, the
union said it was okay.'
No objection was made. However, on cross-examination, counsel for Riviera exhibited to
Short the list of officers of Hotel Riviera and asked Short if Bronson's name appeared
thereon. Short replied that he was not listed. Thereupon the motion was made to strike the
testimony on the grounds and for the reason that it is objectionable for there is no showing
of the authority of Mr. Bronson to make any statement that is binding on the party defendant
hotel.
[Headnote 2]
The learned trial judge was justified in denying the motion. Counsel for the hotel did not
have to wait till cross-examination to determine that Bronson was not a corporate officer. He
had the list of officers in his hand. He was the attorney for the hotel and was entirely familiar
with the fact that Bronson was not a corporate officer. Even if he were not an officer, he was
an employee whose duties familiarized him with situations involving the employment of the
relief orchestra and the leader of the relief orchestra. He was familiar with the facts that he
stated to Short. The only statement that was hearsay was his statement that the union said it
was okay. That statement was patently hearsay on its face and did not have to wait for
cross-examination to establish that fact. The failure to object or to move at once to strike that
statement was a waiver of objection.
Barra v. Dumais, 76 Nev. 409, 414, 356 P.2d 124, 126, and cases therein cited. We find no
merit in this assignment of error.
Although under Riviera's contract with Short the hotel had a right to terminate the
employment at any time on a specified notice, Riviera attempted to show as the reason for its
cancellation of Short's contract (which cancellation resulted in the employment of Elias as the
leader of Short's relief orchestra upon the resignation of all members of the orchestra from
Short's employment and their accepting employment under Elias, with the Union's approval)
that Riviera sought to make it appear that the dismissal of Short was the result of complaints
by the artists appearing on Riviera's programs. When asked to name the artists who had
complained, the Riviera named Belafonte and Marlene Dietrich, but Belafonte and Dietrich's
secretary absolutely disclaimed any complaint against Short or that they had anything to do
with Short. The jury had a right to infer that Riviera's claim that its artists had complained
about Short was a fictitious charge, without substantiation.
[Headnote 3]
3. Prejudicial error and misconduct are assigned in the argument of respondent's counsel
to the jury. Although no objection was made and counsel was not interrupted during the entire
course of his argument by any assertion that such argument was misconduct and no appeal
was made to the court for an instruction to the jury to disregard any statements made by
counsel, appellants in support of this assignment devoted page after page after page of their
briefs to going through the entire argument with a fine-toothed comb and picking out every
sentence that they think was unjustified or misleading or appealing to the passions and
prejudices of the jury. We have carefully considered each such assignment of misconduct
with care, and do not find that any of such statements constitutes misconduct. Appellants
maintain that counsel in his argument personally vouched for the truth of Short's testimony.
This would under the authorities have indeed constituted misconduct, but we do not so read
his argument.
constituted misconduct, but we do not so read his argument. In our opinion what he was
saying was that the circumstances supported his claim that Short was speaking the truth and
that the officers of the hotel and the Union and Elias were not. This was justifiable argument.
Appellants also complain that he constantly referred to the power exerted by the Union and
the Riviera Hotel without any evidence to support such argument. We are of the opinion that
evidence was unnecessary to support an argument of this kind. We think that every one in the
community, including the members of the jury, were cognizant of such power. They assign as
misconduct such statements as the claim that the defendants had ganged up on Short and
that Short was pushed out. This was a simple clarification of his claim that the defendants
were guilty of a conspiracy. In our opinion it was justifiable argument. These assignments of
misconduct are aimed at many other portions of counsel's argument, and while the argument
was accusative and aggressive in the extreme, we find nothing in it to justify the charge of
misconduct, especially in the absence of objection. We find no merit in this assignment.
4. Appellants assign error in the giving of nine instructions to the jury and in refusing
certain instructions submitted by appellants. The record does not show objections to any
instructions given or refused, and so were waived. Rule 51 NRCP: 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.
[Headnote 4]
5. Error is asserted in the admission of expert testimony as to the factors that lead to a
strip hotel's retaining an orchestra leader in its employment. We need not pass upon this
assignment. If this was error, it was not prejudicial. The amount awarded by the jury of
compensatory damages was $9,680, and the union scale for a relief orchestra leader was $67
for one performance per week. The jury's award apparently covered the time between the
Riviera's termination of Short's contract {March 24, 1961) and the date of the jury's
verdict {November 1, 1963).
the time between the Riviera's termination of Short's contract (March 24, 1961) and the date
of the jury's verdict (November 1, 1963). This figures approximately 138 weeks, which at $67
per week brings the total over $9,000, and within a few hundred dollars of the award of
compensatory damages. It does not appear that the jury based any part of its award on the
expert testimony to the effect that Short could ordinarily look to employment for a period of
five years.
Objections of appellants to evidence offered by respondent on the ground that it was too
remote in point of time were overruled by the court. This was largely a matter of the court's
discretion. We see no error.
[Headnote 5]
Nor do we see any error in the court's admission of certain newspaper and magazine
articles and radio broadcasts offered for the limited purpose of showing the publicity given to
the plaintiff.
[Headnote 6]
6. The point most earnestly argued by appellants is that the rule of law adopted in Short v.
Riviera, Inc., 79 Nev. 94, 378 P.2d 979, in which we overruled a summary judgment in favor
of defendants and remanded the case for trial was bad and should be overruled.
In our opinion in that case we cited the language of the United States Supreme Court as
follows:
An act lawful when done by one may become wrongful when done by many acting in
concert, taking on the form of a conspiracy which may be prohibited if the result be hurtful to
the public or to the individual against whom the concerted action is directed.' * * * [citing
cases]
It is settled that an act lawful in an individual may be the subject of civil conspiracy
when done in concert, provided it is done with a direct intention to injure another, or when,
although done to benefit the conspirators, its natural and necessary consequence is the
prejudice of the public or the oppression of individuals.'
At page 106 id. we recited further:
When an act done by an individual is not actionable because justified by his rights,
though harmful to another, such act becomes actionable when done in pursuance of
combination of persons actuated by malicious motives and not having same justification
as the individual."
80 Nev. 505, 514 (1964)) Hotel Riviera, Inc. v. Short
because justified by his rights, though harmful to another, such act becomes actionable when
done in pursuance of combination of persons actuated by malicious motives and not having
same justification as the individual.
This was followed by citation of a large group of cases, and was followed by the
statement:
Many other cases could be cited. The great weight of authority is in support of the rule
last discussed and we accept the same as the correct one.
Appellants have analyzed the cases thus cited in the former opinion, and contend that
every one of said cases was a boycott case. Appellants contend, then, that not a single citation
in support of the rule recited refers to any situation other than a boycott case, and that the rule
recited in the first opinion is not supported by any case other than a boycott case, and that the
former opinion creates an unwarranted extension of the boycott rule.
Respondent's answer to this argument is that the facts in this case justify analogous
reasoning from the boycott cases, and thereby justify an extension of the rule in the boycott
cases to the present case.
Indeed, the rule of the boycott cases has been extended to other situations. In Clark v.
Sloan, 169 Okl. 347, 37 P.2d 263, the Supreme Court of Oklahoma referred to the rule as
stated in 5 R.C.L. 1092 to the effect that what one may lawfully do singly, two or more may
lawfully agree to do jointly; the number who unite to do the act cannot change its character
from lawful to unlawful, but continued: A more reasonable view of the matter, however, is
that while ordinarily that is the case, yet where the act done by the individual is not actionable
because justified by his rights, though harmful to another, the act becomes actionable when
done in pursuance of a combination of persons actuated by malicious motives and not having
the same justification as the individual. The syllabus by the court recited in part: Where
parties in pursuance of a conspiracy or combination for that purpose fraudulently make use of
legal proceeding to injure another, an action lies against them at the suit of the injured
person to recover damages sustained.
proceeding to injure another, an action lies against them at the suit of the injured person to
recover damages sustained. * * * (citing 12 C.J. 588).
In Clark v. Sloan, supra, the plaintiff had surrendered a grazing lease upon government
land upon the agreement by one of the defendants to convey to him certain parcels of land.
Upon receiving the surrender of the lease, the defendant refused to convey, but conveyed his
own land to other members of his family. The court said: * * * the record does indicate that
Robert H. Clark, by reason of the scheme and general conduct of his business relating to the
tracts of land in question, perpetrated an injury or wrong upon the plaintiff. The jury so found
by its verdict. (Emphasis supplied.)
The sentence last emphasized lends much to what the jury did in the present case. It gains
further importance when we consider that the trial judge denied a new trial (upon remittitur of
three fifths of the punitive damages$15,000 of the $25,000 awarded to appellant Riviera
and the same amount awarded to appellant Union). The learned trial judge, as well as the jury,
had seen and heard the witnesses, and apparently drew the inference, as did the jury, that
Short had been rather shabbily treated.
Clark v. Sloan, supra, as well as the Ruling Case Law and Corpus Juris texts therein
referred to, were cited in our first opinion.
Appellants also rely on Days v. Florida East Coast Railway Company, 165 So.2d 434 (Fla.
1964), an action by discharged railroad employees against the railway company and its
director of personnel who allegedly had feloniously conspired to deprive plaintiffs of their
rights under agreement with their labor union. The main holding of the case, as we read it, is:
If the defendant, railroad, breached its contract to employ the plaintiffs, this breach of
contract may not be converted into a tort by an allegation that it was maliciously done. Here
the malice charged is not only against the employer, Riviera, but against plaintiff's Union and
against Elias, all acting in concert, to the end that Elias, with Short's relief orchestra, might
serve the requirements of the Riviera.
orchestra, might serve the requirements of the Riviera. Under the authorities herein cited and
cited in our former opinion, this brings all of the defendants within the rule for actionable
conspiracy and for the damages resulting therefrom.
Appellants also rely on Bliss v. Southern Pacific Company, 212 Or. 634, 321 P.2d 324. It
is true that this case held that Southern Pacific was not liable to a charge that it had
maliciously canceled Bliss' lease in conspiracy with Trask Lumber Company, to which
Southern Pacific gave a new lease, because under the terms of the original lease Southern
Pacific had an absolute and unqualified right to cancel it at any time on 30 days' notice. The
conspiracy alleged in the complaint was that Trask Lumber Company had willfully, falsely,
wickedly, fraudulently, and maliciously represented to Southern Pacific that plaintiff had
violated the terms of his lease, but it appeared from the pleading that Southern Pacific
Company placed no reliance on the representations made by Trask, and, said the court, This
being so, the acts of the Trask Lumber Company were not the proximate cause of such
damage as plaintiff claims to have sustained. We find nothing in the record before us to
warrant holding that plaintiff has sufficiently pleaded any right of action against the defendant
Trask Lumber Company. Even if we assume that the case supports the rule which we
rejected in our first opinion, we do not think it in point. Here the Union permitted Elias to
pirate Short's orchestra, and the Riviera (on the asserted but false ground that its star
performers had complained of Short's performance) employed conductor Elias (who had
previously stated that he was going to resign from his official position with the Union
because he had a chance to enter the relief orchestra field), utilizing Short's musicians. These
are facts which the jury was entitled to, and apparently did, believe.
The Oregon court in Bliss, citing authorities, recognized the following rule: The law not
only prohibits an unjustifiable interference by a third party with contract rights of any party to
an agreement, but also prohibits the malicious interference with their prospective rights.
Riviera, after signing and dating its termination notice to Short, withheld the letter for a
number of days until, following a meeting of Short's orchestra members with Elias, Riviera
had been advised that Short's musicians would go with Elias with the approval of the Union.
The facts in the Bliss case fall far short of the facts in the instant case.
Respondent further contends that the prior ruling was not so clearly and palpably
erroneous' and the alleged error was not so unjust' as to justify this court to reverse the ruling
in that decision. In support of the latter contention he cites Nevada-California Transp. Co. v.
Public Service Comm'n, 60 Nev. 310, 103 P.2d 43, 108 P.2d 850, 852, and also refers to
Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617, 620, and Jensen v. Reno Central Trades and
Labor Council, 68 Nev. 269, 229 P.2d 908, 914. In the last-named case Merrill, Justice,
speaking for the unanimous court, which was confronted with the question whether the
decision in a former case should be upheld, weighs the proposition of possible error in the
former case as balanced against the doctrine of stare decisis, and concludes:
Under the circumstances, these considerations overwhelm any fear we may hold of earlier
error or its consequences. The balance falls in favor of stare decisis. The decision in the
White Cross Drug case will not here be reconsidered and remains controlling in this matter.
This weight falls even more heavily in the present case, for our ruling in the previous case
(Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979) became the law of this case. When
the case was tried on the remand, counsel for the plaintiff quite obviously tried his case on the
strength of our former opinion, and the trial court's instructions to the jury clearly show that
they were made in view of that opinion.
We may note, too, not only that the rule of the boycott cases has already been extended
to other situations (Clark v. Sloan, supra, and see also Wise v. Southern Pacific Company, 35
Cal.Rptr. 652), but that it is significant that the rule expressed where the act done by the
individual is not actionable because justified by his rights, though harmful to another, the
act becomes actionable when done in pursuance of a combination of persons actuated by
malicious motives and not having the same justification as an individual" was not in any
of the cases, where the rule is so cited, restricted to boycott cases.
his rights, though harmful to another, the act becomes actionable when done in pursuance of a
combination of persons actuated by malicious motives and not having the same justification
as an individual was not in any of the cases, where the rule is so cited, restricted to boycott
cases.
When we view the point raised in connection with the facts in this case, and in the light of
the jury's verdict and the court's denial of the motion for new trial (except in his remittitur of
three fifths of the punitive damages assessed by the jury), and in the light of our conclusion
that there was ample evidence from which the jury could have drawn the inference, and
obviously did, that the three defendants had conspired to the end that Elias might pirate
Short's relief orchestra, and that Short was damaged thereby, we must reject this assignment
of error.
[Headnote 7]
7. Appellants contend that the record contains no basis for compensatory damage and
hence no basis for punitive damage. As to compensatory damage, we refer to what has been
said above concerning Short's loss of compensation for services to the Riviera for the period
commencing with the date of his discharge, up to the time of the jury verdict, a period of 138
weeks with the loss of $67 per week. We refer again to the facts stated herein and stated in
our former opinion, and to our conclusion that the jury was at liberty to draw inferences from
these facts to the effect that Short had suffered this loss as a result of the conspiracy of the
three defendants.
[Headnote 8]
8. Appellants also contend that it was error to assess punitive damages without a showing
of the financial worth of the defendants against whom they were assessed. Such is not the
holding in Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824, upon which appellants rely. For
this assignment appellants rely upon Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613.
Dunaway v. Troutt was a libel case, and plaintiff introduced evidence as to the financial
standing of only one of three defendants.
was a libel case, and plaintiff introduced evidence as to the financial standing of only one of
three defendants. The Arkansas court held to the rule (which it called the majority rule)
adopted in Washington Gas-Light Co. v. Lansden, 172 U.S. 534, 19 S.Ct. 296, 303, 43 L.Ed.
543, as follows: While all defendants joined are liable for compensatory damages, there is
no justice in allowing the recovery of punitive damages, in an action against several
defendants, based upon evidence of the wealth and ability to pay such damages on the part of
one of the defendants only.' The Arkansas court also quoted with approval MaAllister v.
Kimberly-Clark Co., 169 Wis. 473, 173 N.W. 216, as follows: * * * but when, for the
purpose of enhancing what may be given by the jury for punitory damages, evidence is
offered as to the financial ability of the one, it cannot but affect the amount of punitory
damages to be recovered against the others, for these also must be assessed against all or
none.' (Emphasis supplied.) The minority view is also discussed to the effect that under the
majority view a wealthy defendant, who is principally implicated in a wrong of this character,
might escape the payment of just and reasonable damages, by having others, without
character or property, associated in the unlawful act. The only holding necessary to the
determination of Dunaway, on the point involved, was that underscored by us. As to the
further statement in the majority opinion that the right to recover punitive damages is waived
when two or more parties are made defendants in a case where punitive damages may be
assessable, such holding (as noted in the concurring opinion) was not necessary, as, under
numerous authorities cited, separate judgments may in the same case be rendered against
separate defendants; and while such judgments for punitive damages may be prosecuted in
separate suits against separate persons, a multiplicity of suits would be avoided by trying
them all in one action. This does seem more logical. Annot., 63 A.L.R. 1405.
In Hanley v. Lund (1963), 218 Cal.App.2d 633, 32 Cal.Rptr. 733, 740, the court said:
Finally, defendant argues that plaintiff was required to show defendant's wealth in
seeking exemplary damages.
argues that plaintiff was required to show defendant's wealth in seeking exemplary damages.
However, defendant has cited no authority, and our research has uncovered none, directly in
support of this position. The one case strongly relied on by defendant as inferentially
supporting his position is Dunaway v. Troutt (1960), 232 Ark. 615, 339 S.W.2d 613. We do
not believe this decision in any way supports defendant's position. All this case holds is that,
where there are two or more defendants, and the wealth of less than all are introduced into
evidence, it is error to have punitive damages assessed against all defendants. The reason for
this rule is that the court has no way of equitably dividing the judgment for punitive damages
among the defendants.
We accept the view of the California court that it is not essential to show defendant's
wealth in seeking exemplary damages.
It is asserted by appellants that the court committed error in submitting a form of verdict
which permitted the jury to assess varying amounts of punitive damages as against the Union
and Riviera and not as against Elias. This was in accordance with the court's instruction
which advised the jury that punitive damages were sought as against the Union and Riviera
but not as against Elias. The court further instructed the jury that the claims and allegations of
the complaint were merely claims and not evidence, and must not be considered by the jury as
evidence in the event it should undertake to determine the amount of plaintiff's damage. No
objection was made to this instruction and the objection, under Rule 51 NRCP, was waived.
[Headnote 9]
The proper rule, as stated in Annot., 62 A.L.R. 239, 240, appears to be:
* * * that the jury, in an action against joint tort-feasors, may make awards for exemplary
damages in different amounts, depending upon what the evidence shows and the jury finds to
be the differing degree of culpability among the several defendants, seems to be in accord
with the majority of the cases which have passed on this point.
In Thompson v. Catalina, 205 Cal. 402, 405, 271 P. 198, 200, 62 A.L.R. 235, the court
said: * * * juries should be allowed so to admeasure and apportion such exemplary damages
as to make the example as well as the punishment fit the offense. Other authorities are cited
by the parties on this point but we forego further discussion of it. We find no merit in the
error assigned.
[Headnote 10]
9. Appellants assign error in the court's holding that a new trial would be granted unless
respondent should agree to a remittitur of the punitive damages in the amount of $30,000.
This court has in many instances approved such conditional order on motion for new trial.
Brownfield v. Woolworth Co., on petition for rehearing, 69 Nev. 297, 251 P.2d 589 (1952);
rule acknowledged but not applied in Van Fleet v. O'Neil, 44 Nev. 216, 192 P. 384 (1920);
see also 39 Am.Jur., New Trial 213, at 205, 206; 20 R.C.L. 315.
Our brother Thompson, conceding that the rule followed by us is sometimes reached in
cases involving boycotts, lockouts, blacklists and the like fears the consequences of
establishing such rule in other fact situations. But the fact situation here is the very definition
of a boycott or walkout as against Short. The Riviera's notice of termination, dated
February 22, was mailed to Short on February 28 and received by Short on March 1. On that
date he received the termination notice from his entire orchestra, and on the same day Short
was notified by the stage manager of the hotel that his entire orchestra was staying,
2
under
Elias, and that the Union said it was okay. This situation fits the rule that: When an act done
by an individual is not actionable because justified by his rights, though harmful to another,
such act becomes actionable when done in pursuance of a combination of persons actuated by
malicious motives and not having the same justification as the individual. When the Riviera
and the Union stepped into the act, in the manner herein described, their actions, as well as
those of Elias, became actionable as a tort.
____________________

