Nevada Reports 1962 (78 Nev.) PDF

78 Nev.
1, 1 (1962)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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VOLUME 78
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78 Nev. 1, 1 (1962) Holland v. The Crummer Corp.
L. J. HOLLAND, Appellant, v. THE CRUMMER CORPORATION, a Nevada Corporation,
and R. E. CRUMMER, Respondents.
No. 4409
January 17, 1962 368 P.2d 63
Appeal from the Second Judicial District Court, Washoe County, Clel Georgetta, Judge.
Action for breach of warranty as to amount of cattle on ranch. The trial court rendered a
judgment for plaintiff, and the defendant appealed. The Supreme Court, McNamee, J., held
that parties to existing contract may agree to extinguish, rescind, or modify it, but for
subsequent agreement to constitute rescission, it must be made with mutual consent of
parties, and that evidence supported finding that plaintiff and defendant, parties to agreement
whereby defendant was to exchange ranch for money and notes, waived 60-day contract
period during which plaintiff was to satisfy himself as to number of cattle, which defendant
had warranted.
Affirmed.
W. Howard Gray and Goldwater, Taber and Hill, of Reno, for Appellant.
Grubic, Drendel & Bradley, of Reno, for Respondents.
1. Exchange of Property.
Evidence supported findings that agreement to exchange ranch for apartment and money had not been
completely abandoned, as claimed by defendant, who had warranted to plaintiff and third party the number
of cattle on ranch as part of agreement, but that by release and subsequent agreement, defendant and
plaintiff intended agreement to be carried out with exceptions that plaintiff alone would purchase by giving
cash and notes in lieu of apartment, which third party could not convey, and that escrow arrangement
would be dispensed with.
2. Contracts.
Parties to existing contract may enter into valid agreement to extinguish, rescind, or modify it; for
subsequent agreement to constitute rescission, it must be made with mutual consent of parties.
3. Contracts.
Construction placed upon contract by parties thereto is entitled to weight in interpretation of instrument.
4. Contracts.
It is for fact-finding tribunal to determine construction parties gave contract by their action.
5. Novation.
Where neither defendant, who had agreed to exchange ranch for apartment and money from plaintiff and
third party, nor plaintiff, intended to annul such agreement insofar as it concerned themselves subsequent to
release of third party from performing under agreement, release did not operate as novation and did not
release defendant from his warranty under exchange agreement as to number of cattle on ranch.
6. Exchange of Property.
Evidence supported finding that both plaintiff, suing on warranty of number of cattle on ranch which was
to be exchanged for money and notes, and defendant waived 60-day contract period during which plaintiff
was to satisfy himself as to number of cattle.
OPINION
By the Court, McNamee, J.:
On November 18, 1957 appellant Holland as first party entered into a written agreement
with one Beeler as second party, hereinafter referred as the exchange agreement, wherein
appellant agreed to transfer to Beeler shares of stock in three corporations, together with all
of the assets of said corporations including the Holland Ranch consisting of 45,000 acres
of land and all livestock on said ranch.
with all of the assets of said corporations including the Holland Ranch consisting of 45,000
acres of land and all livestock on said ranch. The agreement recited that there [are] 9300
head of cattle consisting of at least 4500 cows, 800 two-year old heifers, 800 yearling heifers,
205 bulls and 2000 mixed calves, and then contained a warranty in the following words:
First Party warranting that there are a minimum of 8,000 head of cattle and at least 6,362 one
to five year old ewes and bucks.
The purchase price for the property was in part the Bellevue-Staten Apartment House in
Oakland, California, and also $550,000, of which $100,000 was to be paid upon the
execution of the agreement by second party.
The exchange agreement further provided that respondent Crummer shall approve and
accept this agreement, so that he may enter into a further agreement with Charles W. Beeler
and become a second party hereto, and as soon as either party signs this agreement it shall
constitute an offer which must be accepted or rejected by the other party within 24 hours
thereafter.
The agreement also provided that the parties deliver to a title company in Oakland,
California, escrow instructions, the escrow to be a regular 30-day escrow which may be
continued for an additional 30 days if necessary so that second party may, prior to the close of
escrow satisfy themselves as to the warranty on the number of livestock.
The exchange agreement was signed by Holland as first party and Beeler as second party
and approved and accepted as such by Crummer.
The evidence shows that immediately after Crummer signed the agreement on November
18, 1957 he entered into a joint enterprise agreement with Beeler, and Crummer made the
$100,000 down payment required by the exchange agreement; that after the execution of the
exchange agreement, Beeler was unable to convey as part of the purchase price the
Bellevue-Staten property. Crummer then wished to withdraw from the exchange agreement,
but Holland advised him that he was bound thereto and would subject himself to a suit for
specific performance of the exchange agreement if he did not perform.
agreement, but Holland advised him that he was bound thereto and would subject himself to a
suit for specific performance of the exchange agreement if he did not perform. Thereupon
negotiations were had between all three parties resulting in a release agreement dated
December 13, 1957, which provided that Holland and Beeler mutually released each other
from all terms of the exchange agreement and then went on to state: In other words, neither
Mr. Holland nor Mr. Beeler are required to perform under this contract. Following the
signatures of Holland and Beeler to this release, the following appears: The above
instrument is approved by the undersigned. [Signed] R. E. Crummer
Possession of the ranch was delivered to Crummer and he employed Holland as general
manager. No escrow was ever set up under the exchange agreement. Although one Bankofier
had orally reported to Beeler the result of his investigation as to the number of cattle on the
ranch, no proper count of the cattle was completed until December of 1958, at which time it
was ascertained that there were approximately 5,000 head of cattle on the ranch as of
November 18, 1957 rather than the warranted 8,000 head. Thereupon, the present suit was
commenced by Crummer for a breach of the said warranty.
The lower court found that the warranty was made not only to Beeler but also to Crummer,
that there was a breach thereof, and awarded Crummer money damages for such breach.
Appellant does not complain of this finding that the warranty was made by the exchange
agreement to both Beeler and Crummer. His chief assignment of error is that the trial court
erred as a matter of law in holding that the exchange agreement had not been annulled by a
novation whereby Crummer alone became the purchaser under a new, separate, and
independent oral agreement which did not contain a warranty as to the number of cattle.
The release agreement of December 13, 1957 expressly removed Beeler as a party from
the exchange agreement of November 18, 1957. There is no express provision relating to the
removal of Crummer as a party, however. These facts are conceded by all parties. Appellant
contends, however, that because Crummer was a second party to the exchange
agreement, his approval of the release agreement absolved appellant from any obligation
owed to either Beeler or Crummer under the exchange agreement, and likewise released
Crummer from the exchange agreement, thereby effecting an annulment of the exchange
agreement; that the novation resulted from the subsequent oral agreement which
changed the terms of the exchange agreement, particularly with respect to the parties
and the consideration, and that no warranty was contained in the oral agreement.1 If
there had in fact been a novation then counsel's contention that the exchange agreement
was annulled as a matter of law would be correct.
contends, however, that because Crummer was a second party to the exchange agreement, his
approval of the release agreement absolved appellant from any obligation owed to either
Beeler or Crummer under the exchange agreement, and likewise released Crummer from the
exchange agreement, thereby effecting an annulment of the exchange agreement; that the
novation resulted from the subsequent oral agreement which changed the terms of the
exchange agreement, particularly with respect to the parties and the consideration, and that no
warranty was contained in the oral agreement.
1
If there had in fact been a novation then
counsel's contention that the exchange agreement was annulled as a matter of law would be
correct. The trial court determined, however, from the evidence that no novation resulted
from the release and the subsequent oral agreement between Holland and Crummer. This
determination is found in the opinion of the trial court incorporated by reference in the formal
findings of fact.
After reciting that Holland was informed on December 8, 1957 that Beeler was unable to
convey title to the Bellevue-Staten Apartment House, the opinion then states:
17. On 10 December, 1957, a meeting was held in Beverly Hills, California, for the
purpose of working out a satisfactory manner of eliminating from the transaction Mr. Beeler
and his Bellevue-Staten Apartment property.
At that meeting the defendant (Holland) was represented by himself, Mr. Holland in
person, and by his attorney Mr. Richard Levin of Chicago. The plaintiff (Crummer) was
represented by Elmer Fox an accountant from Wichita, Kansas, and plaintiff's attorney from
Reno, Nevada, William 0. Bradley. The plaintiff's representatives suggested the deal be
terminated by return of all consideration paid. The defendant and his attorney refused to
consider such solution. Then the plaintiff's representatives suggested that the plaintiff
{Crummer) would forfeit the $100,000.00 he had paid.
____________________

1
In the oral argument counsel for appellant stated that the novation occurred at the moment the release was
executed but in a complete form subsequently thereto when the oral agreement was entered into.
(Crummer) would forfeit the $100,000.00 he had paid. This proposal was refused by the
defendant and his attorney. Then the plaintiff's representatives suggested that a completely
new contract be drawn and entered into between plaintiff (Crummer) and defendant
(Holland). The defendant (Holland) and his attorney (Levin) rejected this proposal. The
defendant (Holland) and his attorney (Levin) contended the Exchange Agreement was
binding on the plaintiff (Crummer) and that some consideration in lieu of the Bellevue-Staten
Apartment property could be agreed upon, but if that could not be done then Holland would
sue Crummer for specific performance of the contract.
At that meeting Mr. Fox, plaintiff's accountant, stated he would like to see Mr. Crummer
out of the deal because he was not familiar with the livestock business. The defendant
(Holland) stressed the fact he was warranting at least 8000 cattle and, therefore, Crummer
was not taking and chances.
At that meeting, the persons present worked out an agreement whereby cash and notes
would be given by the plaintiff (Crummer) as part of the purchase price of the Holland Ranch
property in lieu of the Bellevue-Staten Apartment property provided a release could be
obtained from Beeler and subject to the approval of the plaintiff (Crummer).
* * * * *

18. On or about 13 December, 1957, the defendant (Holland) and Mr. Fox went from Los
Angeles to San Francisco, Calif., to meet with the plaintiff (Crummer) and Beeler.
19. On 13 December, 1957, the defendant (Holland), the plaintiff (Crummer) and Mr.
Fox, the plaintiff's accountant, met in San Francisco, California. At that meeting, the plaintiff
(Crummer) accepted the arrangement set out in item 17 above, provided the defendant
(Holland) would manage the ranch property for one year at a salary of $1,000.00 a month and
provided releases could be obtained from Beeler.
Mr. Beeler was thereafter called into the meeting and a release was signed by the
defendant {Holland) and Beeler.
and a release was signed by the defendant (Holland) and Beeler.
At that meeting the plaintiff (Crummer) asked the defendant (Holland) what procedure
could be used to determine the number of livestock on the ranch, as warranted in the contract.
The defendant (Holland) explained that the cattle were scattered over the range and the fall of
the year is the only time when an actual count could be obtained. It appears from the
testimony of the plaintiff (Crummer) that he did not accept the livestock count made by
Bankofier but was relying on the defendant's (Holland) warranty contained in the written
contract.
[Headnote 1]
The trial court concluded from these findings that the exchange agreement was not
completely abandoned as claimed by appellant, but on the contrary that Crummer and
Holland by the release and subsequent agreement intended the exchange agreement to be
carried out with the exception that (a) Crummer alone would complete the purchase of the
ranch by giving cash and notes as part of the purchase price in lieu of the Bellevue-Staten
Apartment House, and (b) the escrow arrangement would be dispensed with. We will not
disturb this determination since the record supports it. Friendly v. Larsen, 62 Nev. 135, 144
P.2d 747.
[Headnote 2]
Parties to an existing contract may subsequently enter into a valid agreement to extinguish,
rescind, or modify the former contract. For the subsequent agreement to constitute a
rescission, it must be made with the mutual consent of the parties. Webb v. Moran, 186 Okla.
140, 96 P.2d 308.
The record contains abundant evidence to show that neither Crummer nor Holland
intended to release each other from the exchange agreement. In fact it contains specific proof
that Holland reiterated his agreement of warranty not only at the preliminary meeting in
Beverly Hills, California, mentioned above, but also at the San Francisco meeting of the
parties when the release was signed. This evidence supports the trial court's interpretation of
those words in the release agreement that neither Holland nor Beeler "are required to
perform under this contract" to mean that Holland was not obligated to perform the
exchange agreement only insofar as Beeler was concerned.
court's interpretation of those words in the release agreement that neither Holland nor Beeler
are required to perform under this contract to mean that Holland was not obligated to
perform the exchange agreement only insofar as Beeler was concerned. See Child v. Miller,
74 Nev. 223, 327 P.2d 342.
When the language used is fairly susceptible to one of two constructions, extrinsic
evidence may be considered, not to vary or modify the terms of the agreement but to aid the
court in ascertaining the true intent of the parties, * * * not to show that the parties meant
something other than what they said' but to show what they meant by what they said.' * * *
Where any doubt exists as to the purport of the parties' dealings as expressed in the wording
of their contract, the court may look to the circumstances surrounding its
executionincluding the object, nature and subject matter of the agreement, * * *as well
as to the subsequent acts or declarations of the parties shedding light upon the question of
their mutual intention at the time of contracting' * * *.
2