2
It is true that some of Short's orchestra members who left Short and went with Elias subsequently terminated
their employment under Elias, but their original walkout was unanimous.
their actions, as well as those of Elias, became actionable as a tort.
Other matters are discussed in the briefs, all of which have been considered, but which do
not require further discussion in this opinion.
The judgment and order denying new trial are affirmed with costs.
This case was here before. Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979. I did not
participate in that opinion. Had I participated I would have voted to sustain the summary
judgment which the district court had entered for defendants Hotel Riviera, Inc., Musicians'
Protective Union, and Lewis Elias. It is my view of the law that Short did not then have a
claim for relief, nor does he now have one. The trial of the case did not improve his legal
position.
The trial record is extensive, but the controlling facts are few. Short conducted a relief
band in Las Vegas, Nevada for the Mint Casino, the Thunderbird Hotel, the Sahara Hotel and
the Riviera Hotel, on nights of the week when the orchestras regularly employed at those
establishments were off duty. Short's contract with the Riviera as the relief band conductor
was terminable at the will of either party. The musicians who worked for Short could quit at
will. Riviera terminated Short's contract and hired Elias. It had a legal right to do so. Some of
the musicians who worked for Short quit him and went to work for Elias. They were free to
do so. Elias was surely entitled to solicit the Riviera job. The record does not disclose any
effort by the Riviera or the Union to affect Short's contractual relationships with the Mint, the
Thunderbird, or the Sahara, nor was his relationship with any of them affected. Short
continued to conduct a relief band for those establishments after losing the Riviera job.
Short's charge against the defendants is that, in combination, they conspired to cause
him damage. The nature of the conspiracy was to pirate his relief band and use it under a
new conductor at the Riviera. The sequence of events, when viewed in a light most favorable
to Short, may perhaps support an inference that the defendants (Riviera, Union and Elias)
were so motivated. Yet, in my view, their conduct, singly or in concert, does not impose a
liability to Short.
The power to terminate an employment contract at will does not give rise to a claim for
damages in the employee upon discharge. A breach of contract does not occur when the
power to terminate is exercised. Short was fully paid for the services he had actually
performed for the Riviera. Upon termination, further performance by both parties alike was
stopped, and without any legal damage to either. Precisely the same is true as to the
relationship between Short and his musicians. Thus, Short's claim for damages does not, and
cannot, rest upon a breach of contract, for there was no breach. A fortiori, there is no claim
upon a theory that the Union and Elias induced Riviera or the musicians to breach an
agreement with Short. His sole claim is bottomed upon one wordconspiracyand its
unwholesome connotation. However, the charge means nothing in the context of this case.
A conspiracy is not actionable unless the alleged combination results in the perpetration of
an unlawful act or some injurious act by unlawful means. Bliss v. Southern Pacific Company,
212 Or. 634, 321 P.2d 324; 11 Cal.Jur.2d 274. By definition, the alleged conspiracy is not
actionable here. The combination, if it existed at all, did not perpetrate an unlawful act, nor
were unlawful methods employed to bring about Short's discharge. What one may lawfully
do, many may lawfully do in combination. This general principle was recognized in Carlton
v. Manuel, 64 Nev. 570, 187 P.2d 558, though in a different factual framework. Bliss v.
Southern Pacific Company, supra, is squarely in point.
supra, is squarely in point. There the plaintiff lumber company contended that the defendant
railroad and its codefendant, another lumber company, conspired to cause the railroad to
terminate the plaintiff's lease of railroad land which the plaintiff used for a loading dock, and
then leased that land to the codefendant for the same use. The railroad had the right to
terminate the lease upon giving 30 days' notice. It did so. The plaintiff's claim for relief was
dismissed summarily before a trial. The Oregon Supreme Court affirmed, carefully pointing
out that if the offending action charged was the termination of the lease, there could be no tort
to support the alleged conspiracy because the act of the railroad was the result of the exercise
of an absolute contractual right. The court quoted Prosser on Torts: * * * No case has been
found in which intended but purely incidental interference resulting from the pursuit of the
defendant's own ends by proper means has been held to be actionable. The mere addition of
the word conspired or conspiracy does not enhance the legal position of Short in the case
at bar. May v. Santa Fe Trail Transportation Company, 189 Kan. 419, 370 P.2d 390; Bliss v.
Southern Pacific Company, supra. Nor is reason, motive, intent or purpose a relevant inquiry,
for Riviera and the other defendants had the right to do what they did. As the alleged
conspiracy was to do that which they had the legal right to do, it was not to accomplish an
unlawful purpose, nor were unlawful means used. Pearson v. Youngstown Sheet and Tube
Company, 7 Cir., 332 F.2d 439.
The rule of law announced in the prior opinion, Short v. Hotel Riviera, Inc., 79 Nev. 94, at
106, 378 P.2d 979, at 986 is: When an act done by an individual is not actionable because
justified by his rights, though harmful to another, such act becomes actionable when done in
pursuance of combination of persons actuated by malicious motives and not having same
justification as the individual. It is, of course, true that there may be a point of combination
beyond which the acts of each, otherwise lawful, become unlawful.
otherwise lawful, become unlawful. That point is sometimes reached in cases involving
boycotts, lockouts, blacklists and the like. Prosser on Torts, 2d Ed., p. 731. Every case cited
by this court in the first opinion to support the quoted rule of law is a case involving that kind
of a situation. None of those factors are present in the instant matter. There is no underlying
social policy involved here. The rule of law announced in the first opinion, and followed
again here, was never intended to have application to this kind of a case. It is erroneously
applied, and I worry about its implications. The majority opinion means that an employer is in
peril if he discharges a union employee serving at will and, before discharging him, arranges
with the union for a replacement. There are many union shops in Nevada. It is common
practice to arrange in advance for the replacement of an employee about to be fired in order
that one's business may continue smoothly and without interruption. A similar peril is
imposed upon the union. It must not inform the employer that, upon the discharge of one of
its members, another will be available as a replacement. Nor is the union member seeking
employment free to solicit the job or the needed personnel to undertake it. When these events
happen, sinister and malicious motives may be imputed to each alike and damages, both
compensatory and punitive, authorized. The illusory civil conspiracy may be found by the
trier of facts. That each defendant acted lawfully is of no significance. The discharged
employee may be enriched nonetheless. Apparently, in these circumstances, our law will now
permit money to be transferred from the so-called civil conspirators to the former
employee. I cannot believe that this pronouncement is truly the law. Yet, it is the plain
meaning of the holding of today's case.
My brothers apparently find some comfort in the law of the case doctrine. I do not. Nor
would my view be different had I participated in the first opinion. The divergent views
regarding that doctrine are fully explored in the annotation, 87 A.L.R.2d 271 and need not be
restated here.
be restated here. That doctrine should never be invoked to require the perpetuation of error. A
court need not be ashamed to acknowledge its mistake and correct it before damage results.
Though embarrassing, it is the only honorable course. I dissent.
____________
80 Nev. 526, 526 (1964) Sinkey v. Board of County Commissioners of Mineral County
JOHN SINKEY, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF MINERAL, STATE OF NEVADA, Respondent.
No. 4772
November 24, 1964 396 P.2d 737
Appeal from the Fifth Judicial District Court, Mineral County; Peter Breen, Judge.
Action for declaratory judgment adjudicating rights and duties of the parties with respect
to a pipeline. The trial court held that no legal duty was owed by the pipeline owner to
maintain the pipeline, but denied the owner any money judgment for past maintenance costs.
From that part of the judgment adjudicating that the pipeline owner had no obligation to
maintain it, the pipeline user appealed. The Supreme Court, McNamee, J., held that the right
of the pipeline user to withdraw water from the pipeline was a property right in the nature of
or analogous to an easement, and the pipeline owner owed no duty to the user to maintain the
pipeline.
Affirmed.
[Rehearing denied December 18, 1964]
Ernest S. Brown, of Reno, for Appellant.
Leonard E. Blaisdell, District Attorney, Mineral County, for Respondent.
1. Easements.
Where easement is used and enjoyed for benefit of dominant estate alone, owner of servient estate is
under no obligation to make repairs, and he who uses easement must keep it in proper condition.
Right of pipeline user to withdraw water from pipeline under deed granting such right, was property right
in nature of or analogous to easement, and pipeline owner owed no duty to user to maintain pipeline.
That pipeline owner maintained pipeline at its own expense for several years did not create duty on it to
continue so to do for benefit of pipeline user.
OPINION
This is an action for a declaratory judgment which would adjudicate the rights and duties
of the respondent (plaintiff) and the appellant (defendant) with respect to 3 1/2 miles of
pipeline, which respondent county has been maintaining without charge to anyone. The
complaint also asks for a money judgment against appellant on a quantum meruit basis for
past maintenance services. After an answer was filed respondent made a motion for summary
judgment.
The court determined that there was no legal duty owed by respondent to maintain the
pipeline and denied respondent any money judgment for past maintenance costs. Appeal is
from that part of the judgment which adjudicates that respondent has no obligation to
maintain the pipeline.
The matter was submitted to the trial court upon agreed facts.
It is conceded that the determination of the rights of the parties must be based upon the
construction of the provisions of a deed from Miocene Mines and Development Company to
Nevada Massachusetts Company, Inc., dated March 20, 1931.
In 1931 Miocene Mines owned Spearmint Springs and a four-inch pipeline leading 3 1/2
miles therefrom to Sodaville. At this time Nevada Massachusetts Company had a mining
operation at Sodaville and bought from Miocene the spring, the waters thereof, the pipeline,
and a ten-foot easement over lands retained by Miocene upon which the pipeline was laid.
The sale was consummated by said deed of March 20, 1931.
by said deed of March 20, 1931. This deed of conveyance contains certain reservations and
exceptions. Mineral County is the successor in interest of Nevada Massachusetts Company.
Because the town of Mina, near Sodaville, needed more water, the pipeline was taken up and
relaid from Spearmint Springs to the water mains of Mina, and the four-inch pipeline was
replaced with a 1 1/2 inch pipeline. It is with this pipeline that we are here concerned.
Thereafter, appellant by quitclaim deed succeeded to whatever rights Miocene had in the
spring and the 3 1/2 miles of pipeline as evidenced by the deed of March 20, 1931 and the
reservations and exceptions therein. Appellant evidently is the only user of the 1 1/2 inch
pipeline.
The deed of March 20, 1931 provides in part as follows:
That, in consideration of the sum of one thousand two hundred and fifty ($1,250.00)
Dollars, the receipt whereof is hereby acknowledged, and the further consideration, which is
hereby declared equally valuable, of the grantor being permitted to tap that certain pipeline
hereinafter described, at a point on the land now owned by the grantor and not conveyed
hereby, or any replacement of said pipeline which must cross said land of the grantor not
conveyed hereby, and to withdraw therefrom the quantity of one gallon of water per minute
which is hereinafter reserved by said grantor, for so long a time as the grantee, its successors
or assigns, shall have the right to use or does use the water herein conveyed.
* * * * *
EXCEPTING THEREFROM and reserving to the grantor the right to take the quantity of
one gallon of water per minute of the waters of said spring, as hereinbefore mentioned, when
necessary for its use.
It is in this deed that the 3 1/2 miles of pipeline is conveyed to the predecessor in interest
of respondent, together with the water rights and the ten-foot easement or right-of-way over
land belonging to Miocene. Miocene, as grantor, reserved the right to tap the pipeline at a
point on its land over which the easement crossed in order to withdraw from the pipeline
one gallon of water per minute.
order to withdraw from the pipeline one gallon of water per minute.
It is conceded by appellant that the deed of March 20, 1931 neither expressly nor impliedly
provides that the grantee therein agreed to maintain the pipeline for Miocene or its successor.
Appellant further concedes that the deed is not ambiguous. Nevertheless, appellant maintains
that because of the additional consideration contained in said deed, Nevada Massachusetts
and its successor, the respondent, were obligated to maintain the pipeline.
[Headnotes 1-3]
We are concerned here with the pipeline belonging to respondent and the burden thereon
resulting from said deed of March 20, 1931 which makes the pipeline servient to the
dominant right of appellant to withdraw therefrom the quantity of one gallon of water per
minute.
1
This burden on the pipeline is a property right of appellant and is in the nature of or
at least analogous to an easement. Therefore, the following authorities pertaining to
easements are applicable to the situation with which we are faced.
As a general rule the owner of a servient estate is not bound, unless by virtue of an
express stipulation, to keep the easement in repair, or to be to any expense to maintain it. 2
Thompson on Real Property 675, at 341 (Perm.Ed. 1941); see also 2 Thompson on Real
Property 489, at 711 (1961 Replacement Edition).
Where an easement is used and enjoyed for the benefit of the dominant estate alone, the
owner of the servient estate is under no obligation to make repairs, the rule being that he who
uses the easement must keep it in proper condition * * *. 28 C.J.S., Easements 94.
If the language of a conveyance creating an easement is so indefinite as not clearly to
provide for a duty to repair, the inference to be drawn is that such duty as exists is upon the
owner of the easement. Despite the fact that nongratuitous conveyances of easements are
construed favorably to the conveyee, it is not assumed, even in the case of such
conveyances, that a conveyor agrees to maintain or repair the premises subject to the
easement for the purpose of enabling the conveyee to enjoy the uses authorized by it.
____________________