[Headnotes 3, 4]
Furthermore the construction placed upon a contract by the parties thereto is entitled to
weight in determining the proper interpretation of the instrument. Flyge v. Flynn, 63 Nev.
201, 166 P.2d 539. And it is for the fact-finding tribunal to determine the construction that
the parties gave it by their action. Coleman Bros. Corp. v. Commonwealth, 307 Mass. 205, 29
N.E.2d 832.
[Headnote 5]
The conclusion, properly reached that the parties did not intend to annul the exchange
agreement insofar as it concerned Holland and Crummer, precludes the subsequent release
and oral agreement from operating as a novation. 39 Am.Jur., Novation, sec. 24; see Walker
v. Shrake, 75 Nev. 241, 339 P.2d 124; Williams v. Crusader Disc. Corp., 75 Nev. 67, 334
P.2d 843.
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2
Quoted with approval in Berg Metals Corp. v. Wilson, 170 Cal. App.2d 559, 568, 339 P.2d 869, 874, from
Barham v. Barham, 33 Cal.2d 416, 422, 202 P.2d 289, 293.
[Headnote 6]
Appellant maintains that even if the warranty provision in the exchange agreement remains
in full force and effect (a) Crummer waived the breach of warranty by failing to insist on an
escrow, and (b) Crummer is bound by the acts of Beeler in investigating the number of cattle
independently and accepting his own count. Here again appellant disregards the trial court's
findings to the contrary which, supported by competent evidence, state: In this case all the
parties understood that the cattle could not be rounded up and counted until the late summer
and fall of 1958. The defendant (Holland) himself said if the cattle were to be gathered and
counted he wanted at least six or eight months and maybe more to gather the final count.' * *
* the 60-day period for the buyer to satisfy himself as to the number of cattle provided for in
* * * the Exchange Agreement * * * was also waived by both parties when the escrow was
dispensed with by subsequent verbal agreement.
The lower court having found that the warranty extended to Crummer as aforesaid, that it
was never rescinded, and that a breach of warranty was shown, properly awarded respondents
damages for such breach. We are not concerned on appeal with the amount of damages so
awarded.
Affirmed.
Badt, C. J., and Thompson, J., concur.
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78 Nev. 9, 9 (1962) Stix v. La Rue
ADINE H. STIX, Formerly ADINE H. SANBORN, Appellant, v. W. DALTON LA RUE and
JUANITA S. LA RUE, His Wife, Respondents.
No. 4395
January 24, 1962 368 P.2d 167
Appeal from judgment of the Second Judicial District Court, Washoe County; A. J.
Maestretti, Judge.
Action to enjoin interference with right of way over defendant's ranch. The lower court
rendered judgment for the plaintiffs and the defendants appealed. The Supreme Court,
Thompson, J., held that evidence sustained findings that plaintiff ranch owners had
acquired, as appurtenant to their ranch, right of way over road across adjacent ranch,
established when land comprising adjacent ranch was in public domain.
78 Nev. 9, 10 (1962) Stix v. La Rue
for the plaintiffs and the defendants appealed. The Supreme Court, Thompson, J., held that
evidence sustained findings that plaintiff ranch owners had acquired, as appurtenant to their
ranch, right of way over road across adjacent ranch, established when land comprising
adjacent ranch was in public domain.
Judgment affirmed.
Frank R. Peterson, of Reno, for Appellant.
Guild, Busey & Guild and Howard L. Cunningham, of Reno, for Respondents.
1. Easements.
Elements of easement by prescription are five years' adverse, continuous, open and peaceable use.
2. Easements.
Evidence sustained findings that plaintiff ranch owners had acquired, as appurtenant to their ranch, right
of way over road across adjacent ranch, established when land comprising adjacent ranch was in public
domain, where it was found to be only practicable road for use of plaintiffs' ranch and for many years only
means of ingress to and egress from plaintiffs' ranch.
3. Easements.
No presumption that use of road across ranch was permissive would arise where road was not established
by owner of servient estate for his own use and was for many years only means of ingress to and egress
from dominant estate.
4. Easements.
Exclusive use by owner of dominant estate is not element of easement by prescription.
5. Easements.
Where dominant owner had used right of way adversely, continuously, openly and peaceably for more
than five years before interference with use by servient owners, dominant owners' predecessor's offer to
purchase right of way could not defeat easement.
OPINION
By the Court, Thompson, J.:
Mr. and Mrs. La Rue commenced an action to enjoin Mrs. Stix from interfering with their
use of a claimed right of way over the Stix ranch, herein referred to as the Quail Canyon
ranch. After trial, the lower court entered judgment for Mr. and Mrs. La Rue, declaring a right
of way over the Quail Canyon ranch to be owned by them as an appurtenance to their
ranch, herein referred to as the Monte Cristo ranch, granting them the right to use such
way for ingress to and egress from the Monte Cristo ranch, and permanently enjoining
Mrs.
78 Nev. 9, 11 (1962) Stix v. La Rue
by them as an appurtenance to their ranch, herein referred to as the Monte Cristo ranch,
granting them the right to use such way for ingress to and egress from the Monte Cristo
ranch, and permanently enjoining Mrs. Stix and her agents from interfering with their use of
such way. Mrs. Stix appeals from that judgment.
Sometime before 1899, a road was made over public domain to the Monte Cristo ranch,
then owned by a predecessor of La Rue. In 1927 the United States issued a patent to the land,
now known as the Quail Canyon ranch, to a predecessor of Stix. A portion of the mentioned
road permitting ingress to and egress from the Monte Cristo ranch passed over the Quail
Canyon ranch. From the time that road was first built until March 1959 it was regularly used
by the predecessors of La Rue, and from October 1953 by La Rue himself as the most
practicable means of ingress to an egress from the Monte Cristo ranch. In March 1959 Mrs.
Stix obstructed the use of that road, and this action resulted.
In seeking reversal Mrs. Stix contends that the judgment is wrong as a matter of law, for
three reasons: First, because the evidence does not establish the adverse nature of claimants'
use; Second, because the evidence established that the use of the road by La Rue and
predecessors was not exclusive; Third, that a predecessor of La Rue had offered to purchase a
right of way from Mrs. Stix, thereby recognizing her superior title. We turn to the
consideration of these claims of error.
[Headnotes 1, 2]
1. Adverse use: The elements of an easement by prescription are five years' adverse,
continuous, open and peaceable use. Howard v. Wright, 38 Nev. 25, 29, 143 P. 1184, 1186.
Regarding the adverse character of the use by La Rue and predecessor, the lower court,
among other findings, stated: Plaintiffs' predecessor in interest while in possession of the
Monte Cristo ranch, in or about the year 1952 or 1953, by his employee, Lester Sanborn, did
assert to defendant a claim of right to use the aforesaid road across defendant's land. Plaintiff,
W. Dalton La Rue, while in possession of his said ranch, in the months of October and
November 1953, did on two occasions assert to defendant a claim of right to use said
road."
78 Nev. 9, 12 (1962) Stix v. La Rue
ranch, in the months of October and November 1953, did on two occasions assert to
defendant a claim of right to use said road. The quoted finding is supported by substantial
evidence. Lester Sanborn testified to a conversation with Mrs. Stix in 1952 or 1953, during
which Mrs. Stix said she was planning on closing the road through her property. Sanborn
told her of his belief that it was an established right of way, and continued thereafter to use
the road. Mr. La Rue testified that in October 1953 Mrs. Stix objected to his use of the road,
claiming it to be a private road, to which he replied that the road was the property of the
Holland Livestock company. At the time of this conversation, La Rue was in the process of
completing the purchase of the Monte Cristo ranch from the Holland interests. Shortly after
this conversation, another one occurred during which Mrs. Stix questioned the right of La
Rue to park his car on the road, whereupon he advised her that he had as much right to be
there as she did. La Rue continued to use the road. The trial court could properly find that La
Rue asserted a claim of right to use the road, which claim was adverse to the interest of Mrs.
Stix therein.
Notwithstanding that evidence, Mrs. Stix, relying upon Howard v. Wright, supra, and
Turrillas v. Quilici, 72 Nev. 289, 303 P.2d 1002, argues that, under the circumstances here
present, a presumption arose that the use of the road by La Rue and predecessors was
permissive, and that such presumption was not satisfactorily rebutted by the evidence referred
to. A short answer is that the lower court could properly find the presumption rebutted.
However, we must make it clear that, in our view, neither Howard v. Wright, supra, nor
Turrillas v. Quilici, supra, has application to the case at bar. In each the owner of the servient
estate established the way for his own use; in each there was another way available to the
dominant estate. Because of such circumstances the court, in speaking of presumptions, said
in Howard v. Wright, supra, that use of the way by a neighbor for a long period of time, of
itself did not create a presumption of adverse use; while in Turrillas v. Quilici, supra, the
court held that a presumption of permissive use did arise.
78 Nev. 9, 13 (1962) Stix v. La Rue
in Turrillas v. Quilici, supra, the court held that a presumption of permissive use did arise.
[Headnote 3]
The case before us is quite different. The road was originally built, by persons unknown,
over public domain. It was not established by the owner of the servient estate for his own use.
What is now the servient estate was not then in existence. The trial court found, inter alia, that
the road in controversy was the only traveled way to the Monte Cristo ranch until 1943 and
that, since that date, it has been the only practicable road for the use of that ranch, although
another road is sometimes used. There is substantial evidence to support these findings. The
inapplicability of either Howard v. Wright, supra, or Turrillas v. Quilici, supra, to this case,
therefore, is apparent. The road here in question was not established by the owner of the
servient estate for his own use, and it was, for many years, the only means of ingress to and
egress from the dominant estate. Under such circumstances, a presumption that the use was
permissive would NOT arise.
Because of direct evidence that La Rue claimed a right to use the road, despite the protest
expressed by Mrs. Stix, we do not determine whether, absent such evidence, a presumption of
adverse use would have been applicable here. Cf. Chollar-Potosi Mining Co. v. Kennedy and
Keating, 3 Nev. 361, 375.
2. Exclusive use: The Monte Cristo ranch is the only ranch on the road, except the Quail
Canyon ranch over which the right of way is claimed. The road ends at the gate to the Monte
Cristo ranch. It was initially made across public domain to serve that ranch. Since 1927 it has
been used by those living upon the two ranches and by persons having business to transact
with them. However, the road has been used by others. Because of use by others, hunters,
Indians, ranchers searching for straying cattle, etc., Mrs. Stix urges that the use by La Rue and
predecessors was not exclusive, thereby defeating claim to a prescriptive easement.
[Headnote 4]
It is not necessary to show exclusive use of the way by one who claims an easement by
prescription.
78 Nev. 9, 14 (1962) Stix v. La Rue
way by one who claims an easement by prescription. Exclusive use by such person is not an
element. Adverse, continuous, open and peaceable use for five years are the requisites.
Howard v. Wright, supra. Of course, exclusive use of the way by a claimant may give rise to a
presumption of adverseness; it is a relevant factor in evaluating the proof offered, but that is
all. Howard v. Wright, supra, recognized this distinction. Accordingly, we find no merit as to
this claim of error.
[Headnote 5]
3. Offer to purchase right of way: Mrs. Stix testified that an agent of La Rue's predecessor
offered to pay $2,000 for a right of way across her ranch, thereby irrefutably recognizing her
superior title to the way. It is clear from the record that La Rue had used the way adversely,
continuously, openly and peaceably for more than five years before interference with his use
by Mrs. Stix in March 1959. It is equally clear that such use by La Rue was after the
mentioned offer to buy; hence, the occurrence is not now material to any issue in the case.
Affirmed.
Badt, C. J., and McNamee, J., concur.
____________
78 Nev. 14, 14 (1962) Major v. Fraser
FLORENCE BUTTOMER MAJOR, Appellant, v. JOHN FRASER and HAZEL H. HALL,
Respondents.
No. 4423
January 30, 1962 368 P.2d 369
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Action for injuries sustained by pedestrian when she fell on a sidewalk in front of property
occupied by defendant. The lower court entered judgment for defendant and pedestrian
appealed. The Supreme Court, McNamee, J., held that defendant who did not create defect in
the sidewalk by some positive action or through a use of the sidewalk independent and
apart from ordinary use for which sidewalks are designated, could not be held liable on
theory of nuisance, or on theory of breach of duty to repair, for injuries sustained by
pedestrian when she fell after her heel caught in a crack in the sidewalk.
defect in the sidewalk by some positive action or through a use of the sidewalk independent
and apart from ordinary use for which sidewalks are designated, could not be held liable on
theory of nuisance, or on theory of breach of duty to repair, for injuries sustained by
pedestrian when she fell after her heel caught in a crack in the sidewalk.
Affirmed.
Nada Novakovich, of Reno, for Appellant.
R. P. Wait & E. J. Wait, Jr., of Reno, for Respondent John Fraser.
Goldwater, Taber and Hill, of Reno, for Respondent Hazel H. Hall.
1. Municipal Corporations.
An abutting property owner or occupant is under no duty to keep sidewalk in front of his property in a
reasonably safe condition, in absence of statute.
Statute providing that repair of sidewalks within a city was a governmental function and that city might
require repair of sidewalks and make cost thereof a lien against abutting property, does not impose liability
on an abutting owner to travelers for injuries sustained by reason of a defective sidewalk. Stats. 1957, ch.
287.
3. Municipal Corporations; Nuisance.
An abutting occupant who did not create a defect in a sidewalk could not be held liable to a pedestrian on
theory of nuisance, or on theory of breach of duty to repair, for injuries sustained by pedestrian when she
fell after her heel caught in a crack in the sidewalk.
OPINION
This is an action to recover damages for injuries sustained by appellant on March 30, 1960
in a fall on a public sidewalk in Reno, Nevada. The sidewalk was in front of property
occupied by respondent Fraser where he conducted an automobile parking lot and was
adjoining the property of respondent Hall. Hall and her deceased husband had constructed a
sidewalk in front of their property in July 1957.
of their property in July 1957. The construction contractor without authority from the Halls
feathered in the sidewalk across Halls' boundary line to connect with the adjoining
sidewalk in front of Fraser's property in order to bring it down in a gradual slope to the height
of Fraser's sidewalk. At the time of this construction the connection was smooth. By March
30, 1960 parts of the connection had gradually sloughed off causing a crack in the sidewalk.
This was due not to any special use of the property by Fraser but to pedestrian use and the
weather only. The driveway entering the parking lot was approximately 50 feet from the
crack. Appellant's fall was caused by her heel catching in the crack. No repairs to the
sidewalk had been made since its installation.
The lower court ordered a directed verdict in favor of the respondents. Appeal is from the
judgment based on such verdict.
[Headnote 1]
As to respondent Fraser, appellant concedes that an abutting property owner or occupant is
under no duty to keep the sidewalk in front of his property in a reasonably safe condition.
Such is the general rule at common law in the absence of statute. Winston v. Hansell, 160
Cal.App.2d 570, 325 P.2d 569.
1957 Stats. of Nev., Ch. 287, sec. 10.496, p. 392, provides that the construction,
maintenance and repair of sidewalks within the City of Reno is a governmental function, and
further provides that the city may require the repair of sidewalks and make the cost thereof a
lien against the abutting property. This power so granted to the city had not been exercised.
[Headnote 2]
The general rule is that such statutes, even when the city has given an abutting owner
specific notice to repair pursuant thereto, does not impose liability on the owner to travelers
for injuries incurred by reason of a defective sidewalk. Pierce v. Jilka, 163 Kan. 232, 181
P.2d 330; Schaefer v. Lenahan, 63 Cal.App.2d 324, 146 P.2d 929.
In Schaefer the plaintiff tripped in a hole in the sidewalk, which had not been repaired by
the abutting owner after notice from the city authorities. The court in upholding the said
general rule cited many authorities and stated:
It is the theory of appellant that this statute not only imposes a duty upon the property
owner to pay for repairs, but also creates a duty in favor of travelers on the sidewalk, and
makes the property owner liable to such travelers for injuries received because of the
defective condition of the sidewalk. This interpretation of the statute is not sound. The
primary duty to keep sidewalks in repair is on the city. The statute above quoted merely
provides a statutory method by which the city may collect the cost of repairs from the
property owner. The statute creates a duty on the part of the property owner to keep the
sidewalks in repairbut that duty is owed to the city, not to the traveler on the sidewalk. The
extent of the liability created is to pay for the repairs, not to pay damages to an individual, nor
to reimburse the city if it is compelled to pay such damages.
Statutes similar to the one here involved have been passed by many states. In interpreting
such statutes, the overwhelming weight of authority is to the effect that a statute which
requires abutting owners to maintain and repair sidewalks adjoining their premises, such
work to be done by the municipality at the expense of the abutting owners in case of their
failure to construct or repair, does not impose liability upon such owners, either to travelers or
to the city, for injuries incurred by reason of the defective sidewalk.
Even though the defect in the sidewalk was not caused by Fraser, appellant nevertheless
contends that the defect constitutes a nuisance and Fraser is liable for maintaining a nuisance.
In the case of McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 57 A.L.R.
1, relied upon by appellant, the suit was against the city which had the statutory duty to
regulate and maintain its streets. The court there said the defect which caused the injury
created a danger, and if danger there was, then also there was nuisance, though nuisance
growing out of negligence."
there was nuisance, though nuisance growing out of negligence. The court expressly limited
its holding therein to a situation where negligence is a basis of the nuisance. In the present
case Fraser was not negligent because, as abutting occupant, he owed no duty to the traveling
public to maintain the sidewalk in a reasonably safe condition.
We are of the opinion that the case of Marsh v. McLaughlin, 210 Ore. 84, 309 P.2d 188,
properly disposes of appellant's contention in this regard. There the court said:
We see no reason for considering that the cause of action based on the theory of nuisance
presents any different problem from that presented by the cause predicated on negligence.
Both rest upon the premise that the city has by charter imposed upon the defendant the duty to
repair plus liability to injured persons for failure to repair. By the great weight of authority the
charter of the City of Salem imposes the duty to repair as between the city and the property
owner but does not impose liability for injuries suffered by third parties. If the complaint had
alleged that the defendant had by affirmative action created a nuisance in the street, a
different question would be presented.
1