1
The servient and dominant estates resulting from the conveyance of the ten-foot easement over the lands
owned by Miocene and its successor, Sinkey, are to be distinguished.
construed favorably to the conveyee, it is not assumed, even in the case of such conveyances,
that a conveyor agrees to maintain or repair the premises subject to the easement for the
purpose of enabling the conveyee to enjoy the uses authorized by it. If any such duty exists, it
is assumed to be on the owner of the easement. Restatement, Servitudes 485.
We conclude that the lower court properly determined that respondent owed appellant no
duty to maintain the pipeline.
The mere fact that respondent for several years did maintain the pipeline at its own
expense did not create a duty upon it to continue so to do. Cf. Moffett v. Berlin Water Co., 81
N.H. 79, 121 A. 22.
Affirmed.
____________
80 Nev. 530, 530 (1964) County of Clark v. Roosevelt Title Ins. Co.
THE COUNTY OF CLARK, a Political Subdivision of the State of Nevada, and W. W.
GALLOWAY, Treasurer of Clark County, Nevada, Appellants, v. ROOSEVELT TITLE
INSURANCE COMPANY, LTD., a Nevada Corporation, Respondent.
No. 4718
November 30, 1964 396 P.2d 844
Action by owner to enforce right of redemption in property still held by county 28 years
after tax foreclosure sale. The lower court rendered summary judgment for owner and ordered
county to accept redemption costs and to reconvey, and county appealed. The Supreme Court,
Badt, C. J., held that 1957 statute changing redemption rights to extend until county had made
public sale of property, did not apply retroactively to redemption rights that had vanished by
passage of time fixed by statute of limitations.
Reversed.
Edward G. Marshall, District Attorney, and John A. Porter, Deputy District Attorney
Clark County, for Appellants.
Kelly & Stone, of Las Vegas, for Respondent.
1. Taxation.
Owner who lost property in tax foreclosure sale in 1935 and did not exercise right of redemption within
statutory time could not redeem under 1957 statutory amendment extending time in which right of
redemption could be exercised until county had made public sale of property, even though county still held
property. NRS 361.570, 361.585, subds. 1, 3, 361.600.
2. Taxation.
Amendment to right of redemption statute extending period of right of redemption until county had
disposed of property by public sale did not have retroactive effect. NRS 361.585, subd. 3.
3. Taxation.
Consideration contemplated by statute authorizing sale of property acquired by county for nonpayment of
taxes is the full value of the property. NRS 361.595.
4. Taxation.
Requirement that property acquired by county for nonpayment of taxes be sold at public sale only upon
statutory notice is for purpose of obtaining full value and preventing favoritism and fraud and of obtaining
highest bid. NRS 361.595.
5. Taxation.
Since sale of county owned property may be made only upon order of county commissioners, such board
may in its discretion not order property acquired by county for nonpayment of taxes sold unless and until
such action seems proper. NRS 361.595.
OPINION
This is an appeal from a summary judgment in favor of Roosevelt Title Insurance
Company, Ltd., a Nevada corporation, upon its complaint entitled Complaint to Enforce
Right of Redemption, in which it seeks an order to the defendant county treasurer
commanding and requiring him to accept and receive the said redemption monies * * * for
the redemption of the property described therein and to issue onto Petitioner a Deed of
Reconveyance pursuant to law for said parcel of property."
of property. In effect this is a petition for a writ of mandamus. On the plaintiff's motion for a
summary judgment, the court ordered: [T]hat Plaintiff have judgment against the
Defendant-Treasurer and that the Defendant-Treasurer is hereby ordered and directed to this
day accept from Plaintiff the redemption costs heretofore tendered to him in the sum of
$1,540.83 and to simultaneously execute and deliver unto said Plaintiff, or its Attorney, a
Deed of Reconveyance, reconveying all of that real property heretofore taken by the County
of Clark for taxes, as set forth in Plaintiff's Complaint, located within the E 1/2 of the SW 1/4
Section 34 Township 19 S, Range 62 E, M.D.B. & M.; and particularly described as follows:
* * *. There follows a description by lot and block number of some 546 lots in North Las
Vegas Heights.
The County of Clark and W. W. Galloway, treasurer of Clark County, appealed. We
heretofore denied a motion to dismiss the appeal from the judgment. County of Clark v.
Roosevelt Title Insurance Company, Ltd., 80 Nev. 303, 393 P.2d 136.
Prior to 1932 the real property in question was assessed to Roosevelt Title Insurance
Company, Ltd., a corporation. On September 11, 1933, a tax certificate was made by one
Moody, then the tax collector of Clark County, Nevada, pursuant to NRS 361.570 pertaining
to the said real property, and on said date Moody made a tax deed pursuant to NRS
361.585(1) conveying the property to Moody as trustee for Clark County. In 1935 upon the
issuance of such tax deed the title vested absolutely in Clark County and no suit for the
reconveyance of said property would lie unless brought within three years from the date of the
tax deed. NRS 361.600; Pender v. Clark County, infra. No suit was brought until the present
action was commenced on May 23, 1963, 28 years after the tax deed and 25 years after the
expiration of the limitation prescribed by NRS 361.600.
In 1957 the legislature enacted NRS 361.585(3), reading as follows: Anything in NRS
361.595 to the contrary notwithstanding, at any time prior to the public notice of sale by a
county treasurer, pursuant to NRS 361.595, of any property held in trust by him by virtue
of any deed made pursuant to the provisions of this chapter, any person who was the
owner, beneficiary under a deed of trust or mortgagee under a mortgage of such
property, or to whom such property was assessed, prior to being so conveyed to the
county treasurer, shall have the right to have such property reconveyed to him upon
tendering to the county treasurer the amount of the taxes, costs, penalties and interest
legally chargeable against such property, as set forth in subsection 4 of NRS 361.570,
together with interest at the rate of 10 percent per annum until the time of
reconveyance."
notice of sale by a county treasurer, pursuant to NRS 361.595, of any property held in trust by
him by virtue of any deed made pursuant to the provisions of this chapter, any person who
was the owner, beneficiary under a deed of trust or mortgagee under a mortgage of such
property, or to whom such property was assessed, prior to being so conveyed to the county
treasurer, shall have the right to have such property reconveyed to him upon tendering to the
county treasurer the amount of the taxes, costs, penalties and interest legally chargeable
against such property, as set forth in subsection 4 of NRS 361.570, together with interest at
the rate of 10 percent per annum until the time of reconveyance.
NRS 361.595 (referred to in the opening clause of 361.585(3) above quoted) contains eight
subdivisions and provides in general how sales may be made by the county treasurer on order
of the board of county commissioners, the notice that must be given thereof and what kind of
a record must be kept.
Prior to the 1957 statute, NRS 361.585(3), this court had before it the case of Pender v.
Clark County, 71 Nev. 47, 279 P.2d 659. We there held that the failure of an owner to
exercise his right of redemption after a tax foreclosure sale within the statutory time of two
years precluded the owner from attacking the title of the county, even where the tax deed was
prematurely issued. We there stated that the equitable right which the owner had during the
redemption period vanished by operation of law upon the expiration thereof, and that likewise
by operation of law the legal title vested immediately in the County. In accord are DeBaca v.
Perea, 52 N.M. 418, 200 P.2d 715; Margaritell v. Caldwell Township, 58 N.J.Super. 251, 156
A.2d 46; Ritzinger v. Commissioners of Delaware County, 202 Pa. Super. 110, 195 A.2d
154; Resweber v. Jacob, 125 So.2d 241; Jonke v. Rubin, 170 Ohio St. 41, 162 N.E.2d 116.
It will be seen that after the vesting of the title in Clark County in 1935, 28 years elapsed
before the challenge of the present suit was made.
It is respondent's contention that NRS 361.585 (3), quoted in full above, is retroactive and
applies to the title of land already vested in a county after deed has passed following
expiration of the period of redemption. Respondent asserts that this is evident from the
provision of 361.585(3) to the effect that any person who was the owner of the property prior
to its being so conveyed to the county treasurer shall have the right to have the property
reconveyed to him upon tender of the amount of the taxes, costs, penalty, and interest legally
chargeable against such property at any time prior to the public notice of sale by a county
treasurer pursuant to NRS 361.595.
It is admitted that there had been no prior sale or notice of sale of this property.
[Headnotes 1, 2]
The question presented, then, is whether the 1957 statute, NRS 361.585(3), was
prospective only and related only to property which had not vested in the county prior to its
enactment, or whether, as claimed by respondent, and apparently found by the court below,
was retroactive and applied to all property whose title had vested in the county at any time in
its history, and which had not been theretofore sold.
82 C.J.S., Statutes 416, at 992, in speaking of remedial statutes states: The general rule
that statutes are to be construed as prospective only, unless the language employed
conclusively negatives that construction, applies to remedial statutes, and such statutes will
not be given retrospective or retroactive effect if to do so would impair or destroy contracts,
disturb vested rights, or create new obligations.
82 C.J.S., Statutes 416, at 992 and 993 goes on to say: Such statutes will not be given
retrospective operation if to do so would impair contract obligations or disturb vested rights,
unless the language of the statute indicates that such is the legislative intent.
Supported by a great deal of authority, 82 C.J.S., Statutes 417, at 994 and 995 states:
Retroactive legislation changing rights is not favored, and the rule that statutes are not to be
construed retrospectively unless such construction was plainly intended by the legislature
applies with peculiar force.
unless such construction was plainly intended by the legislature applies with peculiar force.
Hence, in so far as affecting vested rights, a statute will be construed as prospective only, and
not as operating retrospectively or retroactively, unless that intention is made manifest either
by express words or by a clear, distinct, necessary, plain, strong, or unmistakable,
implication. This court has heretofore ruled in accordance with the foregoing
well-recognized rules. Wildes v. State, 43 Nev. 388, 187 P. 1002 (1920).
It cannot be seriously questioned, in view of Pender v. Clark County, supra, that to give
the 1957 amendment retroactive effect would impair and disturb the vested title and the
absolute right of the County to such title and possession of the land; nor can it be seriously
questioned that, if given such retroactive effect it would create not only in this respondent but
in all persons in the past history of the state whose rights to redeem land had vanished with
the expiration of the period of redemption, new rights of redemption. Nor is it possible to
point out in the 1957 amendment any language that conclusively negatives the rule and
presumption that statutes are to be construed as prospective only. Certainly nothing in the
1957 amendment contains any express words or any clear, distinct, necessary, plain, or
unmistakable implication that a retroactive effect was intended. Both from the point of view
of disturbing the County's vested right in the land and from the point of view, on the other
hand of reviving the respondent's vanished right of redemption, we are compelled to hold that
the statute had no such retroactive effect.
[Headnotes 3-5]
Respondent contends that the consideration recited in the county treasurer's deed to it is
the full consideration contemplated by the statute, namely, the taxes, penalties, costs and
interest, together with taxes and interest thereon for the intervening years since the County
acquired title. It contends that a sale of the property is only a part of the procedure to collect
the taxes and that the policy of the state is not that the county treasurer, as trustee for the
county and state, should hold title to the property to the end that the state and county may
profit by its increase in value.
hold title to the property to the end that the state and county may profit by its increase in
value. However, the consideration contemplated by the statute is the full value of the
property. The receipt of such full value and the prevention of favoritism and fraud are fully
recognized in the requirement that the property may be sold only at public sale upon the
statutory notice. Such public sale contemplates bidding for the property by prospective
purchasers, and sale to the highest bidder. As the sale may be made only upon order of the
county commissioners, such board may in its discretion not order the property sold unless and
until such action seems proper. Lyon County v. Ross, 24 Nev. 102, 50 P. 1.
The judgment is reversed and the cause remanded with directions to enter judgment
denying relief to respondent.
____________
80 Nev. 536, 536 (1964) Sarman v. Goldwater, Taber and Hill
LOIS SARMAN, Guardian of the Person and Estate of ELIZABETH RABE, an Incompetent
Person, Appellant, v. GOLDWATER, TABER and HILL, Respondent.
No. 4776
November 30, 1964 396 P.2d 847
Appeal from a judgment of the First Judicial District Court, Douglas County; Frank B.
Gregory, Judge, fixing attorneys' fees in a guardianship matter.
Summary proceeding fixing fee of displaced attorney in guardianship action. The lower
court fixed fee of displaced counsel, and guardian appealed. The Supreme Court, Thompson,
J., held that guardian was personally liable for fee; that court had jurisdiction to hear the
matter in summary proceedings without filing of independent suit, and that amount of fee was
not excessive.
Judgment affirmed.
George W. Abbott, of Minden, for Appellant.
Goldwater, Taber and Hill, and Wayne L. Mortimer, of Reno, for Respondent.
1. Guardian and Ward.
Guardian who employs counsel in behalf of ward's estate is personally obligated to pay for counsel's
services as attorney-client relationship is between guardian and counsel, not between ward and counsel.
NRS 159.570.
Guardian's expense for services of counsel is authorized by statute and guardian will be entitled to credit
therefor in her accounting if services of counsel were necessary and charges reasonable. NRS 159.570.
3. Attorney and Client; Guardian and Ward.
Whether the determination of the fee of guardian's displaced counsel should be made in the proceeding in
which attorneys have rendered their services, or resort had to an independent suit, poses a problem of
choice rather than one of jurisdiction.
4. Attorney and Client.
Attorney's right to be paid is not based upon, or limited to, his lien, but is based on contract express or
implied, and lien is but security for this right.
District courts have incidental jurisdiction to resolve disputes between client and attorney in guardianship
matters. NRS 3.210; Const. art. 6, 6.
Where counsel was displaced in guardianship proceeding, and guardian did not charge counsel with any
impropriety, and the only dispute was amount of counsel's fee, and neither new counsel nor guardian
registered objection to resolution of dispute within pending guardianship matter, determination of dispute
in guardianship matter was not error.
7. Mental Health.
Award of $65,790 fee to displaced attorneys for guardian of estate of incompetent adult, with real estate
conservatively estimated at $2,000,000 and other property valued at about $198,000, where attorneys
served fourteen months on tax, management and estate problems and discharged their responsibility in a
skilled and competent manner, was supported by the evidence and was not excessive.
OPINION
The guardian appeals from a final order entered in a guardianship matter. She had
discharged her attorneys and substituted another. The order in question directed the
requested substitution, fixed the fee due the displaced attorneys, and directed them to
deliver their files and records to the guardian's new counsel upon payment of the fee or
giving appropriate security therefor.
directed the requested substitution, fixed the fee due the displaced attorneys, and directed
them to deliver their files and records to the guardian's new counsel upon payment of the fee
or giving appropriate security therefor. The substitution has been made.
1
Three issues are
raised on this appeal: Whether the guardian is personally liable to her displaced attorneys for
professional services rendered; whether the court in which the guardianship proceeding is
pending has jurisdiction to hear evidence and determine the fee to be paid the displaced
attorneys, or must such attorneys commence an independent suit for their compensation;
whether a fee of $65,790 is a reasonable fee for the displaced attorneys in this case.
The client-attorney relationship between Lois Sarman, Guardian, and the firm of
Goldwater, Taber and Hill, her attorneys, lasted for about 14 months. On September 20, 1963,
the guardian, by letter, terminated that relationship, requested that her files be delivered to her
newly selected counsel George Abbott, and that the displaced attorneys submit their statement
for services rendered. The displaced firm responded by letter, advising the guardian: You are
hereby notified that Goldwater, Taber and Hill, Attorneys at Law, 206 North Virginia Street,
Reno, Nevada, have a general or retaining lien on all of the files, records, documents in our
possession by virtue of our professional relationship. We will be pleased to comply with your
request that we withdraw as your attorneys in the guardianship, substitute George W. Abbott,
Esq., First National Bank Building, Minden, Nevada, and transfer all files, records and
documents in our possession to him. Before doing so, however, we must insist on payment in
full of all fees, costs, and disbursements due us. The law firm's statement for services in the
sum of $65,790 was shortly thereafter submitted to the guardian. Following this exchange of
correspondence the guardian, through her new counsel, by motion, sought to compel her
former counsel to deliver the files and records.
____________________

1
Because there has been full compliance with the order in the respect mentioned we will not consider certain
claimed procedural irregularities which the guardian has assigned as error. The questions raised thereby are
moot.
counsel to deliver the files and records. The court designated a hearing date, at which time
that motion was heard and evidence concerning the value of the displaced attorneys' services
was received. The guardian did not object to the power of the lower court to hear evidence
and determine the fee due her displaced attorneys, but consented to the procedure outlined by
the court. It is within this context that we turn to discuss the first and second issues of this
appeal.
[Headnotes 1, 2]
A guardian who employs counsel in behalf of the ward's estate is personally obligated to
pay for counsel's services. The attorney-client relationship is between the guardian and
counsel. It is not between the ward and counsel. The attorney's fee is an expense incurred by
the guardian in the performance of her duties for which she is personally liable. In re Boyd's
Guardianship, 37 N.M. 83, 18 P.2d 658. The expense is authorized by statute (NRS 159.570)
and the guardian will, in turn, be entitled to a credit therefor in her accounting if the services
of counsel were necessary and the charges reasonable.
2
Thus, in most cases, the ward's estate
will, if able, ultimately pay for counsel's services. This probability, however, does not serve to
erase the guardian's personal liability to counsel. Accordingly, we find no validity to the
guardian's contention here that it was improper for the lower court to enter a personal
judgment against her for the fee of displaced counsel.
[Headnotes 3, 4]
The guardian's contention that the lower court lacked power or jurisdiction to fix the fee of
the displaced counsel and enter a binding judgment in the guardianship proceeding is equally
unsound. Whatever the law may be in other jurisdictions to which she has referred us, it is
settled beyond doubt in Nevada. Whether the fee should be determined in the proceeding in
which the attorneys have rendered their services, or resort had to an independent suit, poses a
problem of choice rather than one of jurisdiction.
____________________

2
NRS 159.570 in pertinent part reads: Every guardian shall be allowed his or her reasonable expenses
incurred in the execution of his or her trust * * *.
than one of jurisdiction. In Earl v. Las Vegas Auto Parts, 73 Nev. 58, 307 P.2d 781, the
amount of the fee due the displaced attorney was fixed in the case in which his services were
performed, but was collected by independent suit, the court concluding that the amount so
determined was res judicata in the subsequent suit. Also in Morse v. District Court, 65 Nev.
275, 195 P.2d 199, the attorneys filed an independent suit. On the other hand, in Gordon v.
Stewart, 74 Nev. 115, 324 P.2d 234, it was squarely held that power exists to enter a binding
judgment for the displaced attorneys' fee in the pending matter without resorting to an
independent suit. The Earl case involved, inter alia, the attorney's statutory charging lien
(NRS 18.010) against the consent judgment obtained. The Morse case dealt with the
displaced attorney's common law retaining lien, while the Gordon case involved neither.
There the withdrawing attorneys simply asked the court to fix the compensation due them for
services performed prior to their withdrawal. The attorney's right to be paid is not based upon,
or limited to, his lien. It is based upon a contract, express or implied. The lien is but security
for his right. Gordon v. Stewart, supra. Thus, the power of the court to act is quite unrelated
to the nature of the lien sought to be enforced.
3
For example, in the instant matter, the court
below had the power to fix the fee due the displaced counsel whether they chose to assert
their retaining lien or not.
[Headnote 5]
Basically, the jurisdiction of the lower court rests upon constitutional provision. Art. 6, 6
of the Nevada Constitution invests the district court with original jurisdiction in all cases
relating to the persons and estates of minors and insane persons. The guardianship at hand
concerns an incompetent adult. To implement the organic law, the legislature passed NRS
3.210 which provides, in part, that the district courts shall have the power to grant and
revoke letters of guardianship, compel the guardian to account, compel the attendance of
witnesses, "and to make such other orders as may be necessary and proper in the
exercise of the jurisdiction conferred upon them by law."
____________________

3
The distinction between the statutory charging lien and the common law retaining lien is beautifully
articulated in Morse v. District Court, 65 Nev. 275, 195 P.2d 199.
the power to grant and revoke letters of guardianship, compel the guardian to account, compel
the attendance of witnesses, and to make such other orders as may be necessary and proper
in the exercise of the jurisdiction conferred upon them by law. Having in mind the quoted
portion of the last sentence, the language in the Earl and Gordon cases to the effect that the
court in which the attorney rendered his services has incidental jurisdiction to resolve
disputes between client and attorney is particularly meaningful. We perceive no valid basis
for a distinction between a dispute over fees arising in a civil action and a dispute arising
during the course of a guardianship proceeding. In either instance, the court in which the case
or proceeding is pending has the power to resolve the fee controversy.
[Headnote 6]
Whether it is wise to fix the fee for displaced counsel and enter judgment therefor in the
pending matter, or direct counsel to proceed by independent suit, is a different question and
one not presented on this appeal. Of course circumstances sometimes point to an independent
suit as the preferred choice. For example, in Morse v. District Court, supra, the client charged
that his counsel had been guilty of negligence and misconduct and was not entitled to a fee.
This court held that in such circumstances it was proper for the trial court to refuse to decide
those issues in a summary proceeding in the pending case. An independent action was
preferable. In the instant matter the client did not charge counsel with any impropriety. To the
contrary, she requested that their statement be submitted to her. The only matter in dispute
was the amount of the charge. Nor did the new counsel for the guardian register objection to a
resolution of the dispute within the guardianship matter. Had he done so, given security to
satisfy the fee claimed to be due (cf. Morse v. District Court, supra) and demanded a jury trial
(Nev. Const., Art. 1, 3), perhaps the lower court would have refused to proceed further.
Instead, he consented to the proceeding below. He may not now complain. In Morse v.
District Court, supra, the court stated: "This court has never had occasion to approve such
summary hearing nor is it necessary to determine now whether or not such summary
procedure should be had in a proper case."
v. District Court, supra, the court stated: This court has never had occasion to approve such
summary hearing nor is it necessary to determine now whether or not such summary
procedure should be had in a proper case. We now decide that, upon the circumstances here
disclosed, it was permissible for the lower court to resolve the fee problem by a summary
procedure in the guardianship proceeding.
[Headnote 7]
We turn to the final issue raised by the guardian's contention that a fee allowance of
$65,790 is so excessive as to constitute an abuse of discretion. The award is supported by the
evidence. In re Jacobson's Guardianship, 30 Cal.2d 312, 182 P.2d 537. One of the expert
witnesses believed that a fee of $81,000 was justified. The prime asset of the ward's estate is
approximately 500 acres of real property near Stateline, Lake Tahoe. Its value is
conservatively estimated at $2,000,000. The ward has other property, valued at about
$193,000. Management of the Lake Tahoe property, the planned liquidation of some of it to
pay the estate tax liability of the ward's deceased husband, and other debts, tax consequences,
future estate planning, were some of the problems to which displaced counsel devoted their
attention. Their legal responsibility is shown to have been competently discharged, and their
work skillfully performed. The lower court did not abuse its discretion in its determination of
the reasonable value of their services.
Affirmed.
____________
80 Nev. 543, 543 (1964) Sterling Builders, Inc. v. Fuhrman
STERLING BUILDERS, INC., a Nevada Corporation,
Appellant, v. R. B. FUHRMAN, Respondent.
No. 4764
December 3, 1964 396 P.2d 850
Appeal from Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Action against alleged co-partners doing business as a food market on certain assigned
claims against the market. The trial court entered judgment for plaintiff and one of the alleged
partners appealed. The Supreme Court, Badt, C. J., held that even though a corporation was
improperly permitted to participate in a distribution dividend paid by receiver of the market,
status of the corporation did not thereby become fixed as a creditor and not a partner in the
market, and corporation if in fact a partner in the business could thereafter be held liable as
such.
Affirmed.
Breen, McDonald & Young, and Jerry Carr Whitehead, of Reno, for Appellant.
Cooke & Roberts, of Reno, for Respondent.
1. Partnership.
Fact that a corporation was a creditor of a food market did not preclude the corporation from being a
partner in ownership of the market with an individual.
2. Partnership.
Even though a corporation was improperly permitted to participate in a distribution dividend paid by a
receiver of a business, status of the corporation did not thereby become fixed as a creditor and not a partner
of the business, and corporation if in fact a partner in the business could thereafter be held liable as such.
NRS 87.400.
3. Partnership.
A corporation in initiating, prosecuting and effectuating the receivership for a food market on the basis
that it and an individual were a co-partnership in operation of the market, and in participating in proceeds
even though it should not have been permitted to participate until general creditors had been satisfied was
thereby judicially estopped from advancing the claim that it was not a partner in operation of the food
market.
4. Partnership.
Payments made to a creditor in a partnership receivership did not discharge partners from further
obligation.
OPINION
Fuhrman, manager of the Northern Nevada Board of Trade, sued Sterling Builders, Inc., a
Nevada corporation, and Hyrum K. Ford (which latter defendant is not involved in this
appeal), as co-partners doing business as Sterling Village Market, on some 34 assigned
claims against the Market. The assigned claims of the various creditors amount to a total of
$21,435.84. Sterling Builders, Inc., in its answer (1) denies that it was a partner of defendant
Ford in said Sterling Village Market, and alleges that it was merely a creditor; and (2) that by
reason of Fuhrman's participation in the receivership proceeding, his failure to set forth the
claim that the defendant was a partner and not a creditor, Fuhrman as assignee is now
estopped to contend otherwise, and that in any event, plaintiff's assignors having received pro
rata payments through a receivership of Sterling Village Market cannot now recover for any
balance due. The following appears from the findings contained in the lower court's written
opinion:
On July 22, 1956, Hyrum K. Ford and Sterling Builders, Inc. entered into an agreement
for the purpose of setting up for operation a grocery and meat market to be known as the
Sterling Village Market, in Reno, Nevada, at 505 Denslow Drive.' Generally, the agreement
provided that Sterling Builders, Inc., would loan cash and use its credit to equip a grocery and
meat market on the premises owned by Sterling Builders, Inc. Pursuant thereto, Sterling
Builders, Inc. loaned money to Sterling Village Market for which a promissory note in the
amount of Twenty Thousand Seven Hundred and 20/100 Dollars ($20,700.20) payable in one
(1) year was executed. No payments of principal or interest were made on this note which
was renewed from year to year and rent was paid sporadically. The market apparently lost
money for a number of reasons and what started out as a promising business venture
turned into a not uncommon business failure."
lost money for a number of reasons and what started out as a promising business venture
turned into a not uncommon business failure.
The trial judge's opinion shows that defendant argued to the trial court, as it argues as
appellant here:
[T]hat the relationship between it and Hyrum K. Ford was not that of a joint venture or
partnership, but that the essential arrangement between the parties was that of debtor and
creditor and landlord and tenant, despite the fact that the agreement of July 22, 1956, was
entitled Agreement for Joint Venture'; despite the fact that the defendants on December 4,
1956, filed a certificate of fictitious name showing both to be members of Sterling Village
Market; despite evidence of Sterling Builders, Inc. being an owner on the liquor license of
Sterling Village Market; despite the fact that defendant jointly executed the promissory note
to Sterling Builders, Inc. (Exhibit 1); despite the fact that a lease was obtained by Sterling
Village Market and executed by defendants herein who were termed a joint venture'; despite
testimony and an exhibit (plaintiff's I) which indicated that defendants were particularly
described as a joint venture and, finally, despite the fact that the complaint filed on September
20, 1960, being action No. 188,238 made numerous allusions to the character of the business
which had been and was then being conducted as a joint venture and likewise that subsequent
orders referred to the business arrangement as a joint venture.
The entire file of the receivership proceeding was introduced in evidence. In that
proceeding Sterling Builders, Inc., commenced an action against Hyrum K. Ford and alleged
that plaintiff and defendant entered into a written Agreement For Joint Venture, for the
purpose of operating a grocery and meat market to be known as the Sterling Village Market
* * *, and attached a copy of the written agreement. Sterling Builders, Inc., further alleged in
such complaint that plaintiff and defendant entered upon, and have ever since continued to
carry on, the business of said joint venture (emphasis supplied), and no other articles or
instruments have ever been executed between them."1 Sterling Builders, Inc., further
alleged that under the agreement Ford was to manage the market, and use reasonable
skill; that he failed properly to manage the market, had not used reasonable skill, or any
skill, and as the result the joint venture business sustained continued losses; that there
was due to trade creditors approximately $70,000, and in addition that there was due
from the joint venture to the plaintiff as rental over $20,000, in part represented by a
promissory note; that the assets of the joint venture did not exceed $55,000, and that the
defendant has failed and refused to contribute his one-half share of the losses already
sustained; that plaintiff was solvent and defendant insolvent; that Sterling Builders, Inc.,
had received an offer for the purchase of the Market in the sum of $21,500, plus
inventory, and believed that such offer should be accepted, but that defendant refused to
sell. Sterling Builders, Inc., asked a receiver to be appointed, and that Stephen J.
instruments have ever been executed between them.
1
Sterling Builders, Inc., further alleged
that under the agreement Ford was to manage the market, and use reasonable skill; that he
failed properly to manage the market, had not used reasonable skill, or any skill, and as the
result the joint venture business sustained continued losses; that there was due to trade
creditors approximately $70,000, and in addition that there was due from the joint venture to
the plaintiff as rental over $20,000, in part represented by a promissory note; that the assets of
the joint venture did not exceed $55,000, and that the defendant has failed and refused to
contribute his one-half share of the losses already sustained; that plaintiff was solvent and
defendant insolvent; that Sterling Builders, Inc., had received an offer for the purchase of the
Market in the sum of $21,500, plus inventory, and believed that such offer should be
accepted, but that defendant refused to sell. Sterling Builders, Inc., asked a receiver to be
appointed, and that Stephen J. Sideck, the broker who arranged the prospective sale, was
qualified and experienced and should be appointed forthwith as receiver.
The trial court found that Sterling Builders, Inc., and Ford were co-partners, granted
Sterling's prayer for the appointment of receiver, confirmed the receiver's sale, allowed fees to
the receiver and his attorney and discharged the receiver. So much for the receivership
proceeding, except to note that one of the present firm of attorneys for appellant was the
attorney for appellant Sterling Builders, Inc., as the plaintiff who sought the appointment of a
receiver. They were also attorneys for the receiver in that proceeding.
[Headnote 1]
In this court appellant maintains that, despite the facts found by the trial court as above
recited, Sterling Builders, Inc., and Ford were never either partners or joint adventurers doing
business as Sterling Market, and that the relationship of Sterling Builders, Inc., to Sterling
Market was simply that of creditor and debtor. Appellant insists that as Sterling Builders,
Inc., was a creditor of Sterling Market, it could not have been a partner in said Sterling
Market with Ford.
____________________

1
In view of this, we summarily dismiss appellant's argument that the joint venture was merely to set up the
said business, and ceased to operate as soon as the business was set up, whereupon appellant became merely a
creditor and not a partner or joint adventurer.
that the relationship of Sterling Builders, Inc., to Sterling Market was simply that of creditor
and debtor. Appellant insists that as Sterling Builders, Inc., was a creditor of Sterling Market,
it could not have been a partner in said Sterling Market with Ford. We dispose of this without
more ado. There is no legal reason why a partnership cannot be indebted to one of the
partners.
[Headnote 2]
The dividend paid to creditors by the receiver amounted to about $.37 on the dollar.
Appellant asserts that because Sterling Builders, Inc., participated in this dividend, its status
is forever fixed as a creditor and not as a partner. This, because under the general law of
partnerships as reflected by the laws of this state (NRS 87.400), a partner is not entitled to
share in the assets of the partnership until the general creditors have been paid. Apparently
this situation was never brought to the attention of the court by the receiver or his attorneys,
and no logical reason appears for additionally penalizing the general creditors and rewarding
Sterling Builders, Inc., because Sterling Builders, Inc., had inadvertently been granted an
advantage to which it was not entitled.
The main holding of the court below was (1) that a partnership existed; (2) that appellant
was equitably estopped by the recited facts from claiming that a partnership did not exist; and
(3) that it was judicially estopped by its participation in the receivership proceedings from
asserting in defense of the present action that a partnership did not exist.
2

As to the equitable estoppel, appellant contends that the various acts as recited by the trial
court indicating that appellant was a partner were not acted upon by any of the creditors to
their prejudice, and that such actions or change of position in reliance thereon is necessary to
create an equitable estoppel. This too does not require a determination in this case, as we are
satisfied that in any event a judicial estoppel did exist against the assertion in this case
that Sterling Builders, Inc., was not a partner.
In seeking the appointment of a receiver to take charge of the partnership assets of
Sterling Market to the end that such assets might be sold and the proceeds devoted to the
payment of creditors, Sterling Builders, Inc., was compelled to rely, and did rely, upon the
contention that it and Ford were co-partners.
____________________

2
The briefs contain considerable discussion of the distinction between a joint venture and a partnership. We
need not pursue this. In Botsford v. Van Riper, 33 Nev. 156, 196, 110 P. 705, 712, this court held, citing
numerous authorities: The rules and principles of the doctrine of partnership apply generally to the relation of
joint adventure.
any event a judicial estoppel did exist against the assertion in this case that Sterling Builders,
Inc., was not a partner.
In seeking the appointment of a receiver to take charge of the partnership assets of Sterling
Market to the end that such assets might be sold and the proceeds devoted to the payment of
creditors, Sterling Builders, Inc., was compelled to rely, and did rely, upon the contention that
it and Ford were co-partners. This it did by filing its complaint verified by its president. In
Electrical Products Corp. v. District Court, 55 Nev. 8, 23 P.2d 501, a writ of certiorari was
granted and the appointment of a receiver of the defendant's property was set aside. This court
there said:
The property of defendant Beck was not seized under process attachment to create a lien
upon his property. The appointment of the receiver did not give the court jurisdiction of the
res. It is not a case in which the court had jurisdiction to appoint a receiver at all. The plaintiff
is a mere contract creditor and the defendant an individual debtor. The former has not reduced
his claim to a judgment, nor has he any right or interest in or lien upon the specific property
of the latter. The plaintiff therefore had no standing to obtain the appointment of a receiver
for the defendant's property. * * * (citing authorities). The lower court said in Davis v.
Hayden, supra: * * * We take it to be an established principle of jurisprudence that a court of
equity is without power, in the absence of statutory authority, to appoint a receiver of the
assets of an individual debtor, or to enjoin the prosecution of claims against him, at the suit of
a mere contract creditor who has no lien or other security, and who asserts no right to subject
any specific property to the payment of his debt.' This is a clear statement of the general rule,
applicable to the facts involved in this case. It was pointed out in State v. Superior Court of
Marion County, supra, that such was the rule at common law.
There has been no statutory change in this state to authorize the appointment of a receiver
for the property of an individual debtor on application of a mere contract creditor.
creditor. That part of paragraph 1 of section 8749 of N.C.L., providing for the appointment of
a receiver in an action by a creditor to subject any property or fund to his claim' does not
work such a change. French Bank Case, 53 Cal. 495-552; In re Richardson's Estate (D.C.),
294 F. 349-357. Accord, Davis v. Hayden, 238 F. 734, and cases therein cited.
[Headnote 3]
It is then apparent that Sterling Builders, Inc., could not have been successful in securing
the appointment of a receiver for Sterling Village Market without alleging that such market
was a co-partnership comprised of Sterling Builders, Inc., and Hyrum K. Ford. It
accomplished not only the appointment of a receiver but a receiver's sale of the partnership
assets and a confirmation of that sale and a participation in the proceeds, despite the fact that
under the statute it should not, as a partner, have been permitted to participate until the
general creditors had been satisfied. NRS 87.400. Under this situation we have no difficulty
in holding that by initiating, prosecuting, and effectuating the results of the receivership to its
own benefit it is judicially estopped from assuming here an inconsistent position and
advancing the claim that it was not a partner in Sterling Village Market.
The general rule is stated in 31 C.J.S., Estoppel 121, at 649, 650, as follows:
Under the doctrine of judicial estoppel a party may be estopped merely by the fact of
having alleged or admitted in his pleadings in a former proceeding the contrary of the
assertion sought to be made. The court recognize that this doctrine applies with particular
force to admissions or statements made in the pleadings under the sanction of an oath, and it
has been held that the statement in the prior proceeding must have been made under oath * *
*. In accordance with this requirement, it is stated that under the doctrine of judicial estoppel
a party who has stated on oath in former litigation, as in a pleading, a given fact as true, will
not be permitted to deny that fact in subsequent litigation.
* * * * *
It has been said that the purpose of the doctrine of judicial estoppel is to suppress fraud,
and to prohibit the deliberate shifting of position to suit exigencies of each particular case that
may arise concerning the subject matter in controversy; but at least in so far as this doctrine is
applied to statements under oath, its distinctive feature has been said to be the expressed
purpose of the court, on broad grounds of public policy, to uphold the sanctity of an oath, and
to eliminate the prejudice that would result to the administration of justice if a litigant were to
swear one way one time and a different way another time.
The rule as stated is amply supported by cases cited in the footnotes.
The trial court's conclusion that Sterling Builders, Inc., and Hyrum K. Ford were partners
in Sterling Village Market is amply supported by the evidence. As a matter of law, the trial
court was likewise correct in holding that Sterling Builders, Inc., was by its actions in the
receivership proceeding judicially estopped from denying its partnership relationship. As
such, it was liable for the payment of creditors' claims of Sterling Village Market.
[Headnote 4]
As to the claim of appellant that respondent is estopped, by reason of the payments made
to him in the receivership case, from seeking to recover judgment for balance due from
appellant as a partner of Sterling Village Market, it need only be said that payments made in
the receivership were not made in the bankruptcy sense so as to discharge the partners from
further obligation. 45 Am.Jur., Receivers 138, 342 (1943); 2 Clark, Law of Receivers
610, 620 (3d ed. 1959). See also Leadville Coal Co. v. McCreery, 141 U.S. 475, 12 S.Ct. 28,
35 L.Ed. 824.
____________
80 Nev. 551, 551 (1964) Jefferes v. Cannon
ODIE JEFFERES and FRANCES JEFFERES, Appellants,
v. IVAN CANNON and ROBERT GRIPENTOG, Respondents.
No. 4778
December 4, 1964 397 P.2d 1
Action was brought for injuries allegedly suffered by one of the plaintiffs in a boat
collision. The trial court entered a judgment for the defendants and an order denying the
plaintiffs' motion for new trial, and the plaintiffs appealed. The Supreme Court, Badt, C. J.,
held that where the plaintiffs permitted the case to go to the jury without objection because
defendants and their counsel during court recesses were permitted to go to the bailiff's room
to partake of coffee therein, the plaintiffs waived the alleged misconduct.
Affirmed.
Robert Callister, of Las Vegas, for Appellants.
Morse & Graves, of Las Vegas, for Respondent Ivan Cannon.
Singleton and DeLanoy, and Rex A. Jemison, of Las Vegas, for Respondent Robert
Gripentog.
1. Witnesses.
One of the plaintiffs on cross-examination was properly asked questions, which were for purpose of
impeaching her testimony, and which were based on prior testimony taken under oath, over objection that
questions were irrelevant and immaterial.
2. Trial.
Where counsel for plaintiffs objected to testimony of doctor in behalf of defendants, but after counsel for
defendants explained purpose of doctor's testimony, counsel for plaintiffs stated to the court that they
would withdraw their objection and that the doctor should be permitted to testify, objection was waived.
3. Trial.
Where plaintiffs permitted case to go to jury without objecting to fact that during court recesses
defendants with their counsel were permitted to go to bailiff's room to partake of coffee
within view of jury, alleged misconduct was waived by plaintiffs.
counsel were permitted to go to bailiff's room to partake of coffee within view of jury, alleged misconduct
was waived by plaintiffs.
OPINION
This is an appeal from a judgment based on jury verdict in favor of respondents,
defendants below, in an action for damages for personal injuries alleged to have been suffered
by appellant Frances Jefferes in a boat collision. The collision is alleged to have been caused
by the negligence of respondents. The appeal is also from the order denying appellants'
motion for new trial.
Appellants assign three errors in support of their appeal.
[Headnote 1]
(1) They first assign error in the overruling of their objections to the cross-examination of
appellant Frances Jefferes, asserting that the questions asked on cross-examination were
irrelevant and immaterial. The questions asked were for the purpose of impeaching the
witness' testimony and were based on prior testimony taken under oath. To illustrate the
nature of the questions and the nature of the objections, counsel quotes verbatim not only in
his opening brief but also in his reply brief some 14 or 15 pages of the record of such
examination. We have carefully scrutinized the entire examination and have found that the
cross-examination for impeachment purposes was justified. There is no merit to the claim that
the overruling of objections to such questions was erroneous.
[Headnote 2]
(2) Appellants' next assignment of error is in the overruling of objection to the direct
testimony of Dr. Adrien Ver Brugghen in behalf of respondents. Dr. Ver Brugghen testified to
an examination made of Frances Jefferes in connection with a claim made by her to the
Nevada Industrial Commission for compensation growing out of a previous accident. Mrs.
Jefferes had testified in a deposition prior to trial that she had had no prior accidents and
had made no prior claim to any person or organization for compensation.
testified in a deposition prior to trial that she had had no prior accidents and had made no
prior claim to any person or organization for compensation. Appellants insist that the
testimony was irrelevant and immaterial, as having to do with a prior injury and not the injury
for which damages were sought, and that the testimony was simply an attack on the witness'
character rather than on her credibility. Dr. Ver Brugghen testified that the plaintiff was
feigning neck injuries involved in this claim to the Nevada Industrial Commission for
compensation and that she had a trick control over her muscles which she utilized in feigning
such injury. The record shows, however, that after the objection was made and after counsel
for respondents had explained the purpose of the testimony, counsel for appellants stated to
the court: We will withdraw our objection, let the Doctor testify. The objection was
patently waived. The assignment of error is without merit.
[Headnote 3]
(3) The third and last assignment of error charges misconduct on the part of respondents,
namely, that the two respondents during court recesses with their counsel were permitted to
go to the bailiff's room, using the presiding judge's entrance to the courtroom, that they would
partake of coffee therein, all within the view of the jury, and that the bailiff called defendant
Robert Gripentog Bob during court recesses in the presence of members of the jury. This
conduct, however, was not called to the attention of the presiding judge, nor was any
objection made or any motion based thereon until motion for new trial was made, and these
facts were brought out in plaintiffs' counsel's affidavit supporting motion for new trial.
Whether such actions may or may not be said to comprise prejudicial misconduct, plaintiffs
permitted the case to go to the jury without objection, and then made the charge of
misconduct for the first time on their motion for new trial.
In Dollarhide v. Gunstream, 55 N.M. 353, 233 P.2d 1042, certain papers were improperly
permitted to go to the jury room after the jury retired. The court said: "In the instant case
appellant's counsel was present, participated in the proceedings, and objections for the
first time were made on motion for a new trial.
In the instant case appellant's counsel was present, participated in the proceedings, and
objections for the first time were made on motion for a new trial. It would therefore appear
that the error complained of, if not invited, was waived. Errors of the trial court cease to be
such in the appellate court if invited or waived.
If the acts complained of constituted misconduct, the same was waived by appellants'
failure to call the same to the attention of the court with an appropriate objection or motion.
This assignment of error is likewise without merit.
Many other matters are discussed in the briefs. Respondents call attention to the testimony
of three witnesses to the effect that appellant Frances Jefferes was not in her boat at the time
of the alleged collision, and that the alleged collision of respondents' boat with the rear of
appellants' boat, which was tied up to the pier, could not have thrown Frances Jefferes
forward six to eight feet as claimed, as such impact, if it had occurred, would have thrown her
backward rather than forward; that an eye witness had testified that the impact was so slight
that a two-year-old boy standing on respondents' boat did not even lose his balance, and that
such evidence, combined with the impeachment of Frances Jefferes' testimony amply
supported the verdict for the defendants. However, these and other matters do not require
discussion, as we are simply concerned with the merits of appellants' three assignments of
error.
The judgment and the order denying new trial are affirmed with costs.
____________
80 Nev. 555, 555 (1964) Chapp v. Peterson
NORBERT C. CHAPP and HARTKECHAPP ENTERPRISES, INC., Appellants,
v. ELMER D. PETERSON and AUDREY M. PETERSON,
Husband and Wife, Respondents.
No. 4779
December 7, 1964 397 P.2d 5
Action by prospective purchasers for specific performance of alleged agreement to sell
realty. The lower court rendered judgment for prospective vendors, and purchasers appealed.
The Supreme Court, McNamee, J., held that purported offer to sell realty by way of letter not
mentioning the words or more was not substantially accepted by prospective purchasers'
signing of escrow instructions providing for monthly payments of $500 or more, in absence
of showing of local custom and usage of inserting the words or more in sales agreement,
and that testimony of escrow officer of company which did 50 percent of escrow work in
county that company used the words or more in 95 percent of its escrows to permit
purchaser to accelerate payment of balance due on price unless expressly directed otherwise
was not sufficient to constitute a showing of established custom and usage in the county of
permitting purchaser to accelerate payment since the testimony was limited to the custom and
usage of the company.
Affirmed.
W. Bruce Beckley, of Las Vegas, for Appellants.
John Peter Lee, of Las Vegas, for Respondents.
Evidence supported finding that there had been no meeting of minds between prospective vendors and
prospective purchasers suing vendors for specific performance of alleged agreement to purchase realty, as
shown by letter which vendors sent to escrow agent and which provided for payments of $500 per month
and did not contain the words or more and escrow agent's preparation of written instructions providing
for payment of monthly installments of $500 or more.
2. Customs and Usages.
Testimony of escrow officer of company which did 50 percent of escrow work in county that company
used the words or more in 95 percent of its escrows to permit purchaser to accelerate payment of balance
due on price unless expressly directed otherwise was not sufficient to constitute a showing of established
custom and usage in the county of permitting purchaser to accelerate payment since the testimony was
limited to the custom and usage of the company.
To be enforceable as part of written contract, custom must be certain, continuous, and uniform; it must be
so uniform that parties concerned must be presumed to have known of it and acted in reference to it or so
fixed that those engaged in business may know what to meet.
Purported offer to sell realty by way of letter not mentioning the words or more was not substantially
accepted by prospective purchasers' signing of escrow instructions providing for monthly payments of $500
or more, in absence of showing of local custom and usage of inserting the words or more in sales
agreements.
In a case where there is an offer and a conditional acceptance constituting a counter-offer, evidence of
custom and usage is not admissible to convert counteroffer into an acceptance.
6. Bills and Notes.
In absence of provision for prepayment of installment note, creditor has right to refuse to accept
payments prior to maturity of principal except in installments expressly provided for by the note.
7. Bills and Notes.
In addition to right to repayment of loan with interest, lender possesses right to interest which is
contemplated by the parties and would accrue if principal payments are made in manner provided for by
note.
8. Estoppel.
Prospective vendors' letter to escrow company wherein vendors stated that property was no longer on the
market was not necessarily inconsistent with vendors' position at trial of prospective purchasers' specific
performance action that no binding contract had resulted from negotiations, and vendors were not estopped
against defending on ground that letter to escrow agent did not include the words or more whereas
escrow instructions signed by purchasers provided for monthly payments of $500 or more.
OPINION
Appellants, as plaintiffs, brought this action for specific performance of an agreement to
purchase real property which they allege that the respondents, as sellers, breached.
property which they allege that the respondents, as sellers, breached. In the alternative they
seek damages for the breach. Hereinafter the appellants as well as the respondents will be
referred to in the singular.
On August 1, 1962 the respondent executed escrow instructions to Pioneer Title Insurance
Company of Nevada as escrow agent wherein he negotiated for the sale of the property in
question to Norbert C. Chapp, or his nominee. The sale price was for $85,000, $24,000 of
which was to constitute the down payment and the balance was to be paid in installments of
$500 or more. Chapp signed the instructions as buyer. This escrow was cancelled by mutual
consent in November 1962. Thereafter the parties had two telephone conversations regarding
the sale of the land. As a result of these conversations respondent sent a letter to Pioneer Title
which stated in substance the purchase price of $85,000, the down payment to be $24,000, the
balance of $61,000 to be represented by a note secured by a trust deed in the sum of $61,000
with interest at the rate of 6 1/2 percent. During the balance of 1963 only monthly payments
of interest were to be made commencing 30 days after the close of escrow. In 1964 payments
were to be $500 per month including 6 1/2 percent interest; the agreement to be completed
not earlier than January 2, 1963 and not later than January 28, 1963. Although the typed part
of the letter fails to mention the name of the buyer at the top of the letter, apparently in the
handwriting of Elmer D. Peterson, is the following:
Attn. Norbert C. Chapp, Hartke Realty
2606 E. College Ave.
N. Las Vegas
The last paragraph of the letter states:
Mail two copies of the escrow instruction to seller which are signed by the buyer and
which acknowledge receipt of the above mentioned $5,000 [the amount of the $24,000 down
payment to be deposited by the buyer at the time of the opening of the escrow], seller will
sign and return one copy and retain the other for his file.
Pursuant to said letter, Pioneer Title reopened the escrow and prepared written
instructions in strict accordance with the letter with the following exceptions: The
deferred principal and accruing interest were to be paid in monthly installments of $500
or more; the buyer was designated as Hartke-Chapp Enterprises, Inc., or nominee.
Hartke-Chapp Enterprises, Inc., signed the escrow instructions.
escrow and prepared written instructions in strict accordance with the letter with the
following exceptions: The deferred principal and accruing interest were to be paid in monthly
installments of $500 or more; the buyer was designated as Hartke-Chapp Enterprises, Inc., or
nominee.
Hartke-Chapp Enterprises, Inc., signed the escrow instructions. They were sent to
respondent who, after receipt of same, refused to sign them and wrote Pioneer Title by letter
dated December 19, 1962, This property is no longer on the market so I am returning all
papers.
On January 14, 1963 this action was filed followed by respondent's answer which denies
any contract, oral or written, although he admits the execution of the letter to the escrow
agent and that the escrow agent sent them escrow instructions executed by appellant. The
answer contains no affirmative defense. The parties stipulated that on December 17, 1962
respondent entered into a written agreement with one Peelen for the sale to him of part of the
property involved, which provided for the deferred payments to be at the rate of $1,500 or
more every three months.
On October 24, 1963 appellant moved to amend his complaint by alleging that it was the
custom and usage in the Clark County real estate business, which custom and usage was
known to respondent for buyers, sellers, brokers, and escrow companies, to assume and
understand that a designated installment payment, unless specifically otherwise provided or
stipulated, could be prepaid by the use of the words or more' in contracts and agreements to
purchase. This motion was later denied.
After a trial, the court filed a written decision stating that the respondent was under no
obligation to execute the escrow papers because they contained the words or more contrary
to the explicit instructions given the title company by the respondent. The court did concede
however that the letter from the respondent to the escrow agent would suffice to take care of
the statute of frauds although it is not a contract as such between the plaintiffs and the
defendants. It is merely a direction to an escrow agent to prepare the documents necessary
to consummate the sale in accordance with the explicit directions given.
a direction to an escrow agent to prepare the documents necessary to consummate the sale in
accordance with the explicit directions given. This the title company did not do.
Findings of fact and conclusions of law were filed in accordance with said written
decision, and judgment was entered in favor of the respondent.
A motion was then made to amend the findings by stating that the parties prior to the
execution of the written papers had in November of 1962 reached an oral agreement which
had provided for payments of $500 or more per month; that although Mrs. Peterson had not
signed any writing, she at all times had knowledge of the deal and acquiesced and approved
of all of her husband's actions; that plaintiffs at all times would have purchased the property
under an agreement for monthly installment payments limited to $500 per month.
The motion to amend the findings of fact, conclusions of law, and decision was denied.
Appeal is from the judgment and from the order denying the motion to amend.
Appellant contends on appeal that an oral contract for the sale of the land had been entered
into between the parties and that because of the letter from Peterson to the escrow holder the
statute of frauds was satisfied and the oral contract thereby became enforceable.
[Headnote 1]
Whether or not there was ever a meeting of the minds with respect to the terms of the
contract for sale during the telephone conversations need not be considered. The trial court in
its written decision apparently determined from conflicting evidence that there had been no
meeting of the minds. This determination is supported by respondent's letter of instructions to
the title company which did not contain the words or more.
Appellant next contends that respondent's letter of instructions to the escrow agent
constitutes an offer on his part to sell the land to appellant in accordance with the terms of
said letter and that the appellant accepted said offer by signing said instructions and
returning them to respondent; that the insertion in the escrow instructions of the words
"or more" was in accordance with local customs and usage known by respondent to
exist1 and therefore there was no conditional acceptance which would negate a
completed contract.
accepted said offer by signing said instructions and returning them to respondent; that the
insertion in the escrow instructions of the words or more was in accordance with local
customs and usage known by respondent to exist
1
and therefore there was no conditional
acceptance which would negate a completed contract.
[Headnote 2]
Evidence of local custom and usage in this respect was introduced through the testimony
of Norma Wadsworth, an escrow officer of Pioneer Title, who testified that her company,
which did 50 percent of the escrow work in Clark County, used the words or more in 95
percent of their escrows to permit the buyer to accelerate payment of a balance due on a
purchase price unless expressly directed otherwise. We are of the opinion that the trial court
properly refused to consider this testimony sufficient to constitute a showing of such
established custom and usage existing in the county limited as it was to the custom and usage
of Pioneer Title.
2