[Headnote 3]
Fraser, not having created the defect by some positive action or through a use of the
sidewalk by him independent of and apart from the ordinary and accustomed use for which
sidewalks are designated, owed no duty to appellant to cure such defect.
Appellant claims that the liability of respondent Hall results from the initial construction
of the sidewalk which created a duty in Hall to keep it in a safe condition for the benefit of
pedestrians. She cites the cases of Cummings v. Henninger, 28 Ariz. 207, 236 P. 701, 41
A.L.R. 207; and Hippodrome Amusement Co. v. Carius, 175 Ky. 783, 195 S.W. 113, L.R.A.
1918 E. 377. While these decisions seem to sustain appellant's position, their facts are
distinguishable from the present case.
____________________

1
The amended complaint in the present case charges only that the defendants negligently and carelessly
allowed the sidewalk * * * to be unsafe, dangerous, and defective.
facts are distinguishable from the present case. In Cummings the court held that the abutting
owner (which respondent Hall was not) having maintained the walk for a number of years
(which Hall did not) was charged with the duty to keep the sidewalk reasonably safe for
travel. The opinion states that the case of Law v. Kingsley, 82 Hun. 76, 31 N.Y.S. 88, which
absolved the abutting owner from liability is distinguishable for the additional reason that
there, after building the sidewalk, the abutting property owner assumed no further control of
it.
In Hippodrome the abutting owner was allowed an extraordinary use of a sidewalk for his
private convenience and injuries resulted from its failure to exercise reasonable care in
connection with that use.
Even assuming that that part of the sidewalk which extended beyond the Hall property line
was constructed at the instance of the Halls, it was not defective at the time of its
construction, and the Halls were in no wise the cause of the defective condition that later
developed, and owed no duty to the public to keep the sidewalk in repair. Headley v.
Hammond Building, 97 Mont. 243, 33 P.2d 574, 93 A.L.R. 794.
Affirmed.
Badt, C. J., and Barrett, D. J., concur.
Thompson, J., being disqualified, the Governor designated Honorable John W. Barrett,
Judge of the Second Judicial District, to sit in his stead.
____________
78 Nev. 20, 20 (1962) Knier v. Azores Construction Co.
H. R. KNIER, Appellant, v. AZORES CONSTRUCTION COMPANY, EVERETT S. M.
BRUNZELL CORPORATION, COMSTOCK CORPORATION, STAGE COACH INN,
Inc., FRED MACOMBER, KENNETH JOHNSON, BRUCE HANNON, and JAMES
HANNON, Respondents.
No. 4421
February 7, 1962 368 P.2d 673
Appeal from judgment of the Second Judicial District Court, Washoe County; A. J.
Maestretti, Judge.
Action to foreclose lien for labor and materials furnished in performance of contract for
moving and rehabilitation of motel units. The owners denied liability and sought recovery
upon a counterclaim. The lower court entered a judgment for the owners on the counterclaim
and the contractor appealed. The Supreme Court, Thompson, J., held that the owners were not
entitled to sum expended by them in painting interior when contract specifications only called
for painting exterior walls and for touch up work necessitated by any damage to interior
walls, and the proof as to alleged prospective loss of profits of new venture, was too
speculative.
Reversed and remanded.
Bible, McDonald & Jensen, of Reno, for Appellant.
Richards & Swanson, of Reno, for Respondents.
1. Contracts.
Where general intent recital of agreement for moving and rehabilitation of motel units did not
specifically designate painting obligation imposed upon contractor but particular provisions of
specifications did, particular provisions controlled.
2. Damages.
Court erred in allowing motel owners, under agreement in which specifications provided for painting of
exterior walls and necessary interior touch up work, sum spent in completely repainting interior of units.
3. Damages.
Where motel units when moved to new location were new business venture, fact it had been operating as
a motel two years before at nearby location was of no assistance in attempting to establish claim for loss of
profits because of delay in completion of moving and rehabilitation contract.
4. Damages.
When loss of anticipated profits is claimed as element of damages, business claimed to have been
interrupted must be established one and it must be shown that it has been successfully conducted for such
length of time and has such established trade that profits therefrom are reasonably ascertainable.
5. Damages.
Rule against recovery of uncertain damages generally is directed against uncertainty as to existence or
cause of damage rather than as to measure or extent.
6. Damages.
Loss of prospective profits of motel, a new business enterprise, was too uncertain and speculative to form
basis for recovery from contractor based on delay in performance of contract.
OPINION
A written agreement, made February 7, 1957, provided that Azores Construction
Company, herein referred to as Azores, and Everett S. M. Brunzell Corporation, herein
referred to as Brunzell, would pay H. R. Knier, herein referred to as Knier, $25,709.55 to
move and rehabilitate The Stage Coach Motel on Highway 40 west of Reno. The work was to
commence within 10 days and was to be substantially completed within 120 calendar days
thereafter. The sum of $23,180.60 was paid. Ten percent of the contract price, $2,570.95, was
withheld because of a dispute as to whether Knier had fully performed. Knier filed a claim of
lien for the amount withheld and for an additional amount of $508.44 for claimed extras, and
thereafter commenced suit to foreclose.
1
Azores and Brunzell denied any liability to Knier,
and themselves sought a recovery against him upon a counterclaim, alleging that they had
spent $2,179.99 to finish what Knier should have done, and had lost $2,205 in rental income
because of Knier's failure to complete the job on time. The lower court denied relief to Knier
upon his complaint, and granted relief to Azores and Brunzell for the exact amounts
requested by their counterclaim.
____________________