[Headnote 3]
A custom to be enforceable as part of a written contract must be certain, continuous, and
uniform. It must be so uniform that the parties concerned must be presumed to have known of
the custom and acted in reference to it, or, as has been said, so fixed that those engaged in the
business may know what to meet. Conversely, lack of definiteness is fatal to the existence of
a custom, hence, evidence of a loose usage for an indefinite period, limited to a few persons
in one particular locality, will not suffice in a court of law. 55 Am.Jur., Usages and Customs
10 (1946).
[Headnote 4]
If we consider the letter of instructions an offer by respondent to sell, was the signing by
appellant of the escrow instructions which contained the words "or more" a substantial
acceptance of that offer?
____________________

1
The record does not show affirmatively that respondent knew of any such custom. See 55 Colum.L.Rev.
1199-1200 (1955).

2
Norma Wadsworth when asked, Now, is this custom and usage invariably followed? answered, Well, not
always.
escrow instructions which contained the words or more a substantial acceptance of that
offer? Appellant concedes that it would not be a substantial acceptance in the absence of
sufficient evidence to show that it was the local custom and usage to insert the words or
more in such sales agreements. As hereinbefore pointed out sufficient evidence of a custom
or usage was not presented.
[Headnote 5]
In discussing the matter of custom and usage, we do not intend to hold by implication or
otherwise that in a case where there is an offer and a conditional acceptance which constitutes
a counter-offer, evidence of custom and usage is admissible to convert the counteroffer into
an acceptance.
[Headnotes 6, 7]
In the absence of a provision for prepayment of an installment note the creditor has the
right to refuse to accept payment prior to maturity of the principal except in the installments
expressly provided for by the note. McCarty v. Mellinkoff, 118 Cal.App. 11, 4 P.2d 595;
Fowler v. Courtemanche, 202 Or. 413, 274 P.2d 258. A reason for this rule is that the creditor
in addition to his right to the repayment of the loan with interest possesses also the right to
the interest contemplated by the parties which would accrue if the principal payments are
made in the manner provided for by the note. Another reason can be attributed to the income
tax situation which could be prejudicial to a creditor if he is precluded from spreading
payments over a period of time most advantageous to him.
The title company by inserting the words or more substantially changed the written
directions to it from the respondent. In signing the escrow instructions appellant accepted a
nonexistent offer. As a result the parties did not enter into an enforceable contract of sale.
[Headnote 8]
In returning the escrow papers unsigned to Pioneer Title respondent gave as his reason that
the property was no longer on the market. It was only after this action was commenced that
respondent stated {in his pretrial deposition) that his reason for not completing the sale
was because of the variance between his instructions to the title company and the escrow
instructions prepared therefrom.
action was commenced that respondent stated (in his pretrial deposition) that his reason for
not completing the sale was because of the variance between his instructions to the title
company and the escrow instructions prepared therefrom. For this reason appellant contends
that respondent is now estopped from shifting his position and defending upon objections to
certain words of acceptance which might have been corrected if called to the buyer's attention
before expiration of his period of acceptance. We answer this contention simply by stating
that the letter of December 19, 1962 from respondent to Pioneer Title wherein he stated this
property is no longer on the market is not necessarily inconsistent with his present position
that no binding contract had resulted from negotiations between the parties. Unless such a
contract came into existence within the time provided the seller was at liberty to withdraw the
property from the market.
Affirmed.
____________
80 Nev. 562, 562 (1964) Gutierrez v. Sutton Vending Service
ADOLPH GUTIERREZ, Individually, and ADOLPH GUTIERREZ, as Guardian ad Litem
for JACOB GUTIERREZ, a Minor Child, Appellant, v. SUTTON VENDING SERVICE,
INC., LAMON COLLINS, dba LAMON COLLINS UNION 76 SERVICE STATION
and LAMON COLLINS, Individually, Respondents.
No. 4780
December 7, 1964 397 P.2d 3
Marshall, Judge.
Action for injuries sustained by infant when automatic vending machine toppled over upon
him. The lower court denied plaintiff's motion for new trial after jury returned verdict of
$200 for plaintiff and plaintiff appealed. The Supreme Court, Thompson, J., held that
court had properly instructed jury to disregard all evidence as to infant's inability to play
his trumpet, where medical witness testified that infant had fully recovered from head
injury more than year before trial, no objective or clinical signs of damage remained and
expert testified that injury could have affected infant's ability to play trumpet and that
there was a slight possibility that it might continue to bother him.
lower court denied plaintiff's motion for new trial after jury returned verdict of $200 for
plaintiff and plaintiff appealed. The Supreme Court, Thompson, J., held that court had
properly instructed jury to disregard all evidence as to infant's inability to play his trumpet,
where medical witness testified that infant had fully recovered from head injury more than
year before trial, no objective or clinical signs of damage remained and expert testified that
injury could have affected infant's ability to play trumpet and that there was a slight
possibility that it might continue to bother him.
Judgment affirmed.
Harry E. Claiborne, and John Manzonie, of Las Vegas, for Appellant.
Singleton and DeLanoy and Rex A. Jemison, of Las Vegas, for Respondent Sutton
Vending Service, Inc.
Morse & Graves, and Lee R. Rose, of Las Vegas, for Respondent Lamon Collins Union 76
Service Station, and Lamon Collins, individually.
1. Damages.
Injured infant's testimony that his headaches continued to time of trial was not competent to allow
damages for future pain and suffering.
2. Damages.
Where disability is subjective in character and not demonstrable to others, expert testimony that disability
will probably continue is needed before award for future damage is permissible.
3. Trial.
Where medical witness testified that infant had fully recovered from his head injury more than year
before trial, no objective or clinical signs of damage remained and expert testified that head injury could
have affected infant's ability to play trumpet and that there was a slight possibility that it might continue to
bother him, court properly instructed jury to disregard all evidence as to infant's inability to play the
trumpet.
4. Damages.
Compensatory damages rest upon proof that injury or disability are natural and probable result of
accident in question.
5. Damages.
Infant was not entitled to recover for claimed impaired earning capacity in absence of expert testimony to
effect that disability would probably continue.
OPINION
On October 12, 1961, eight year old Jacob Gutierrez went to a service station to get a
candy bar from an automatic vending machine. He put his nickel in the slot, pulled the knob,
and the machine toppled over upon him. He was immediately taken to the hospital where a
two and a half inch laceration above his right eyebrow was sutured and a contusion to his
right knee treated. X-rays of his skull and knee were normal. He was released immediately.
The hospital bill was $59. About three weeks later Jacob's father, as guardian ad litem, filed a
damage suit against the service station operator and the vending machine company, charging
negligence and claiming a permanent disability from the accident. The case was finally tried
to a jury in December 1963. The record shows that for about one year before the accident
Jacob had been taking trumpet lessons and had progressed remarkably well. During the
summer preceding the accident he had played trumpet with the Las Vegas Summer Youth
Philharmonic Band and was considered the third best of eleven in the trumpet section. His
teacher, a professional musician, opined that Jacob had professional ability and a bright
musical future. Following the accident Jacob engaged in the normal activities of boys of his
age, and continued with his trumpet lessons. However, in March 1963 he discontinued the
lessons, primarily, he said, because of headaches experienced when blowing the trumpet.
Eight months before he had been sent to a neurologist. There is some doubt as to whether the
consultation was for treatment or to obtain a specialist for trial testimony. In any event, the
neurologist testified that, though Jacob may have sustained some brain damage, he had fully
recovered and would experience no future difficulty.
experience no future difficulty. When pressed, the doctor reduced his prognosis to a
percentage evaluation, stating I would say the chances of there being further difficulty from
this injury to be in the region of 2 to 3 percent which is a very small percentage. The doctor
also testified that the slight brain damage could have affected Jacob's ability to blow the
trumpet because one with a headache cannot blow hard. As the slight brain damage was no
longer ascertainable in September 1962, the doctor concluded his direct testimony, stating It
leaves you with a question, does he have a headache. The lower court, apparently believing
that Jacob's inability to play the trumpet was not shown to have been caused by an injury
sustained in the accident, instructed the jury to disregard all evidence received on that subject.
The jury returned its verdict for the plaintiff and awarded $200 as damages. The plaintiff's
motion for a new trial was denied, and this appeal followed.
[Headnotes 1-5]
The main contention in this court is that the lower court should not have so instructed the
jury.
1
The appellant's theme is that, had the jury been permitted to consider such evidence,
damages may have been allowed for future pain and suffering and for an impaired earning
capacity. The lower court's ruling was justified. Jacob was not permanently injured, nor did
he suffer a disability that would be with him for some period of time after the trial. The
medical witness testified that Jacob had fully recovered from his head injury more than a year
before trial. No objective or clinical signs of damage remained. Though Jacob complained
that his headaches continued to the time of trial, his testimony is not competent to allow
damages for future pain and suffering. Curti v. Franceschi, 60 Nev. 422, 111 P.2d 53, 112
P.2d 819. Where, as here, the disability is subjective in character {headaches, etc.) and not
demonstrable to others, expert testimony that the disability will probably continue is
needed before an award for future damage is permissible. Curti v. Franceschi, supra.
____________________