1
In the same action Knier sought to recover $2,038.55 for labor and materials supplied to a dwelling house
and not included within the scope of the work required by the written agreement. It was agreed that this amount
was due Knier and would be properly reflected in any judgment entered.
to Azores and Brunzell for the exact amounts requested by their counterclaim. Knier appeals.
The following errors are assigned: (1) Insufficiency of the evidence to support the
judgment awarding Azores and Brunzell the sum of $2,179.99 spent by them for work, labor,
and materials needed to complete the job; and (2) that the judgment for $2,205 representing
claimed loss of profits cannot stand as a matter of law.
(1) The basis for the first assignment of error is that the work, labor, and materials totaling
$2,179.99 supplied by Azores and Brunzell, was not embraced within the written agreement
and specifications, and should not, therefore, be charged against Knier. The items included
within the aforesaid sum are lumber $14.34, hardware $96.87, labor $392, patching of plaster
and wallboards $178.50, pump repair $329.50, pump installation $65.28, and paint and labor
$1,103.50. Except for the last item, paint and labor, we believe the lower court could properly
find all items to have been part of the work required by the written agreement and
specifications. However, we do not believe that the amount of $1,103.50 for paint and labor
was within the scope of the work required by the said agreement and specifications. That
agreement, in declaring the general intent of the parties, provided It is the general intent of
these specifications that the work involved entails the moving of the existing motel units to
the designated site. These buildings to be assembled and/or re-erected in the manner to
present a final completed habitable, operating motel in its entirety. All repairs, remodeling,
connected sectioned units, etc., to be completed in a workmanlike, acceptable manner
presenting in effect a newly built structure similar to its appearance while it was being
operated as The Stage Coach Motel, on Highway 40.
On the other hand, the specifications which were expressly made a part of the agreement,
as to painting, particularly provided as follows: All exterior walls shall have one coat Barn
Red paint of good quality. Doors and windows to be trimmed in white. All interiors to have
touchup work where patching or other damage occurs."
occurs. The item for $1,103.50 here in question was for painting the interiors of the motel
units. The interior touchup work had been done by Knier. In claiming that amount, Azores
and Brunzell rely upon the general intent recital of the agreement, and argue that the
renovated motel could not present the effect of a newly built structure, habitable in its
entirety and similar to its appearance while it was being operated as The Stage Coach
Motel unless the interiors were completely painted. Knier contends that the specific
provisions of the specifications, which were made a part of the agreement, designate the
extent of his duty with reference to interior painting.
[Headnotes 1, 2]
The general intent recital of the agreement did not specifically designate the painting
obligation imposed upon Knier. The particular provisions of the specifications did. Under
such circumstances the particular provisions control. Derby Desk Co. v. Conners Bros., 204
Mass. 461, 90 N.E. 543; annotation in Ann.Cas. 1913 C, p. 224. Accordingly, the lower court
erred in allowing Azores and Brunzell the sum of $1,103.50 for painting the interiors of the
motel limits.
(2) The agreement contemplated that Knier would substantially be through with his work
by June 17, 1957.
2
He was not. Ten units were not ready for use until July 4, 1957 and the
remaining seven units until August 14, 1957. Because of such delay, Azores and Brunzell
claim a loss of profit in the amount of $2,205. The lower court allowed that amount. Knier
contends that error was thus committed.
[Headnote 3]
The Stage Coach Motel at its new location was a new business venture. Admittedly, it had
been operative one-half mile away from 1953 to the fall of 1955 when it closed. The record
before us is silent as to why it closed.
____________________

2
Counsel incorrectly believed the work was to have been substantially completed by June 7, 1957, and
attempted to compute damages accordingly. The work was to have been completed within 120 days after
February 17, 1957, that is, by June 17, 1957.
Nor does it reveal whether the motel at its original location ever enjoyed a profit. Hence, the
fact that it had been an operating motel two years before at a nearby location, under the
circumstances of this case, is of no assistance to Azores and Brunzell in their attempt to
establish a claim for loss of profits.
[Headnote 4]
In Dieffenbach v. McIntyre, 208 Okla. 163, 166, 254 P.2d 346, 349, it was said While it
is true that we have in numerous cases held that the loss of profits in an established business
is a proper element of damages, the business of plaintiff in her former uptown location could
not be used, we think, to measure the damages sustained by her, because of her removal from
the buildings of defendant. She occupied the buildings of defendant only two months, and
that in our opinion was not a sufficient length of time to constitute her business there an
established business. Where the loss of anticipated profits is claimed as an element of
damages, the business claimed to have been interrupted must be an established one and it
must be shown that it has been successfully conducted for such a length of time and has such
a trade established that the profits therefrom are reasonably ascertainable. See Annot., 1
A.L.R. 156; 99 A.L.R. 938.
[Headnotes 5, 6]
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. Brown
v. Lindsay, 68 Nev. 196, 205, 228 P.2d 262, 266. We hold that the claimed existence of
damage, that is, the loss of prospective profits, of The Stage Coach Motel, a new business
enterprise, is too uncertain and speculative to form a basis for recovery.
Accordingly, the judgment below, in favor of defendants and counterclaimants, is
reversed, and the cause remanded for entry of judgment in favor of plaintiff below and against
the defendants Azores Construction Company and Everett S. M. Brunzell Corporation for the
sum of $3,533.01 and costs.3 The lower court is directed to determine and allow to the
plaintiff below a reasonable attorney's fee, in accordance with NRS 10S.170 {subd.
the sum of $3,533.01 and costs.
3
The lower court is directed to determine and allow to the
plaintiff below a reasonable attorney's fee, in accordance with NRS 108.170 (subd. 3).
____________________

3
The amount of the judgment is computed as follows:
Agreed sum due Knier for work on dwelling $2,038.55
Contract price for motel rehabilitation 25,709.55

_________

$27,748.10
Less $23,138.60 paid Knier and $1,076.49 work done by Azores and Brunzell which Knier
should have done..............................................................................................-24,215.09

_________

Due Knier $3,533.01
____________
78 Nev. 25, 25 (1962) Heidtman v. Nevada Industrial Commission
DONALD G. HEIDTMAN, Appellant, v. NEVADA
INDUSTRIAL COMMISSION, Respondent.
No. 4448
February 7, 1962 368 P.2d 763
Action to recover benefits under Industrial Insurance Act, NRS 616.010 et seq. The trial
court rendered judgment adverse to plaintiff, and from such judgment and an order denying
his motion for new trial, plaintiff appealed. The Supreme Court, McNamee, J., held, inter
alia, that the evidence sustained conclusion that used car salesman deviated from employment
when he entered archery meet, to which he had driven employer's automobile allegedly for
purpose of selling it to prospective customer, and that benefits under Industrial Insurance Act
for injuries sustained when salesman fell into excavation on archery course were properly
denied on ground that he had not returned to and was not within scope of employment at time
of injury, even though he was then leaving archery course en route to parking lot.
Affirmed.
Thompson, J., dissented.
Adams, Reed, Bowen & Thatcher, of Reno, for Appellant.
William J. Crowell, of Carson City, for Respondent.
1. Trial.
Finding that plaintiff had failed to sustain burden of proof as to allegations of complaint was not
commendable or in accordance with express requirements of rule and did not facilitate review on appeal.
NRCP 52(a).
2. Workmen's Compensation.
Because of inadequacy of findings in compensation case, reviewing court was required to look to written
decision of trial court to ascertain what matters were considered in determining issues. NRCP 52(a).
Whether employee while on business trip deviated therefrom so that injury sustained is not within
coverage in Industrial Insurance Act is ordinarily fact question for trial court. NRS 616.010 et seq.
In absence of formal finding to such effect, finding that used car salesman had deviated from employment
at time of injury, for which he sought benefits under Industrial Insurance Act, would be implied from trial
court's written decision. NRCP 52(a); NRS 616.010 et seq.
In determining whether used car salesman, who had driven employer's automobile to archery meet for
purpose of selling it to prospective customer, deviated from employment when he entered meet and hence
was not within coverage of Industrial Insurance Act, court could properly refuse to give any significance to
his testimony that entering the meet was matter of good salesmanship, in view of inconsistencies in his
written statement to Industrial Commission. NRS 616.010 et seq.
6. Evidence.
Court may consider inherent improbabilities of testimony and is not bound to accept testimony, though
uncontradicted.
7. Evidence.
Intent is a matter of fact as to which person whose intent is in question may ordinarily testify, but if
reason for motive is equivocal, such testimony is not conclusive as against equally credible presumptions
and inferences.
8. Trial.
Finding of fact may be based upon inference which is supported by evidence.
Evidence sustained conclusion that when used car salesman entered archery meet, to which he had driven
employer's automobile allegedly for purpose of selling it to prospective customer, he so deviated from
employment as to be excluded from coverage under Industrial Insurance Act, NRS 616.010 et seq.
Where used car salesman deviated from employment by participating in archery meet to which he had
driven employer's automobile allegedly for purpose of selling it to prospective customer, benefits under
Industrial Insurance Act for injuries sustained when he fell into excavation on archery course were properly
denied on ground that he had not returned to and was not within scope of employment at time of injury,
though he was leaving archery course en route to parking lot. NRS 616.010 et seq.
OPINION
Appellant alleges in his complaint that on January 21, 1957 he suffered injuries by
accident arising out of and in the course of his employment and that he is entitled to recover
all benefits provided by the Nevada Industrial Insurance Act. He further alleges that he was a
salesman on said day and his employment as such could be carried on either at the place of
his employer's business or elsewhere on any day of the week including Sundays. The answer
of respondent admits that appellant was employed as a salesman on January 21, 1957 but
denies that at the time appellant suffered injuries he was engaged in the course or scope of his
employment.
The trial before the court without a jury resulted in a judgment in favor of respondent.
Appeal is from said judgment and the order denying appellant's motion for a new trial.
Appellant testified that on the day he received his injuries he was employed as a used car
manager for an automobile establishment in Reno, Nevada, at a fixed salary plus
commissions. His basic hours of employment were from 8:00 A.M. to 6:00 P.M., but he was
on call at all times including Sundays and holidays. Pursuant to his duties as salesman he was
authorized to take any car from the used car lot for the purpose of demonstration. He was
interested in sports, particularly in the sport of archery. Two or three days before an archery
meet to be held at Sutcliffe, Nevada, he met one Waddell who at that time professed interest
in a Cadillac automobile. At that time appellant told Waddell that he would bring such an
automobile to the Sutcliffe meet.
would bring such an automobile to the Sutcliffe meet. Appellant, taking with him his archery
equipment, drove the Cadillac to Sutcliffe with the intention of entering the meet as one of
the participants therein, and at the same time hoping to sell the automobile to Waddell.
Waddell was in charge of the archery meet when appellant arrived. They had a brief
conversation during which appellant mentioned that he had the car with him. Waddell did not
see the car at any time before or after the meet. After Waddell started out on the course,
appellant himself entered the meet and with a subsequent group followed Waddell's group
around the course. During the meet appellant saw Waddell several times and mentioned the
car to him at least one time. When Waddell had finished the 9th hole on the archery course,
appellant, in cutting across the course to go to the parking lot, fell into an excavation on the
course, and was injured.
Waddell corroborated the foregoing testimony with respect to the conversations between
him and appellant and the fact that he had not examined the Cadillac at any time. Waddell
further testified that he did not thereafter purchase the Cadillac or any other car from
appellant or his employer. This is the only testimony given before the trial court.
The only other evidence consists of the written statement given by appellant to the Nevada
Industrial Commission dated February 10, 1957, wherein appellant related that he drove his
employer's Cadillac to Sutcliffe, Nevada, because Waddell had professed interest in buying a
Cadillac and he knew Tony Waddell would be at Sutcliffe: When I arrived there the shoot
had started so I entered also. I saw Tony and took him aside and showed him the Cad. He
professed interest but thought he would like a later model. We talked about cars and
continued to shoot. Dan Jenkins and I later got together and talked automobiles and he said he
would buy a new one in a month or two from me. Upon learning that I could not make a sale
at that time I returned to the car. On the way I met with my accident and broke my foot.
[Headnotes 1, 2]
The formal findings of the court are limited to the brief statement that the plaintiff has
failed to sustain the burden of proof as to the allegations contained in his complaint.
Findings in such form are not commendable (see Crumley v. Fabbi, 47 Nev. 14, 213 P. 1048),
are not in accordance with the express requirements of Rule 52(a) NRCP, and manifestly do
not facilitate the review of a cause on appeal. Because of the paucity of findings, we must
look to the written decision of the trial court, as we did in Pearson v. Pearson, 77 Nev. 76,
359 P.2d 386, to ascertain what matters were considered by the trial court in its determination
of the issues.
In its decision the court below said: [I]t must be assumed that plaintiff reached his
employment destination, that he then deviated beyond his business destination by engaging in
the archery competition and then upon his return to the employment destination he was
injured. The exact point of determination then is whether he was within the scope of his
employment at the time he was injured. In deciding that he was not, I think it first must be
assumed that plaintiff was within the scope of his employment when he went out to Sutcliffe
and that he was in the process or about to resume that employment when he started for the car
to intercept Waddell.
The trial court's finding that appellant was covered by the Industrial Insurance Act, while
he was en route to Sutcliffe and up until the time he entered the archery meet, is conceded by
the parties to be proper. It is the further finding (that appellant deviated from his employment
when he entered the meet and had not resumed his status as an employee at the time he was
injured) which the appellant attacks.
[Headnotes 3, 4]
Whether or not appellant while on a business trip deviated therefrom would ordinarily be a
question of fact for the trial court, which question in the present case was decided in the
affirmative and against the appellant. True it is there is no formal finding to this effect dehors
the written decision of the court, but such a finding will be implied.
dehors the written decision of the court, but such a finding will be implied. Krick v. Krick, 76
Nev. 52, 56, 348 P.2d 752. It seems to be appellant's assertion however that only if there is
some evidence to support such a finding could a factual question arise, and that whether any
evidence of a deviation was before the lower court is a question of law reviewable on appeal.
Evidence in the record which supports a finding that a deviation occurred is the testimony
of appellant that he intended to enter the archery meet at the time he left Reno coupled with
his special interest in the sport of archery, he being at that time Nevada State Field Governor
for the National Field Archery Association. In this connection the trial court said: While he
[appellant] admitted that he might have gone to Sutcliffe to take part in the archery meet and
as a sideline to sell a car, he had serious doubts as to whether the sole purpose in going to
Sutcliffe was merely to take part in the contest.
Further facts relevant to deviation are: Appellant took with him to Sutcliffe his archery
equipment; he entered the archery meet at Sutcliffe; his injury occurred while he was on the
archery course; the sales prospect, Waddell, at no time on the day of appellant's accident
inspected the car which appellant hoped to sell to him and no sales negotiations were had at
any time thereafter between appellant and Waddell; and appellant at one point declined to
testify positively that a prospective car sale and not his archery interests was what motivated
him to go to Sutcliffe.
1

[Headnotes 5-7]
Appellant did intimate in his testimony that it was desirable for him to enter the archery
meet as a matter of good salesmanship, but in view of the inconsistencies contained in
appellant's written statement in evidence as aforesaid the court properly could refuse to
give any significance to such testimony relating to good salesmanship.2 As stated by this
court in In re Duffill's Estate, 57 Nev. 224, 231
____________________

1
Q. Isn't it a fact, Mr. Heidtman, that what took you from Reno, Nevada, on a poor day, was not to sell a car
but to take in the archery shoot at Sutcliffe, Nevada? Isn't that what took you out? And, as a sideline, you were
going to show a car if there was someone interested.
A. On that particular day, I seriously doubt it.
Q. But it could have been true?
A. I could have gone out, yes. I must admit it.
as aforesaid the court properly could refuse to give any significance to such testimony relating
to good salesmanship.
2
As stated by this court in In re Duffill's Estate, 57 Nev. 224, 231, 61
P.2d 985, 987, it is a well-recognized rule that a court is not bound to accept uncontradicted
testimony. It may consider the inherent improbabilities of the statements of witnesses, and in
Moore v. Rochester W. M. Co., 42 Nev. 164, 178, 174 P. 1017, 1021, 19 A.L.R. 830, we
said: It is true that intent is a matter of fact that ordinarily may be testified to by the person
whose intent is in question, but if the reason for the motive is equivocal, it is not conclusive
as against presumptions and inferences equally as credible.
We are thus confronted with the aforesaid evidence of deviation and the reasonable
inferences arising therefrom. A proper inference could be that even if appellant had a dual
purpose in going to Sutcliffe (which could result in his being covered under the act while he
was en route to Sutcliffe), his entry into the archery meet after arriving at his destination was
a matter wholly personal concerning his own pleasure and not connected with or incidental to
his employment as an automobile salesman.
[Headnote 8]
A finding of fact may be based upon an inference which is supported by the evidence.
Cummings v. Kendall, 41 Cal.App.2d 549, 107 P.2d 282; Turner v. Vineyard, 46 Del. (7
Terry) 138, 80 A.2d 177, 179.
[Headnote 9]
We hold as a matter of law that there is sufficient evidence to sustain the court's
conclusion that appellant's entry into the meet was personal and any risk resulting therefrom
likewise would be personal. Therefore it was proper for the trial court to conclude that a
deviation from his employment had occurred at the time of appellant's injury.
____________________