1
Appellant's brief also urged that the verdict should be set aside and a new trial ordered because it was in an
amount equal to the special damages and did not allow for general damages. He abandoned this contention
during oral argument because the $200 award did, in fact, exceed the special damages incurred.
is subjective in character (headaches, etc.) and not demonstrable to others, expert testimony
that the disability will probably continue is needed before an award for future damage is
permissible. Curti v. Franceschi, supra. A guess that Jacob's head injury could have affected
his ability to play the trumpet, a slight possibility that it might continue to bother him, a 2 or 3
percent chance, does not meet the legal standard. Compensatory damages rest upon proof that
they are the natural and probable result of the accident in question. Had Jacob's disability
been readily observable by the jurors, objective in nature rather than subjective, an award for
future pain and suffering might have been permitted without supporting medical opinion
evidence. Sierra Pacific v. Anderson, 77 Nev. 68, 358 P.2d 892; Annot., 135 A.L.R. 516.
However, his claim of injury is not of this character, and the rule announced in Curti v.
Franceschi, supra, controls. What we have said as to the legal insufficiency of the evidence to
show future pain and suffering applies with equal force to Jacob's claim that his earning
capacity was impaired. Of course, additional barriers exist to block this item of claimed
damage, but need not now be expressed.
Affirmed.
____________
80 Nev. 566, 566 (1964) Morrissett v. Morrissett
EDITH L. MORRISSETT, Appellant, v.
E. J. MORRISSETT, Respondent
No. 4781
December 14, 1964 397 P.2d 184
Wife brought action against husband for personal injuries sustained in automobile
accident. Husband's motion to dismiss was granted by the lower court and the wife appealed.
The Supreme Court, McNamee, J., held that common-law rule that wife cannot sue husband
for personal tort prevails in absence of permissive statute to contrary, and neither statute
relating to actions by or against a married woman nor statute granting wife right to sue
alone to enforce against third persons her common-law right to security of her person is
such a statute.
personal tort prevails in absence of permissive statute to contrary, and neither statute relating
to actions by or against a married woman nor statute granting wife right to sue alone to
enforce against third persons her common-law right to security of her person is such a statute.
Affirmed.
Gordon W. Rice and Leo P. Bergin, of Reno, for Appellant.
Goldwater, Taber and Hill, of Reno, for Respondent.
Common-law rule that wife cannot sue husband for personal tort prevails in absence of permissive statute
to contrary, and neither statute relating to action by or against married woman nor statute granting wife
right to sue alone to enforce against third persons her common-law right to security of her person is such a
statute. NRS 12.020, 41.170.
It is for legislature rather than court to change rule that wife cannot sue husband in tort.
OPINION
This is a tort action brought by Edith L. Morrissett against her husband, E. J. Morrissett, to
recover damages for personal injuries. The wife's complaint charges that while she was in the
car owned and being driven by her husband, he drove in a grossly negligent manner, causing
a collision with another automobile which also was being driven in a grossly negligent
manner. The husband's motion to dismiss the action upon the ground that no cause of action
against him was stated was submitted for decision on March 20, 1963 and the motion was
granted on June 11, 1964.
1
Judgment of dismissal was entered June 15, 1964.
Appeal is from the judgment of dismissal.
____________________

1
The record does not disclose the reason for this delay of almost 15 months.
[Headnote 1]
The sole question on appeal is whether Nevada should continue to follow the rule of
interspousal immunity for torts established in this state in the case of Kennedy v. Kennedy, 76
Nev. 302, 352 P.2d 833.
In Kennedy we upheld the common-law rule, which is the majority rule in the United
States, that there is no cause of action in favor of a wife against her husband sounding in tort.
It was there argued that NRS 12.020
2
and NRS 41.170
3
should be construed as giving the
wife a right to sue her husband for personal injuries resulting from his negligence. We
concluded however that the common-law rule that a wife cannot sue her husband for a
personal tort prevails in Nevada in the absence of a permissive statute to the contrary and that
neither NRS 12.020 nor NRS 41.170 is such a statute.
Also in Kennedy we cited with approval the case of Peters v. Peters (1909), 156 Cal. 32,
103 P. 219, 23 L.R.A., N.S., 699, and Watson v. Watson (1952), 39 Cal.2d 305, 246 P.2d 19,
which in construing a California code provision identical to NRS 12.020 held that there was
no intent to depart from the common law so as to authorize a suit by the husband or wife
against the other for injuries to the person or character.
In 1962, the California Supreme Court expressly overruled Peters and Watson.
____________________

2
NRS 12.020. Action by or against a married woman. When a married woman is a party, her husband must
be joined with her, except:
1. When the action concerns her separate property, or her right or claim to the homestead property, she may
sue alone.
2. When the action is between herself and her husband, she may sue or be sued alone.
3. * * *.

3
NRS 41.170. Option of husband and wife to sue jointly or separately. In cases where a wife sustains
personal injuries by reason of the negligence of another, suit may be brought by the husband and wife jointly or
separately at their option. When brought jointly, damages shall be segregated and those damages assessed by
reason of personal injuries and pain and suffering shall be awarded to and belong to the wife, and damages
assessed for loss of services and for hospital and medical expenses and other care shall be awarded to the
husband. In cases where the wife sues separately, all damages sustained by the wife shall be awarded to and
belong to the wife.
In Self v. Self, 26 Cal.Rptr. 97, 376 P.2d 65, the court held that at least for an intentional
tort one spouse may maintain an action against the other in California. In Klein v. Klein, 26
Cal.Rptr. 102, 376 P.2d 70, the Self rule was extended to negligent torts. Both of these cases
were influenced by legislative changes made since Peters and Watson, and particularly by the
1957 amendment of Cal.Civ.Code 163.5 which provides that all damages, special and
general, awarded a married person in a civil action for personal injuries, are the separate
property of such married person. We had before us NRS 41.170, a similar statute, when we
decided Kennedy, and we concluded as aforesaid that NRS 41.170 was not to be construed as
to permit a wife to sue her husband for a personal tort. That was the law in Nevada when
California chose in Self and Klein to disregard our construction of this type of statute.
[Headnote 2]
We feel that any change in the common-law rule of interspousal immunity with respect to
personal torts must be made by the legislature. Rubalcava v. Gisseman, 14 Utah 2d 344, 384
P.2d 389. To date, as shown by Kennedy and reiterated herein, its enactment of NRS 12.020
and NRS 41.170 have not effected such a change. As stated in the dissenting opinion of
Justice Schauer in Klein: When the Legislature sees fit to change the common law rule it is
ableas we are notto view the problem in all its ramifications and to provide the necessary
safeguards against abuses of the law.
Affirmed.
This case involves the common law rule of interspousal immunity for a negligent tort. In
Kennedy v. Kennedy, 76 Nev. 302, 352 P.2d 833, this court applied the common law rule of
immunity, pointing out that the legislature had not, by enacting NRS 12.020 or NRS 41.170,
authorized a wife to sue her spouse for a negligent tort. We are asked to reexamine the
validity of the common law principle in the light of today's conditions and to abandon it as
archaic and unreasonable; in short, to overrule Kennedy.
the common law principle in the light of today's conditions and to abandon it as archaic and
unreasonable; in short, to overrule Kennedy.
It seems to me that the reasons for discarding the rule greatly outweigh those given in its
support. At the moment, the states are almost evenly divided on the question. See Annot., 43
A.L.R.2d 647 (1955); 36 So. Cal.L.Rev. 456 (1963). Departure from the rule is the modern
trend and is advocated by eminent tort scholars. Prosser, Torts, 2d ed., pp. 670-675; Harper &
James, Torts, pp. 645, 646 (1956); McCurdy, Personal Injury Torts Between Spouses, 4
Vill.L.Rev. 303 (1959). The arguments for and against are fully articulated in the above
citations and, more recently, in Rubalcava v. Gisseman, 14 Utah 2d 344, 384 P.2d 389
(against abolition); Klein v. Klein, 26 Cal.Rptr. 102, 376 P.2d 70 (for abolition); and Cramer
v. Cramer, 379 P.2d 95 (Alaska 1963) (for abolition); and need not be repeated here.
However, I do wish to briefly mention one phase of the total problem which, in the
negligence area, persuades me to disagree with Kennedy and with the majority view in today's
case.
I am convinced that the common law rule of interspousal immunity encourages the trial of
negligence cases and discourages settlement. There is no sensible reason for treating this case
differently than the usual guest case against joint tort-feasors.
1
The great bulk of court
litigation today is in tort, and particularly tort cases arising out of motor vehicle accidents. By
far, most of these accidents involve more than one vehicle. Consequently, when a guest is the
claimant, he will seek to fasten liability upon the drivers of the colliding vehicles as joint
tort-feasors and, if successful, may obtain satisfaction of judgment from either or both. The
joint tort-feasors, as judgment debtors, do not enjoy any right of contribution. Gensler-Lee v.
Geertson, 73 Nev. 328, 318 P.2d 1113. The result, of course, is that sometimes the tort-feasor
least at fault may be required to pay the judgment. The result is justified, I suppose, because
of the difficulty encountered in attempting to compare negligence and distribute the
dollar loss as between joint defendants.
____________________

1
Of interest is the annotation in 2 A.L.R.2d 932 regarding Guest statute as applicable to member of family
riding in car driven by another member.
because of the difficulty encountered in attempting to compare negligence and distribute the
dollar loss as between joint defendants. This general scheme has proven to be reasonably
workable. The host-defendant is protected to the extent that his liability rests upon proof of
gross negligence, intoxication or willful misconduct (NRS 41.180), while the codefendant
may be found liable for ordinary negligence. In any event, the situation gives rise to the
possibility that two defendants may be liable to the guest. Because of this fact alone, the joint
defendants (or their insurance carriers) are encouraged to settle the claim, each sharing a part
of the loss. It is common knowledge, I think, that where two parties are available to share the
loss, settlement is more likely than where one defendant only is involved.
Yet this general scheme, which has worked fairly well through the years, cannot be applied
to the instant case, simply because the guest happens to be the wife of one of the drivers.
Settlement, instead of being encouraged, is frustrated. Our law absolves the spouse-driver
(host), even though grossly negligent, intoxicated, or guilty of willful misconduct, and directs
the guest to sue the other driver (Kennedy v. Kennedy, supra, and today's case) and then adds
the final touch by refusing to impute the conduct of the spouse-driver to the spouse-guest to
bar relief. L.A. & S.L.R. Co. v. Umbaugh, 61 Nev. 214, 123 P.2d 224; Fredrickson & Watson
Const. Co. v. Boyd, 60 Nev. 117, 102 P.2d 627. Settlement of such a case is not likely. The
driver from whom the spouse-guest is required to seek relief is not inclined to settle, for his
concurrent fault may be minor when compared to the fault of the spouse-driver. Trial is thus
encouraged by applying the rule of interspousal immunity. It seems preferable to treat the
spouse-guest in the same manner as any other guest. A wife or a husband should receive the
same kind of justice accorded a friend or a stranger who seeks to recover from his host under
the guest statute.
The possibility of collusion between husband and wife is not a sound reason for continuing
adherence to the rule of immunity. Photography, scientific investigative procedures, pre-trial
discovery, cross examination, etc., are usually adequate safeguards against the fabricated
claim.
are usually adequate safeguards against the fabricated claim. Trial courts and jurors are
sensitive to the trumped up charge. For these reasons, and for those expressed in Klein v.
Klein, supra, I dissent.
____________
80 Nev. 572, 572 (1964) Southern Pacific Co. v. Dickerson
SOUTHERN PACIFIC COMPANY, a Corporation; WESTERN PACIFIC RAILROAD
COMPANY, a Corporation; and UNION PACIFIC RAILROAD COMPANY,
a Corporation, Appellants, v. HARVEY DICKERSON, Attorney General
of the State of Nevada, Respondent.
No. 4803
December 14, 1964 397 P.2d 187
Judge.
Action against Attorney General for declaration that Full Train Crew Law does not require
fireman in diesel freight locomotive. The lower court dismissed the complaint, and plaintiffs
appealed. The Supreme Court, Badt, C. J., held that requirement of employment of fireman
did not apply to diesel locomotive where available and qualified head brakeman can perform
all duties necessary to safety of public and crew.
Reversed.
Marion B. Plant and Brobeck, Phleger & Harrison, of San Francisco, for Appellants.
Calvin M. Cory and Deaner, Butler & Adamson, of Las Vegas, for Appellant Union
Pacific Railroad Company.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Appellants Western
Pacific Railroad Company and Southern Pacific Company.
Robert L. Pierce, William R. Denton, Frederick E. Fuhrman, John J. Corrigan, of San
Francisco, for Appellant Southern Pacific Company.
Harvey Dickerson, Attorney General, for Respondent.
1. Declaratory Judgment.
Railroads' complaint against Attorney General, who had issued contrary opinion, for judgment declaring
that Full Train Crew Law did not require employment of firemen on diesel locomotives, presented
justifiable controversy. NRS 705.390.
2. Statutes.
Re-enactment of Full Train Crew Law after institution of use of diesel engines did not require
interpretation that requirement of employment of firemen applied to diesel locomotives, where latest
re-enactment followed judicial determination that requirement did not apply to Budd cars. NRS 705.390.
Judicial construction of Full Train Crew Law so as to exempt diesel locomotives from fireman
requirement was not judicial repeal in violation of constitutional separation of powers, since act remained
effective as to steam locomotives. NRS 705.390.
4. Railroads.
Full Train Crew Law requirement of employment of fireman did not apply to diesel locomotive where
available and qualified head brakeman can perform all duties necessary to safety of public and crew. NRS
705.390.
OPINION
Plaintiffs (appellants herein) filed their complaint in the court below seeking declaratory
relief in a judgment declaring (1) that NRS 705.390, properly construed, does not require the
employment of firemen on appellants' diesel freight locomotives; (2) that if construed to
require such employment, it would violate the due process clause (Art. 1, 8) of the Nevada
Constitution.
This appeal is from an order dismissing the complaint. The trial judge was of the opinion
that NRS 705.390 requires the employment of a fireman on appellants' diesel freight
locomotives when operating outside of yard limits, and that the requirement does not violate
due process.
The statute in question is known as the Full Train Crew Law and reads as follows:
705.390 Full train crew required: Crews of four or five persons; protection of flagmen
employed on April 1, 1963.
1. It shall be unlawful for any person, firm, company or corporation engaged in the
business of common carrier, operating freight and passenger trains, or either of them, within
or through the State of Nevada, to run or operate, or permit or cause to be run or operated,
within or through this state, along or over its road or tracks, other than along or over the road
or tracks within yard limits:
(a) Any freight or passenger train consisting of two cars or less, exclusive of caboose and
engine and tenders, with less than a full crew consisting of not less than four persons, to wit,
one engineer, one fireman, one conductor, and one brakeman * * *.
Section 1(b) of this statute requires a full crew of one engineer, one fireman, one
conductor, and two brakemen for trains of three or more and less than 50 cars; section 1(c)
requires the same on trains of more than 50 cars; and section 2 applies to flagmen.
The complaint alleges that the statute was enacted long prior to the invention and
development of diesel locomotives and at a time when all trains operating in Nevada were
drawn by steam locomotives that the term fireman referred to an employee assigned the
function of attending the fire and maintaining the steam pressure on a steam locomotive; that
all freight trains now operated by plaintiffs in or through the State of Nevada, or which will
so be operated within the predictable future are and will be drawn by diesel locomotives; that
on such diesel locomotives there is no fire to attend and no steam pressure to be maintained;
that on all of plaintiffs' said freight trains drawn by diesel locomotives, there is stationed in
the cab of the locomotive an employee known as the head brakeman because of his station
at the head of the train; that each of the plaintiffs requires that the head brakeman remain in
the cab of the locomotive at all times while the train is in motion between terminals, and that
he is there available, and is fully qualified, to perform all duties, including duties relating
to safety, that might require the presence in the cab of the locomotive of an employee
other than engineer.
is there available, and is fully qualified, to perform all duties, including duties relating to
safety, that might require the presence in the cab of the locomotive of an employee other than
engineer.
Respondent moved to dismiss the complaint on the grounds (1) that it failed to state a
claim; (2) that no justiciable issue existed warranting declaratory relief; (3) that defendant is
not charged with the duty of enforcing the statute; but (4) that the Public Service Commission
is charged with the duty of supervising and regulating the operation of railroads in the state.
1

For the purposes of the motion to dismiss, the allegations of the complaint must of course
be accepted as true.
The situation that gave rise to the prayer for declaratory relief was as follows:
Pursuant to Public Law 88-108, enacted by the Congress of the United States on August
28, 1963, plaintiffs and other railroads, and unions representing operating personnel of said
railroads, including the union representing firemen, submitted to a Board of Arbitration
constituted as provided in said Public Law 88-108 certain disputes, including a dispute
regarding the employment of firemen on freight trains drawn by diesel locomotives, and on
November 26, 1963, the said Board of Arbitration rendered its award, a true and correct copy
of which, together with the opinions of the members of said Board, is set forth as an exhibit
attached to the complaint. In and by the terms of said award, the said Board found that
firemen are not necessary for safety or other purposes on freight trains drawn by diesel
locomotives and provided for the elimination of firemen from such trains, including said
freight trains operated by plaintiffs in or through the State of Nevada, at the times and in the
manner therein set forth. Each of the plaintiffs has given to the local chairman of the union
representing firemen in each fireman-seniority district a list of pool and regularly assigned
engine crews, as provided in Part II-B {1) of said award, and plaintiffs intend to, and will,
proceed in the manner prescribed by said award with the elimination of firemen from
diesel-powered freight trains operated by them in or through the State of Nevada unless
precluded from doing so by said Nevada Full Crew Law.
____________________

1
In his brief and oral argument respondent has relied only on the first ground mentioned. The motion states
other grounds, but such additional grounds are simply argumentative and require no consideration. This opinion,
then, is restricted to the first ground above named.
crews, as provided in Part II-B (1) of said award, and plaintiffs intend to, and will, proceed in
the manner prescribed by said award with the elimination of firemen from diesel-powered
freight trains operated by them in or through the State of Nevada unless precluded from doing
so by said Nevada Full Crew Law.
The complaint then alleges that certain questions as to the construction and validity of the
said Nevada Full Crew Law have arisen between plaintiffs on the one hand and defendant on
the other, more particularly: that plaintiffs contend that the requirement that a fireman be
employed relates to trains drawn by steam locomotives and, properly construed, does not
require the employment of a fireman on a diesel freight locomotive operating with a head
brakeman stationed in the cab; and that if said Nevada Full Crew Law were construed to
require the employment of a fireman on a diesel freight locomotive operating as aforesaid,
such requirement would deprive plaintiffs of their property without due process of law in
violation of Art. 1, 8, of the Nevada Constitution; that the defendant, as attorney general of
the State of Nevada, on or about May 18, 1964, issued his opinion No. 137, directed to the
chairman of the Public Service Commission of the State of Nevada, to the effect that unless
and until the courts shall have held otherwise, the said Nevada Full Crew Law be treated as
requiring the employment of firemen of freight engines drawn by diesel locomotives and
operated by plaintiffs.
[Headnote 1]
(1) Thus it is clear that there was a justiciable controversy and a complaint for declaratory
relief was in order. Kress v. Corey, 65 Nev. 1, 189 P.2d 352; Clark County v. State, 65 Nev.
490, 199 P.2d 137.
(2) The second and main issue for determination is whether the Nevada Full Crew Law
enacted in 1913 (Stats. Nev. 1913, ch. 74,
2
now NRS 705.390), the pertinent portion of
which is quoted supra, may be properly applied to diesel engines pulling freight trains.
____________________

2
It had its origin in earlier statutes. (See Stats. Nev. 1909, ch. 74; Stats. Nev. 1911, ch. 18, ch. 204.)
applied to diesel engines pulling freight trains. In Western Pacific R.R. Co. v. State, 69 Nev.
66, 241 P.2d 846, 45 A.L.R.2d 436, this court held in 1952 that the statute did not require
employment of a fireman on a passenger car (therein known as and called Budd car)
propelled by a diesel engine. Respondent seeks to distinguish this case by reason of the fact
that the Budd car was a single, self-propelled passenger car. However, the opinion of this
court in that case shows that the decision is not restricted to a single car train but applies
particularly to diesel locomotives such as are employed on the trains that are dealt with here.
We held in the Western Pacific case that the statute passed in 1913 must be accorded a
meaning compatible with the conditions and circumstances then existing and the plain,
evident policy and purview of the act.' Id. 69 Nev. 68, 241 P.2d 847.
In the Full Crew Law of Nebraska discussed in Bressler v. Chicago & N.W. Ry. Co., 152
Neb. 732, 42 N.W.2d 617, 619, we quoted the Supreme Court of Nebraska as follows:
* * * the act provides that passenger trains, depending on their size, must always be
manned and operated by a certain number of employees classified according to the duties they
perform. By so doing the Legislature recognized that in order to secure the maximum of
safety in the operation thereof certain duties must always be performed by someone qualified
to perform them. The act does not actually specify what these duties are but, in the absence
thereof, it can only mean such duties as are generally associated with such positions by
custom and practice.'
We then referred to the 1913 act and recognized the legislative intent that in the proper
operation of a railroad certain duties must in the interest of public safety be regularly
performed; that they must be performed by qualified persons; that a sufficient crew must be
provided so that one member need not assume the duties ordinarily assigned to another where
such assumption would interfere with the regular performance of his own essential duties.
We then added:
By the language which is used the legislature indicated that it was the performance of
essential duties with which it was concerned.
* * * * *
To impute to the legislature an intent to require employment of a fireman in the absence
of such duties would in effect be to impute an intent that these duties continue to be
performed notwithstanding conditions rendering them wholly unnecessary. In the light of the
language used and since the express purpose of the act is public safety, this would indeed be
an absurd result.
The opinion continued: The duties [of the railroad fireman] divided themselves into two
classes: fueling and lookout.
As to the first: The steam, source of the propulsion power of the steam locomotive, is
generated in a horizontal boiler from water brought to the boiling point by the application of
heat from a fire maintained in a firebox located at the rear of the boiler and opening into the
cab of the locomotive. Historically, wood was the first fuel used to feed the fire, later
supplanted by coal and, still later in some locomotives, by oil. To furnish a supply of the fuel,
a vehicle known as a tender is towed behind the locomotive. The duties of the fireman in
wood or coal-fired locomotives are to feed the fuel to the fire, and to make sure that there is a
proper level of water in the boiler.
We then discussed the development of the automatic stoker and the later development of
the oil-fired locomotive, both of which required the performance of particular duties by the
fireman. The opinion in Western Pacific then continued as follows:
As to the second: The location of the steam boiler to the front of the cab creates an
obstruction to the vision of anyone occupying the cab. The engineer's station is on the right of
the cab and without deserting his controls it is impossible for him to observe the left side of
the track or of the train.
side of the track or of the train. The fireman thus is given the responsibility of being the eyes
and ears of the engineer on the left side of the train.' When not occupied with fueling duties,
his lookout duties are constant.
* * * * *
In operation of the Budd railroad Diesel car no fueling duties are required of any crew
member. There is no fire to maintain for steam pressure. There is no water level to watch. The
engines, similar to those used on many busses, are located underneath the car and are
inaccessible from the cab. The fueling, as in gasoline engines, is automatic. Likewise the
essential lookout duties as known to typical steam operation do not exist in the Budd car.
There is no boiler to obstruct the engineer's view. The cab is located at the very front of the
car. Through four windows to the front and side of the cab and two rearview mirrors, the
engineer from his seat has an unobstructed view to the front, side and rear, superior to the
combined views of both engine crewmembers when stationed behind a steam boiler. It is
clear that the essential duties of the fireman as known to the 1913 legislature no longer
remain to be performed in the Budd car.
These conditions apply equally with reference to diesel engine drawn freight trains. We
thereupon referred with approval to Railroad Commission v. Texas & New Orleans R. Co.,
Tex.Civ.App., 42 S.W.2d 1091, and Moredick v. Chicago & Northwestern Railway Co., 125
Neb. 864, 252 N.W. 459, as being directly in point.
The annotation to this case in 45 A.L.R.2d 436, et seq., collects other cases and fully
sustains our Western Pacific holding. See particularly Northern Pacific Railway Co. v.
Weinberg, DC Minn., 53 F.Supp. 133; Oregon, C. & E. R. Co. v. Blackmer, 154 Or. 388, 59
P.2d 694.
[Headnote 2]
(3) It is contended by respondent that Nevada's re-enactment of the statute in 1957 and
1963 displaces or removes the conclusion in Western Pacific v. State as to the intention of
the legislature in 1913, as appellants were utilizing diesel engines prior to 1963.
or removes the conclusion in Western Pacific v. State as to the intention of the legislature in
1913, as appellants were utilizing diesel engines prior to 1963. However, under
well-recognized rules of construction, the legislature in re-enacting the law in 1963 did so
with the interpretation placed upon it by this court in 1952 in the Western Pacific case. This is
the clear holding in Railroad Commission v. Texas & New Orleans R. Co., Tex.Civ.App., 42
S.W.2d 1091, where such a situation is discussed at great length. Almost 20 years later the
Texas case was approved in Bressler v. Chicago N.W. Ry. Co., 152 Neb. 732, 42 N.W.2d
617, and was referred to as containing a very full and complete discussion of this same
question. It may be noted that the Bressler case asserts as an additional reason for holding an
earlier interpretation of the legislative intent to be proper that there have been numerous
sessions of the legislature when it could have specifically [otherwise] provided. And such is
the case here.
[Headnote 3]
(4) Respondent argued that such holding by this court would be in effect a judicial repeal
of a legislative act and in violation of the constitutional separation of powers. Such however
is not the case. The act is still effective as to trains with steam engines.
[Headnote 4]
(5) In our conclusion that the 1913 act requiring a fireman to be in the cab with the
engineer does not apply to diesel engines where an available and qualified head brakeman can
perform all the duties necessary to the safety of the public and the crew, it becomes
unnecessary for us to pass on appellants' contention that if the act applied to diesel engines it
would violate the constitutional requirements as to due process. We may remark, however,
that our language in Western Pacific strongly indicated that such would be the case, and that
it would likewise be an unreasonable and unlawful exercise of the police power.
The order of the district court sustaining the motion to dismiss was error and is hereby
reversed. The cause is hereby remanded with directions to deny the motion to dismiss the
complaint and for further proceedings not contrary to the view herein expressed.
is hereby remanded with directions to deny the motion to dismiss the complaint and for
further proceedings not contrary to the view herein expressed.
____________
80 Nev. 581, 581 (1964) Hancock v. State
GILBERT HANCOCK, Appellant, v.
No. 4739
December 15, 1964 397 P.2d 181
Appeal from judgment of the Eighth Judicial District Court, Clark County; David Zenoff,
Judge.
Defendant was convicted in the trial court of second-degree murder, and he appealed. The
Supreme Court, Thompson, J., held that in prosecution under open murder charge, not
specifying degree of crime, general intent instruction was appropriate for included offense of
manslaughter and second-degree murder, while instruction on specific intent required for
first-degree murder was proper, and further instruction that what was said about general intent
did not apply to first-degree murder was unnecessary.
Judgment affirmed.
Robert Santa Cruz, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Carson City; and Edward G. Marshall, Clark
County District Attorney, and William E. Freedman and Raymond D. Jeffers, Clark County
Deputy District Attorneys, Las Vegas, for Respondent.
1. Homicide.
Doctor's opinion that victim of knifing would have lived but for neck incision was sufficient proof of
cause of death to sustain conviction of second-degree murder. NRS 200.010.
2. Homicide.
In prosecution under open murder charge, not specifying degree of crime, general intent instruction was
appropriate for included offenses of manslaughter and second-degree murder, while
instruction on specific intent required for first-degree murder was proper, and further
instruction that what was said about general intent did not apply to first-degree
murder was unnecessary.
included offenses of manslaughter and second-degree murder, while instruction on specific intent required
for first-degree murder was proper, and further instruction that what was said about general intent did not
apply to first-degree murder was unnecessary. NRS 7.260, subd. 3, 200.010, 200.030, subd. 1, 200.050,
200.070.
3. Costs.
Counsel appointed to prosecute appeal was entitled to certificate to enable him to recover enlarged
compensation to be graduated on a scale corresponding to sums already allowed. NRS 7.260, subd. 3.
OPINION
On Christmas Day 1962 Hancock and one Livingston Johnson engaged in a fight which
ended rather abruptly when Hancock, using a straight razor, cut the left side of Johnson's neck
from behind and above the left ear down to the midline just below the Adam's applean
incision about 8 inches long, shallow at the upper and lower margins, but about one-half inch
in depth at the mid-portion. Johnson died about noon on December 26, 1962. Subsequently
Hancock was charged with murder (NRS 200.010). A jury found him guilty of murder of the
second degree and, following judgment, Hancock was sentenced to the State Prison for not
less than 10 years, which term may be extended to life. (NRS 200.030, subsec. 4.) He
appeals.
[Headnote 1]
The main contention is that the evidence is not sufficient to prove that the neck incision
caused Johnson's death. It is true that some of the evidence indicates that the neck wound did
not produce excessive bleeding, nor were vital structures damaged by the incision. The
wound was surgically repaired the following day, and the patient's condition was believed to
be satisfactory. However, the pathologist who performed an autopsy, testified that the
underlying cause of death was the neck wound which resulted in acute heart failure and
pulmonary edema (the collection of fluid in the lungs) which were the direct causes."
which were the direct causes. He stated further that, in his opinion, Johnson would have
lived but for the incised wound. The doctor's opinion supplies the requisite proof.
[Headnotes 2, 3]
The other claim of error is that the trial court should not have given instructions on general
intent and specific intent without giving a third instruction stating that the instruction on
general intent does not relate to crimes which require proof of specific intent.
1
Here the
defendant was faced with an open murder charge. The degree of the crime was not specified.
Accordingly, the jury was instructed concerning the elements of first and second degree
murder, and manslaughter, voluntary and involuntary. The crime of manslaughter does not
require the specific intent to kill (NRS 200.050, voluntary manslaughter; NRS 200.070,
involuntary manslaughter; State v. Lewis, 59 Nev. 262, 91 P.2d 820, involuntary
manslaughter); and the general intent instruction quoted in the footnote was not inappropriate
for that crime. The instruction was similarly compatible with the crime of second degree
murder, in which instance a specific intent to kill need not be found. NRS 200.010; NRS
200.030 (1); State v. Holdaway, 56 Nev. 278, 48 P.2d 420. On the other hand, first degree
murder usually requires a willful, deliberate and premeditated killinga specific intent to
killand the instruction so stating was properly given. There was no need to further
encumber the record by adding another instruction to the effect that what was said about
general intent does not apply to first degree murder. If the offense involved would, in any and
all events, require a specific intent, then, of course, it would have been erroneous to instruct
about general intent (People v. Geibel, 93 Cal.App.2d 147, 208 P.2d 743; People v. Booth,
111 Cal.App.2d 106, 243 P.2d 872) for, in such a case, the defendant could be convicted
without evidence or a finding of the specific intent required.
____________________

1
The general intent instruction stated: In every crime or public offense, there must be a union or joint
operation of act and intention, or criminal negligence. Intention is manifested by the circumstances connected
with the perpetration of the offense, and the sound mind and discretion of the person accused.
convicted without evidence or a finding of the specific intent required. However, the case
before us is not such a case. The judgment below is affirmed. Appellant's counsel was
appointed by the trial court to prosecute this appeal. We direct the lower court to give him the
certificate specified in subsection 3 of NRS 7.260 to enable him to recover an enlarged
compensation to be graduated on a scale corresponding to the sums already allowed. State v.
Nystedt, 79 Nev. 24, 377 P.2d 929.
Affirmed.
____________
80 Nev. 584, 584 (1964) Ex Parte Abbatangelo
In the Matter of the Petition of DAVID D. ABBATANGELO for Review of application for
Admission to the State Bar of Nevada, 1962.
No. 4657
December 18, 1964 397 P.2d 182
Proceeding in the matter of the application of David D. Abbatangelo for admission to the
State Bar of Nevada.
Petition to review Board of Bar Examiners' recommendation that petitioner's application
for admission to state bar be denied. The Supreme Court, McNamee, J., held that evidence as
to conduct of member of bar of sister state did not justify Board of Bar Examiners,
recommendation that application for admission to state bar be denied.
Admission ordered.
Bible, McDonald & Carano, and Thomas R. F. Wilson II, of Reno, for Petitioner.
Howard L. Cunningham, Chairman, Board of Bar Examiners, and Robert R. Herz,
Executive Secretary, State Bar of Nevada, of Reno, for State Bar of Nevada.
Attorney and Client.
Evidence as to conduct of member of bar of sister state did not justify Board of Bar Examiners'
recommendation that application for admission to state bar be denied.
OPINION
Pursuant to Rule 55 of Supreme Court Rules petitioner filed a petition for review with this
court to which the Board of Bar Examiners filed an answer.
It appears therefrom that petitioner, with the permission of said board, took the 1962 bar
examination subject however to further character investigation by the board. He successfully
passed the examination. Thereafter petitioner was interviewed by the board and upon
receiving from the board a recommendation that he be denied admission this court on May
22, 1963 entered its order that petitioner's application for admission to the State Bar of
Nevada be denied.
On September 9, 1963 this court entered its order that the board reconsider the application
in light of new evidence on behalf of petitioner. After again interviewing petitioner the board
submitted a supplemental report again recommending that petitioner's application for
admission be denied. On December 27, 1963 this court entered its order denying said
application and it is because of that order that the petition for review herein was filed.
That particular evidence relied upon by the board in recommending the denial of
petitioner's application for admission to the state bar is as follows:
Evidence was introduced to show that in Pittsburgh, Pennsylvania, he signed the name of
his then wife, Victoria Abbatangelo, to a bank loan application and promissory note without
disclosing to the bank the fact that her signature was not genuine but was written by
petitioner; that soon thereafter he departed from Pennsylvania, where petitioner was a
practicing attorney, and came to Nevada for a divorce, and that while in Nevada he failed to
support his wife and children; that after obtaining a divorce in Nevada he married his
present wife and failed to comply with the provisions in the divorce decree for child
support and alimony.
after obtaining a divorce in Nevada he married his present wife and failed to comply with the
provisions in the divorce decree for child support and alimony.
The evidence tends to show that it was common practice for petitioner to sign his wife's
name to legal documents and that he did so with her consent. This was particularly true with
notes executed to Duquesne City Bank in Pennsylvania prior to the time of the application for
the loan to the Pittsburgh bank. The Duquesne bank knew of petitioner's habit in this regard.
The note given to the Pittsburgh bank was satisfied by petitioner's parents after he had left for
Las Vegas.
Much of the testimony taken before the board has to do with this situation. The situation
was first called to the attention of the board by Victoria Abbatangelo when she communicated
with the board and accused the petitioner of forging her name to several obligations. Later
however she made an affidavit which showed that her accusation of forgery was done for the
sole purpose of aggravating petitioner; that she was well aware of all bank loans obtained by
petitioner when signing her name; that she purchased items with the proceeds of these loans;
and that petitioner was of high moral professional character.
One has but to read the record herein properly to conclude that the conduct of petitioner
resulting in the adverse recommendation of the board was due chiefly to the situation created
by Victoria's conduct. Her failure to heed her marriage vows resulting in petitioner's
determination to seek a Nevada divorce, and her spiteful and admittedly malicious
communications designed to damage petitioner's reputation, naturally resulted in an
impairment of petitioner's earning ability.
The failure of the petitioner to pay child support and alimony during part of the time after
he left Pennsylvania was not a matter of choice. It appears to us that the situation in
Pennsylvania, as a result of the conduct of Victoria, was as relating to petitioner intolerable.
After arriving in Nevada his total income between September 1, 1961 and December 23, 1961
was about $600.
During the following month he was unemployed. From January 27, 1962 until the end of
April 1962 he earned approximately $300 per month. From April through August 1962 he
made small monthly payments to Victoria for support. In October 1962 she received $500
which had been owed to petitioner and which he directed to be paid to her. During these
times petitioner's parents aided in the support of Victoria and the children. Subsequent to the
action of the board, petitioner borrowed money and paid all existing obligations for alimony
and child support. We believe that under the circumstances of this case, and particularly
because of the conduct of Victoria, petitioner should not be penalized to the extent of denying
him admission to the Nevada state bar because of said delinquency regarding alimony and
child support. Although he did sign his wife's name in connection with the Pittsburgh bank
loan, it is apparent that he did it with her consent and there is no evidence that he intended to
defraud the bank.
The board in its report to this court stated that its adverse recommendation was in part due
to the demeanor of petitioner during its interviews with him. We do not believe that the
unfavorable impression he gave to the board even considered in connection with the other
unfavorable evidence should be a cause for denial of petitioner's application for admittance to
practice law in Nevada. Our reason for such conclusion stems from the fact that the record is
entirely bare of any professional misconduct while petitioner practiced law in Pennsylvania or
of any unethical conduct in connection with his employment in Las Vegas. In fact, petitioner's
good moral character is supported by communications from many Pennsylvania and Las
Vegas attorneys. Furthermore, it was represented to this court during oral argument by
counsel for the board that the board did not believe that petitioner was actively immoral
and that it did not feel strongly about its adverse recommendation.
The recommendation of the Board of Bar Examiners that petitioner be denied admission
is rejected, and we conclude that petitioner is entitled to practice law in the State of
Nevada.
that petitioner be denied admission is rejected, and we conclude that petitioner is entitled to
practice law in the State of Nevada. It is so ordered.
____________
80 Nev. 588, 588 (1964) Laxalt v. Cannon
PAUL LAXALT, Contestant, v. HOWARD
W. CANNON, Defendant.
No. 4847
December 22, 1964 397 P.2d 466
Election contest for the office of United States Senator. Original proceedings. On motion
to dismiss the election contest.
The Supreme Court, Thompson, J., held that jurisdiction of United States Senate to judge
election contest for office of United States senator is supreme and exclusive and state court
has no jurisdiction in the matter.
Motion granted.
Cameron M. Batjer, Peter D. Laxalt, Robert List, and John Tom Ross, of Carson City;
John W. Diehl, of Fallon; Clark J. Guild, Jr., of Reno; and On the Brief H. Russell Thayer, of
Carson City, for Contestant.
Harry E. Claiborne, Foley Brothers, and George Rudiak, of Las Vegas; Woodburn,
Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Defendant.
1. United States.
Jurisdiction of United States Senate to judge election contest for office of United States senator is
supreme and exclusive and state court has no jurisdiction in the matter. NRS 293.395, subd. 3, 293.403,
293.407; U.S.C.A.Const. art. 1, 4, 5; Const. art. 4, 6.
2. United States.
In exercising its jurisdiction in election contests for position of United States senator, United States
Senate acts in judicial capacity with full power to ascertain facts, compel attendance of witnesses, examine
witnesses, issue warrants of arrest, etc., and its determination is beyond authority of any other tribunal to
review. U.S.C.A.Const. art. 1, 4, 5.
3. United States.
Constitutional provision precludes state court from judging election contest involving a congressional
office. U.S.C.A.Const. art. 1, 4, 5.
4. States.
State constitutional provision that each House shall judge qualifications, elections and returns of its own
members deprives state courts of jurisdiction to decide contest for state legislative offices. Const. art. 4,
6.
5. Courts.
Implicit in concept of jurisdiction is power of court to make binding determination of case or controversy
before it.
OPINION
This is an election contest for the office of United States Senator. It was commenced
originally in this court. Paul Laxalt and Howard W. Cannon were opposing candidates for
that office in the general election held November 3, 1964. In accordance with NRS
293.395(2) this court met with the Secretary of State on November 25, 1964, to canvass the
vote. The Canvass showed Cannon to have won the election by a narrow margin. Laxalt made
timely demand for a recount of the vote (NRS 293.403), and a statewide recount was
conducted over a three day period and completed on December 2, 1964. The recount also
showed Cannon to have won the election by a narrow margin, though slightly greater than
before. On December 3, 1964, Laxalt filed a statement of contest with this court (NRS
293.407). On December 4, 1964, Governor Sawyer issued a certificate of election to Senator
Cannon (NRS 293.395(3)). Subsequently, Senator Cannon filed a motion to dismiss this
election contest, contending that this court does not have jurisdiction to decide it. Arguments
on the motion to dismiss were presented December 10, 1964. As the need for an early
decision was pressing, we departed from normal practice and decided the controversy that
day, granting the Senator's motion to dismiss. This opinion is in explanation of that decision.
[Headnotes 1-3]
Senator Cannon's motion to dismiss the election contest is bottomed upon the express
language of the Constitution of the United States, Art. I, 5, stating that, Each House shall
be the Judge of the Elections, Returns and Qualifications of its own Members; * * *.
Because of that language it is his position that only the Senate of the United States has the
power to judge the election and returns of a United States senatorial election. A fortiori, a
state court is precluded from doing so. On the other hand, Laxalt, relying upon Art. I, 4 of
the United States Constitution which provides that the Times, Places and Manner of Holding
Elections for Senators and Representatives, shall be prescribed in each State by the
Legislature thereof;
* * * argues that an election contest pursuant to a state statute is part of the total election
process contemplated by Art. I, 4. While conceding that the ultimate power to judge and
determine the winner of a senatorial race rests with the Senate, Laxalt finds no dilution of that
power by permitting a state court first to decide the controversy as an aid to the final decision
of the Senate. Authority overwhelmingly supports Senator Cannon's position. Belknap v.
Board of Canvassers, 94 Mich. 516, 54 N.W. 376; State v. Zimmerman, 249 Wis. 237, 24
N.W.2d 504; Smith v. Polk, 135 Ohio St. 70, 19 N.E.2d 281; In re Opinion to The Governor,
41 R.I. 209, 103 A. 513; State v. Crawford, 28 Fla. 441, 10 So. 118; Odegard v. Olson, 264
Minn. 439, 119 N.W.2d 717; In re Williams' Contest, 198 Minn. 516, 270 N.W. 586;
Burchell v. State Bd. of Election Comm'rs, 252 Ky. 823, 68 S.W.2d 427; Sutherland v.
Miller, 79 W. Va. 796, 91 S.E. 993; Annot., 107 A.L.R. 205. Indeed we find no contrary
holding. The contestant's point of view is supported only by the obiter dicta of a concurring
opinion in Odegard v. Olson, supra. The jurisdiction of the Senate to judge an election contest
for the office of United States Senator is supreme and exclusive. In exercising such
jurisdiction the Senate acts in a judicial capacity with full power to ascertain facts, compel the
attendance of witnesses, examine witnesses, issue warrants of arrest, etc., and its
determination is beyond the authority of any other tribunal to review.
tribunal to review. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73
L.Ed. 867. The constitutional grant of judicial power to the Senate in this limited area,
precludes a state court from judging an election contest involving a Congressional office.
Smith v. Polk, supra; Burchell v. State Board of Election Commissioners, supra.
[Headnote 4]
The general scheme of the federal constitution finds its counterpart in our state
constitution, Art. 4, 6, providing that Each House shall judge of the qualifications,
elections and returns of its own members * * *. It is equally well settled that such a state
constitutional provision deprives the state courts of jurisdiction to decide election contests for
state legislative offices. See Annot., 107 A.L.R. at 209. Of course, in Nevada the legislature
has provided that such a contest shall be tried in either the state assembly or the state senate,
depending upon the office in controversy. NRS 293.427. Because of the federal and state
constitutional demands, it is doubtful that the legislature, by enacting NRS 293.407 (pursuant
to which the instant contest was filed), ever intended that it embrace a contest for a seat in the
United States Senate or House of Representatives. However, we need not decide the question
of legislative intent.
[Headnote 5]
We believe it appropriate to add an additional comment. Implicit in the concept of
jurisdiction is the power to make a binding determination of the case or controversy before
the court. Traditionally a court will not render an advisory opinion unless empowered to do so
by the organic law of the jurisdiction in which it sits. The contestant concedes that the United
States Senate has the final authority, but argues that it is not exclusive. For this additional
reason, we do not hesitate to declare that Art. I, 5 of the United States Constitution invests
the Senate of the United States with the supreme and exclusive jurisdiction to judge the
election contest here presented. We see no justifiable reason to undertake a purely advisory
function.
What we have written disposes of the matter before us. Yet we must call attention to
another question. As heretofore stated, this election contest was commenced originally in this
court, as provided by NRS 293.407. We entertain serious doubt as to the authority of the
legislature to enlarge the original jurisdiction of this court beyond that granted by the Nevada
Constitution, Art. 6, 4.
1
However, this point was not raised in the proceeding before us and
we do not now decide it. We invite legislative attention to the problem in order that
appropriate provision for future election contests may be fashioned.
____________________