2
In McCoy v. Simpson, 346 Mo. 72, 139 S.W.2d 950, the Missouri Supreme Court stated that the trier of the
facts cannot disregard competent, substantial testimony, but it is not compelled to accept it as true even though it
is unimpeached and uncontradicted. See also Scaggs v. Lindsey Well Service, Inc., 366 P.2d 945 (Okla. 1961).
Where there has been a deviation, as here, then it is necessary to determine when, if at all,
the employee returned to his employment.
The evidence discloses that appellant was en route to the parking lot where he had left the
Cadillac, and although appellant's testimony is not consistent on this point we can assume
that he expected to see Waddell there. The accident occurred before he reached the parking
lot and while he was still on the archery course.
In 1 Larson, Workmen's Compensation, sec. 19.33, at 276, the author states:
We come now to the deviation problem which has produced the sharpest split of opinion
of all: the question whether an employee, who has completed a personal side-trip and is
moving back toward his business route when injured, should be deemed to have resumed his
employment as soon as he starts back, or only when he actually regains the main business
route or destination. * * * The majority of compensation cases deny recovery in these
circumstances, on the ground that a side-trip is a personal deviation until completed, but a
minority have taken the position that the journey toward the employment destination or route
should be compensable, because the personal motivation is spent, and the employee's object
has become the single-minded purpose of getting to his employment destination.
Some of the compensation cases supporting the majority view are as follows:
Red Arrow Bonded Messenger Corp. v. Industrial Acc. Commission of Cal., 39
Cal.App.2d 559, 103 P.2d 1004; Fidelity & Casualty Co. of N. Y. v. Moore, 143 Fla. 103,
196 So. 495; Parker v. Twin Falls County, 62 Ida. 291, 111 P.2d 865; Public Service Co. v.
Industrial Commission, 395 Ill. 238, 69 N.E.2d 875; Warren v. Globe Indemnity Co., 217 La.
142, 46 So.2d 66; Carner v. Sears Roebuck & Co., 337 Mich. 219, 59 N.W.2d 263; Kayser v.
Carson Pirie Scott & Co., 203 Minn. 578, 282 N.W. 801; Duggan v. Toombs-Fay Sash &
Door Co., 228 Mo.App. 61, 66 S.W.2d 973; Kinkead v. Management & Engineering Corp.,
103 S.W.2d 545 (Mo.App. 1937); Luke v. St. Paul Mercury Indemnity Co., 140 Neb. 557,
300 N.W. 577; McNaught v. Standard Oil Co.,
McNaught v. Standard Oil Co., 128 Neb. 517, 259 N.W. 517; Clegg v. Interstate Ins. Co., 130
N.J.L. 307, 32 A.2d 570; Weaver v. Knollwood Country Club, 283 App.Div. 1124, 131
N.Y.S.2d 482; Applegate v. Accident & Casualty Ins. Co., 277 App.Div. 1073, 100 N.Y.S.2d
636; O'Keefe v. Friederich & Son, 260 App.Div. 818, 22 N.Y.S.2d 402; Lansing v. Hayes,
196 App.Div. 671, 188 N.Y.S. 329, aff'd in 233 N.Y. 614, 135 N.E. 940; Kirker v. McIntosh
Co., 156 Pa.Super. 199, 39 A.2d 846; Gray v. Dept. of Labor & Industries, 43 Wash.2d 578,
262 P.2d 533; Automotive Parts & Grinding Co. v. Industrial Commission, 220 Wisc. 122,
264 N.W. 492.
Examples of the decisions supporting the minority views are:
London Guarantee & Accident Co. v. Herndon, 81 Ga.App. 178, 58 S.E.2d 510; Macon
Dairies v. Duhart, 69 Ga.App. 91, 24 S.E.2d 732; Sawtell v. Stern Bros. & Co., 226 Mo.App.
485, 44 S.W.2d 264.
Duggan, supra, distinguishes Sawtell, supra, both Missouri cases, with these words:
Sawtell [at the time of the accident] was on his way to the home of a prospective buyer, and
was in the course of his employment. Not so with Duggan in this case.
Although cases involving the liability of an employer to a third person injured by the
negligence of an employee in applying the deviation rule rest upon an entirely different
rationale than that in workmen's compensation cases, it is interesting to note that even in tort
liability cases the majority rule is that the relation of master and servant is not restored until
the personal deviation is completed. The case of Murphy v. Kuhartz, 244 Mich. 54, 221 N.W.
143, 144, in commenting on the two views, states:
There are cases which hold that where a servant in driving his master's truck so deviates
from his regular route as to suspend the relation of master and servant, it is immediately
restored when he starts to return. A leading case of this class is Riley v. Standard Oil Co., 231
N.Y. 301, 132 N.E. 97, 22 A.L.R. 1382. But by better authority it is held that the relation of
master and servant is not restored until he has returned to the place where the deviation
occurred or to a corresponding place, some place where, in the performance of his duty,
he should be."
where the deviation occurred or to a corresponding place, some place where, in the
performance of his duty, he should be.
It is to be noted that the Michigan Supreme Court in Carner v. Sears Roebuck & Co.,
supra, a workmen's compensation case, quoted with approval the said language in Murphy,
supra.
[Headnote 10]
The trial judge in denying compensation herein, in our opinion, properly followed the
majority rule which in effect is a holding that the appellant had not terminated the deviation
or resumed his status as an employee at the time of the injury. Denial of compensation
therefore was not error.
Affirmed.
Badt, C. J., concurs.
Thompson, J., dissenting:
I dissent.
The lower court found that Heidtman was within the course of his employment and
covered by the Industrial Insurance Act while en route to Sutcliffe and until the time he
entered the archery meet. The commission concedes that finding to be correct under the
circumstances of this case. With such finding and concession before us, I believe that the
conclusion reached by the court below and the majority here is incorrect as a matter of law.
Heidtman's business was to sell cars. Yet, the conclusion reached in this case announces that
he was within the course of his employment when he had no possibility of making a sale, i.e.,
while driving alone from Reno to Sutcliffe, but that upon arrival at the appointed place to
meet his customer and attempt to sell him a car he stepped out of bounds. The opportunity to
sell a car to Waddell was at the archery meet where he was in participation. If Heidtman was
within the course of his employment while driving to the appointed place for business, he
must be considered to have been within the course of his employment while at such place
attempting to make the sale. Where the employee is combining his own business with that of
his employer, or attending to both at substantially the same time, no nice inquiry will be
made as to which business he was actually engaged in at the time of injury unless it
clearly appears that neither directly or indirectly could he have been serving his
employer."
to both at substantially the same time, no nice inquiry will be made as to which business he
was actually engaged in at the time of injury unless it clearly appears that neither directly or
indirectly could he have been serving his employer. Ryan v. Farrell, 208 Cal. 200, 280 P.
945; Wiseman v. Industrial Accident Commission, 46 Cal.2d 570, 297 P.2d 649.
The lower court determined that Heidtman deviated from the course of his employment
when he entered the archery meet. This is, of course, a conclusion of law drawn from the
evidence. The majority seek to support such conclusion by reciting evidence in the record
which supports a finding that a deviation occurred and by a further recitation of facts
relevant to deviation. However, from an examination of the facts therein referred to, it does
not appear that Heidtman had departed from the place where he had arranged to carry on his
business with Waddell. Nor does it appear that he left his prospective customer to go
elsewhere. To the contrary. He remained at Sutcliffe, and even attempted to discuss business
with Wadell during the archery meet. This is of paramount significance because the claimed
deviation must be identifiable, before the employee is removed from the course of his
employment. 1 Larson, Workmen's Compensation, sec. 19.00. Every case, without exception,
cited by the commission in its brief, or referred to by the majority herein, wherein it was held
that a deviation occurred, involved an identifiable deviation; indeed, in each instance the
employee was not at the place where his business was to be carried on, nor was he, if a
salesman, with his prospective customer. See each case cited by the majority at paragraphs 21
and 23 of its opinion. Absent such facts, an identifiable deviation does not appear from the
record before us.
It is, therefore, my view that we are dealing only with the dual purpose trip problem, and
not with the question of an identifiable deviation from the course of employment. The most
that can be made of Heidtman's participation in the archery meet is that he was serving two
purposes at once, his pleasure, and the business of his employer. All authorities agree that this
circumstance, of itself, does not remove him from the coverage of the Industrial Insurance
Act.
of itself, does not remove him from the coverage of the Industrial Insurance Act.
Benjamin Cardozo, when Chief Justice of the Court of Appeals of New York, wrote the
landmark opinion, Marks v. Gray, 251 N.Y. 90, 167 N.E. 181. He stated, inter alia: We do
not say that service to the employer must be the sole cause of the journey, but at least it must
be a concurrent cause. To establish liability the inference must be permissible that the trip
would have been made though the private errand had been canceled.* * * The test in brief is
this: If the work of the employee creates the necessity for travel, he is in the course of his
employment, though he is serving at the same time some purpose of his own. * * * If,
however, the work has had no part in creating the necessity for travel, if the journey would
have gone forward though the business errand had been dropped, and would have been
canceled upon failure of the private purpose, though the business errand was undone, the
travel is then personal, and personal the risk.
Let us apply such test to the case before us. The commission conceded that Heidtman was
within the course of his employment while traveling to Sutcliffe! The lower court found such
to be the fact. We know, therefore, that service to his employer was, at least, a concurrent
cause of his trip. We know that the inference was permissible that the trip would have been
made though his private errand, participation in the archery meet, was canceled. We know
that his work had a part in creating the necessity for his trip. Therefore, absent an identifiable
deviation thereafter, which does not appear for the reasons heretofore mentioned, Heidtman
must, as a matter of law, be considered to have been within the course of his employment
when injured.
In Fisher v. Fisher, 226 Minn. 171, 32 N.W.2d 424, a salesman made an appointment with
a prospective customer to discuss home insulation. He was to meet his customer during the
evening at a public playground where the customer was to umpire a baseball game. He spoke
with his customer and was advised that the game would be through in a few minutes and to
wait for him.
Following this conversation, the salesman walked from behind an iron fence where he had
spoken with his customer and joined with other spectators who were sitting on a side bank
watching the ball game. Shortly thereafter he was struck when a youngster threw part of a
broken bottle. The injury resulted in the loss of his right eye. The industrial commission
conceded that the salesman was at the ball park for the purpose of seeing a business prospect
and that, while watching the ball game, he was merely waiting for an opportunity to further
negotiate with his sales prospect. However, it contended that, by watching the ball game a
deviation or temporary departure from his employment occurred, with the result that he could
not enjoy the benefits of industrial insurance. In holding that the salesman was within the
course of his employment at the time of the accident, and therefore entitled to the benefits of
industrial insurance, the court, among other things, stated In affirming the ruling of the
industrial commission to the effect that the injury occurred in the course of the employment,
we do not mean to say that a salesman could not, while waiting for a prospect, so far depart
from his employer's business on an enterprise of his own as to put him outside the coverage
of the act. We only hold that here there was no such departure. To adopt a contrary view
would lead to the absurd result that the employee would have had to remain rooted to the spot