1
Nev. Const. Art. 6, 4 reads: Jurisdiction of supreme court; appointment of district judge to sit for
disqualified justice. The supreme court shall have appellate jurisdiction in all cases in equity; also in all cases at
law in which is involved the title, or the right of possession to, or the possession of, real estate or mining claims,
or the legality of any tax, impost, assessment, toll or municipal fine, or in which the demand (exclusive of
interest) or the value of the property in controversy, exceeds three hundred dollars; also in all other civil cases
not included in the general subdivisions of law and equity, and also on questions of law alone in all criminal
cases in which the offense charged is within the original jurisdiction of the district courts. The court shall also
have power to issue writs of mandamus, certiorari, prohibition, quo warranto,and habeas corpus and also all
writs necessary or proper to the complete exercise of its appellate jurisdiction. Each of the justices shall have
power to issue writs of habeas corpus to any part of the state, upon petition by, or on behalf of, any person held
in actual custody, and may make such writs returnable, before himself or the supreme court, or before any
district court in the state or before any judge of said courts.
In case of the disability or disqualification, for any cause, of the chief justice or either of the associate
justices of the supreme court, or any two of them, the governor is authorized and empowered to designate any
district judge or judges to sit in the place or places of such disqualified or disabled justice or justices, and said
judge or judges so designated shall receive their actual expense of travel and otherwise while sitting in said
supreme court.
See also Stephens v. Bank, 64 Nev. 292, 304, 182 P.2d 146, 151, where, inter alia, it is stated, This court
has original jurisdiction only as to the issuance of writs of mandamus, certiorari, prohibition, quo warranto and
habeas corpus; also all writs necessary or proper to the complete exercise of its appellate jurisdiction. All other
jurisdiction of this court is appellate. We have no jurisdiction to try cases, either civil or criminal.
See also King v. Board of Regents, 65 Nev. 533, 545, 200 P.2d 221, 226-227, where this court quoted with
approval the following passage from State v. Douglass, 33 Nev. 82, 110 P. 177 Every constitutional officer
derives his power and authority from the Constitution, the same as the Legislature does, and the Legislature, in
the absence of express constitutional authority, is as powerless to add to a constitutional office duties foreign to
that office, as it is to take away duties that naturally belong to it.
legislative attention to the problem in order that appropriate provision for future election
contests may be fashioned. We have in mind election contests for offices other than United
States Senator, United States Congressman, State Senator, State Assemblyman, Governor,
Lieutenant Governor, and Justice of the Supreme Court, for which provision is separately
made by the Federal Constitution (as to United States Senator and Congressman) and by the
State Constitution and statute for the other offices mentioned.
The defendant's motion to dismiss this election contest is granted.
____________
80 Nev. 593, 593 (1964) Goddard v. Streeter
J. M. GODDARD, Appellant, v. JACK STREETER, Trustee for the Hughes Porter
Corporation, and HUGHES PORTER CORPORATION, Respondents.
No. 4789
December 29, 1964 397 P.2d 621
Craven, Judge.
Action upon a check made subject to release of a writ of garnishment. The trial court
entered judgment for defendants and plaintiff appealed. The Supreme Court, Badt, C. J., held
that check in effect made subject to release of a writ of garnishment was not enforceable
where the express condition of liability did not occur.
Affirmed.
Bradley & Drendel, of Reno, for Appellant.
Streeter, Sala, Richards & McAuliffe, of Reno, for Respondents.
1. Bills and Notes.
A contract whereby a check was made payable upon a release of a writ of garnishment was not, contrary
to public policy.
2. Bills and Notes.
A check in effect made subject to release of a writ of garnishment was not enforceable where the express
condition of liability did not occur.
OPINION
This is an appeal from a judgment based upon a check in the face amount of $60,000
executed by Jack Streeter, Trustee, in favor of Raymor, Inc. On the face of the check appear
the words Subject to terms on reverse side. On the reverse side of the check appeared the
following: Subject to the writ of garnishment served on Jack Streeter and Hughes Porter
Corporation out of case No. 204932, Department 2, entitled Virgil T. Smith and Neva G.
Smith, his wife, Plaintiffs, vs. Raymond Spector and Raymor, Inc., a Nevada Corporation.
1
Under this appears the following endorsement: 5/29/63 Pay to order of J. M. Goddard,
Raymor, Inc., by Selma Spector, Treas. Following this are the words: For deposit to
Bradley & Drendel, Trust Account, J. M. Goddard. Payment on the check was stopped by
Streeter, the bank refused to pay the check, and this action followed. The check had been
delivered by Streeter to the representatives of Raymor pursuant to an agreement between the
parties dated May 29, 1963.
Appellant specifies the following asserted errors by the trial court:
1. The trial Court erred in not holding that the agreement of May 29, 1963, constituted a
novation.
2. The trial Court erred in failing to hold that the execution and delivery of the checks
pursuant to the agreement of May 29, 1963, constituted payment of the debt evidenced by
the checks thereby precluding any offset, counterclaim, or other defenses, save and
except any conditions expressed in the particular check.
____________________

1
This is not too artfully drawn. All parties seem to agree that it means: Subject to release of the writ of
garnishment * * *.
the debt evidenced by the checks thereby precluding any offset, counterclaim, or other
defenses, save and except any conditions expressed in the particular check.
3. The trial Court erred in holding that the absence of the name of the Hughes Porter
Corporation upon the check sued upon relieved the Hughes Porter Corporation from legal
liability thereon.
4. The trial Court erred in holding that the condition upon which the check sued upon
was delivered had not been satisfied.
The agreement of May 29, 1963, reads as follows:
Hughes Porter Corporation does hereby tender to Raymor, Inc., in full payment of that
certain promissory note evidencing the balance of the indebtedness due to Raymor, Inc., from
Hughes Porter Corporation on the purchase price of the Riverside Hotel the following:
1. Jack Streeter, Trust Account check dated May 29, 1963, payable to the order of the
Referee in Bankruptcy in the sum of Sixty Thousand ($60,000) Dollars.
2. Jack Streeter, Trust Account check dated May 29, 1963, payable to the order of
Raymor, Inc., in the sum of Sixteen Thousand ($16,000) Dollars.
3. Jack Streeter, Trust Account check dated May 29, 1963, payable to the order of
Raymor, Inc., in the sum of Sixty Thousand ($60,000) Dollars, said check bearing the
notation Subject to the Writ of Garnishment served on Jack Streeter and Hughes Porter
Corporation out of case No. 204932, Department No. 2, entitled Virgil T. Smith and Neva G.
Smith, his wife, Plaintiffs, vs. Raymond Spector and Raymor, Inc., a Nevada Corporation.'
Said check shall not be cashed by Raymor, Inc., until security in the form of a bond or other
suitable collateral shall be deposited in Court and which security shall release the Writ of
Garnishment.
Raymor, Inc. hereby acknowledges receipt of payment in full under the promissory note
aforesaid and hereby authorizes the Nevada Title Guarantee Company to mark said note paid
in full and to deliver said cancelled note to the Hughes Porter Corporation.
Raymor, Inc. further hereby authorizes the Nevada Title Guarantee Company to reconvey
the real property, the subject of the Deed of Trust securing payment of the promissory note
aforesaid and to release the Chattel Mortgage likewise securing said note.
of the promissory note aforesaid and to release the Chattel Mortgage likewise securing said
note.
The execution of this Agreement by each of the parties hereto constitutes payment in full
of said note and likewise constitutes a transfer of funds to the payees under each of the checks
aforesaid.
Hughes Porter Corporation
By: Jack Streeter
Jack Streeter
Agent and General Counsel
ACCEPTED:
RAYMOND SPECTOR, PRES.
Raymond Spector, President
It is to be noted, first, that in appellant's assignments of errors, as above recited, appellant
does not attack the court's findings of fact. Those findings briefly stated are as follows: that
Goddard was the attorney and agent of Raymor, Inc.; that he had knowledge of all the
transactions between Hughes Porter Corporation and Raymor, Inc., and also of the defenses
and counterclaims interposed by the respondents; that he gave no consideration for the check;
that on May 29, 1963, negotiations were had among Raymond Spector, president of Raymor,
Inc., Hughes Porter Corporation, and their representatives relative to the settlement of the
indebtedness owed by Hughes Porter Corporation to Raymor, Inc.; that as a result of the
settlement the check in question was made and delivered to Raymor, Inc.; that the making and
delivery of the check was conditional and was not to impose liability until the condition
relative to the posting of a bond or other suitable collateral to release said writ of garnishment
was performed by Raymor, Inc.; that prior to May 29, 1963, Hughes Porter Corporation had
been garnished in the action brought by Smiths as aforesaid; that Raymor, Inc., did not post a
bond or collateral to release the writ of garnishment; that said May 29, 1963, agreement
provided for the delivery of a note, chattel mortgage and deed of trust held by Nevada Title
Guaranty Company, under an escrow involving the sale of the Riverside Hotel in Reno,
Nevada, by Raymor, Inc., to Hughes Porter Corporation, pursuant to certain terms in the
May 29, 1963, agreement; that the note, deed of trust and chattel mortgage have not
been delivered to Hughes Porter Corporation, though demand had been made therefor;
Raymor, Inc., to Hughes Porter Corporation, pursuant to certain terms in the May 29, 1963,
agreement; that the note, deed of trust and chattel mortgage have not been delivered to
Hughes Porter Corporation, though demand had been made therefor; that the property
described in the deed of trust had not been reconveyed and still stands of record in the name
of the trustee; that Raymor, Inc., and its attorney, J. M. Goddard, threatened to foreclose the
said deed of trust; that on March 30, 1963, Raymor, Inc., had assigned sundry insurance
claims on the Riverside Hotel premises to Hughes Porter Corporation; that said insurance
claims totaled $35,000; that Raymor, Inc., and its attorneys had refused to make the necessary
proofs of loss to process said insurance policies; that Hughes Porter Corporation had been
damaged in the sum of $35,000 by reason thereof; that on March 1, 1963, Raymor, Inc.,
agreed in writing that the Riverside Hotel property, except for the first deed of trust and
chattel mortgage, would be free from all liens and encumbrances and that prior to the
execution of May 29, 1963, agreement Raymor, Inc., falsely represented that certain signs
affixed to the Riverside Hotel building were owned by Raymor, Inc., free and clear of
encumbrances while in fact said signs had been sold upon conditional sales and a total of
$6,726.90 was still owing thereon; that in said action by the Smiths they obtained judgment
against Raymor, Inc., in the amount of $35,000 and the amount of said judgment was
thereupon paid by said Hughes Porter Corporation under a writ of execution; that appellant
claims herein the sum of $25,000.
Other findings are not material to the present appeal, but from the foregoing, the court
concluded that Goddard was not a holder in due course and that Hughes Porter Corporation's
counterclaims for insurance and signs against Raymor, Inc., were valid and that Hughes
Porter Corporation was entitled to setoffs in the amount of $41,726.90; that Hughes Porter
Corporation cannot be held liable upon the subject check in which its name does not appear;
that said check was executed and delivered conditionally, which condition was not
performed, and therefore is not enforceable; that the cancellation, delivery and
reconveyance of the preexisting note, chattel mortgage, and deed of trust on the
Riverside property and premises is a condition precedent to the maintenance of said
action by Goddard, which has not been met; that plaintiff take nothing from defendant by
virtue of the action and that defendant take nothing from plaintiff by virtue of its
counterclaims.
cancellation, delivery and reconveyance of the preexisting note, chattel mortgage, and deed of
trust on the Riverside property and premises is a condition precedent to the maintenance of
said action by Goddard, which has not been met; that plaintiff take nothing from defendant by
virtue of the action and that defendant take nothing from plaintiff by virtue of its
counterclaims.
The original action against the defendant Jack Streeter, trustee, had theretofore been
dismissed.
[Headnotes 1, 2]
The trial court's findings as condensed above followed the filing of a written opinion in
which the trial court, among other things, decided as follows:
The condition as agreed to by the parties in their agreement of May 29 is clear and
unambiguous. To satisfy the condition, Raymor, Inc. was required to release the writ of
garnishment. The actual release of the writ, of course, could be accomplished only by the
Sheriff of Washoe County, to whom the Hughes Porter Corporation was directly responsible.
Raymor, Inc., having failed to do this, cannot now be heard to insist that the Hughes Porter
Corporation be required to accept far different performance than what was expressed in their
agreement. There is nothing illegal or contrary to public policy if competent parties agree to
make an obligation payable upon the occurrence of a condition, the performance of which is
entirely within the power of the payee, and which performance may amount to valuable
consideration to the obligor. The express condition of liability having not occurred, the check
has not become an enforceable obligation. Carter v. Wilson, 102 Kan. 200, 169 P. 1139;
Smith v. Dotterweich, 200 N.Y. 299, 93 N.E. 985; State Bank of Wilbur v. Phillips, 11
Wash.2d 483, 119 P.2d 664; 10 C.J.S. Bills and Notes, 487, at 1077.
We are in entire agreement.
____________

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