where he last spoke with Feiring in order to retain coverage under the act while waiting. The
claimed deviation in Fisher v. Fisher, supra, was not an identifiable one. The salesman was at
the place where his business was to be carried on. He was merely waiting for the opportunity
to discuss it with the prospect. One cannot help but conjecture as to what the lower court's
view would have been in the instant case had Heidtman injured himself while just walking
around rather than while walking during participation in the archery meet.
The cases of Fintzel v. Stoddard Tractor, 219 Iowa 1263, 260 N.W. 725, and Sawtell v.
Stern Bros. & Co., 226 Mo.App. 485, 44 S.W.2d 264, support my view, though in the latter
case the salesman did depart momentarily from the place where he was to meet his
customer, and the court determined such departure to be insignificant.
momentarily from the place where he was to meet his customer, and the court determined
such departure to be insignificant.
For the reasons mentioned, I would conclude that Heidtman sustained an injury by
accident, arising out of and in the course of his employment. NRS 616.270(1).
____________
78 Nev. 38, 38 (1962) Bryan v. State
WILLIAM JOSEPH BRYAN, Jr., Appellant, v.
STATE OF NEVADA, Respondent.
No. 4468
February 7, 1962 368 P.2d 672
The defendant was convicted in the trial court of furnishing liquor to a minor and was
required to pay fine of $1,000. The defendant paid the fine and appealed from the judgment
of conviction and from an order denying a new trial, and the State made a motion to dismiss
the appeal, on ground that the defendant, having satisfied fully the judgment against him, lost
the right to appeal. The Supreme Court held that the defendant lost the right to appeal.
On motion to dismiss appeal. Motion granted.
[Rehearing denied March 7, 1962]
Harry E. Claiborne, of Las Vegas, and Matthews and Stanley, of Los Angeles, California,
for Appellant.
Roger D. Foley, Attorney General, William J. Raggio, District Attorney, Herbert F.
Ahlswede, Deputy District Attorney, and Drake DeLanoy, Deputy District Attorney, Washoe
County, for Respondent.
78 Nev. 38, 39 (1962) Bryan v. State
Criminal Law.
Defendant, who paid fine of $1,000 imposed on his conviction of furnishing liquor to minor, lost right to
appeal, and his appeal would be dismissed.
OPINION
Per Curiam:
Pursuant to a judgment convicting him of the crime of furnishing liquor to a minor, a gross
misdemeanor, appellant was sentenced to pay a fine of $1,000. At the time of the rendition of
sentence he paid the fine in open court and was discharged from custody.
Appeal is taken from the judgment of conviction and from the order denying a new trial.
The State has moved to dismiss the appeal upon the ground that appellant having satisfied
fully the judgment against him has lost the right to appeal.
In State v. Pray, 30 Nev. 206, 94 P. 218, a stronger situation was presented to this court in
that Pray paid his fine under protest and under stipulation that such fine be held by the clerk,
and should not prejudice his right to appeal. We held however that where one convicted of a
crime has paid his fine, since the money could not be returned to him, and no effective relief
could be granted in the event of a reversal of the judgment, the appeal must be dismissed.
Appellant acknowledges such holding, but calls attention to the fact that a conflict existed
among the authorities whether a voluntary satisfaction of a judgment precluded the right of
appeal. In that case we recognized such conflict but dismissed the appeal in accordance with
the decided weight of authority. Appellant, in effect, asks us to reconsider the Pray case,
decided in 1908, and arrive at a different conclusion. In State v. Cohen, 45 Nev. 266, 201 P.
1027, 18 A.L.R. 864, decided in 1921, we approved State v. Pray, and repeated: While there
are cases to the contrary, the weight of authority is to the effect that an appeal or writ of error
will be dismissed when there has been a voluntary payment by the defendant of the fine
imposed.
78 Nev. 38, 40 (1962) Bryan v. State
defendant of the fine imposed. * * * Appellant's opportunity to relieve himself of any odium
that may have attached to his name on account of his conviction was lost by his failure to
avail himself of the procedure provided for staying execution of judgment, pending an
appeal.
We see no reason at this time for not adhering to the rule so established in this state.
Appeal dismissed.
____________
78 Nev. 40, 40 (1962) O'Connell v. Cox
GRIZZ O'CONNELL, PETE IRVINE WALLER and WILLIAM ROTSIOS,
Appellants, v. TOM COX, Respondent.
No. 4425
February 19, 1962 368 P.2d 761
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge.
Action to recover balance due for trucking services allegedly furnished to individual
defendants. The lower court rendered judgment for the plaintiff and the defendants appealed.
The Supreme Court, McNamee, J., held that evidence compelled conclusion that plaintiff at
all times dealt with company to which services were rendered as corporation and failed to
show any conduct on part of individual defendants which caused plaintiff to rely on their
personal liability.
Reversed.
Springmeyer, Thompson & Dixon, and Robert A. Groves, of Reno, for Appellants
O'Connell and Waller.
Thomas A. Cooke, of Reno, for Appellant Rotsios.
John Chrislaw, of Gardnerville, for Respondent.
Carriers.
Evidence compelled conclusion that plaintiff, in furnishing trucking services, at all times dealt with
company to which services were rendered as corporation and failed to show any conduct
on part of individual defendants which caused plaintiff to rely on their personal
liability.
services were rendered as corporation and failed to show any conduct on part of individual defendants
which caused plaintiff to rely on their personal liability.
OPINION
This is an action brought by respondent to recover $2,282.07 from the appellants, being
the balance due for trucking services he allegedly furnished to them. The separate answers of
the appellants deny liability and affirmatively allege that the services, if any, were not
furnished to the appellants but to Airo Produce, Inc., a corporation. The court found that the
respondent rendered the trucking services to the appellants, as individuals, at their request,
and that the balance due respondent therefor was $2,282.07. The court further found that each
appellant led respondent to believe that the said services were rendered to them as individuals
and not to them as a corporation. Judgment was entered in favor of respondent for the balance
found due, plus interest and attorney fees. Appeal is from the judgment.
The opening brief assigns the following errors:
1. Error in awarding judgment against appellants upon the contract obligation of the
corporation.
2. Error in disregarding the corporate entity in the absence of pleadings or proof
warranting such action.
3. The evidence does not support the findings or the judgment.
4. The findings do not support the judgment.
Because we have concluded that a reversal is required, our discussion will be limited to the
third error assigned.
The evidence shows that on February 26, 1959 the appellants, as incorporators, filed with
the Secretary of State articles of incorporation for Airo Produce, Inc., and on said day, a
certificate of such filing was issued. On February 27, 1959 the first meeting of the
incorporators and the board of directors was held, at which time bylaws were adopted. The
minutes of this meeting and the bylaws were not signed, however, until June 10, 1959.
On February 26, 1959 an annual general business license and a building permit were
issued by the city of Reno to Airo Produce, Inc. On March 1, 1959 the corporation began
operating a produce business from a warehouse it had leased, located at 1005 W. 6th Street,
Reno. The business license was posted on a window of the warehouse between the loading
dock and the office, and the permit was posted on the wall of the walk-in refrigerator inside
the warehouse. On the front of the warehouse, over the main entrance, a red and white sign, at
least two feet high and ten or twelve feet long, worded AIRO PRODUCE, INC., was placed
sometime prior to March 30, 1959.
Appellant Rotsios was manager of the company and he hired respondent to haul produce
between Winnemucca and Reno, and between Reno and Los Angeles, for the period
commencing March 30, 1959, when respondent obtained his first load at the warehouse, and
ending April 28, 1959. On the last-mentioned date there remained due to respondent for such
hauling the sum of $2,282.07. For each trip respondent submitted a bill, four of which were
made out to Airo Produce, Inc., four to Airo Produce Co., and two to Airo Produce Co., Inc.
The payments respondent received consisted of corporate checks, the maker being Airo
Produce, Inc., and signed by O'Connell and Rotsios, except for two $100 cash payments and
one personal check of Rotsios given at a time when neither O'Connell nor Waller was present
to cosign as required by the bank's signature card.
Rotsios testified that when he first met respondent at the warehouse on March 30, 1959,
respondent noticed the sign AIRO PRODUCE, INC., and when he asked if the business
was a corporation, Rotsios said that it was and that he was manager and vice president of the
corporation. Respondent denied that any such conversation had taken place. I don't believe
there was a mention made of it until about the middle of April. He admitted, however, that
he had noticed the sign AIRO PRODUCE, INC. on the building before he had commenced
his first haul.
O'Connell testified that it was possible he told respondent that Airo Produce, Inc., was not
a corporation sometime after April 28, 1959. On the other hand, respondent testified that
about April 15 when he had about $1,000 due him, he asked O'Connell if the business was
incorporated, and that O'Connell had replied that he did not believe the corporate papers had
been filed. Respondent further testified that on May 14, when he asked Waller to sign a
personal note for the amount owed, Waller had said that he did not believe they were
incorporated.
It was upon the foregoing evidence that the lower court found that respondent's services
had been rendered not to the corporation but to the appellants as individuals, and that
appellants had led respondent to believe that he was dealing with individuals.
We are not concerned with the question whether or not Airo Produce, Inc., was a de jure
corporation. In fact, respondent does not attack its corporate existence but premises his brief
on the assumption that Airo Produce, Inc., was an existing corporation, and then states it is
submitted that the appellants would still be individually liable to the respondent.
The foregoing evidence shows conclusively that respondent was put on notice that the
company was a corporate entity. Corporate affairs were carried on in the corporate name, not
only by the officers of the corporation, but also by respondent when his dealings with the
company required his use of the name.
In giving effect to respondent's testimony wherever it conflicts with that of O'Connell and
Rotsios, we find nothing that caused any doubt in respondent's mind as to corporate existence
until April 15, 1959, at a time when his period of employment was more than half completed.
Even then, when Rotsios and O'Connell might have said something which could have caused
doubt of the company's corporate existence, none of the appellants ever represented to
respondent that he could look to the personal liability of the appellants for satisfaction of his
claims as was the situation in Swartout v. Grover Collins Drilling, 75 Nev. 297, 339 P.2d
768.
In fact, respondent for his trip on April 15, 1959 and subsequent thereto, continued to submit
his individual statements naming Airo Produce, Inc., as the debtor. Any representation
appellant Waller might have made relative to the corporate entity took place more than two
weeks after respondent's last services had been performed.
The evidence showing without contradiction that respondent at all times dealt with the
company as a corporation and failing to show that any conduct on the part of the appellants or
any of them caused respondent to rely on the personal liability of appellants, does not support
the findings or the judgment based thereon.
Reversed.
Badt, C. J., and Bowen, D. J., concur.
Thompson, J., being disqualified, the Governor designated Honorable Grant L. Bowen,
____________
78 Nev. 44, 44 (1962) Rocky Mountain Produce Trucking Co. v. Johnson
ROCKY MOUNTAIN PRODUCE TRUCKING COMPANY; RADIO CAB COMPANY OF
ELY, NEVADA; DOROTHY BLEDSOE (GRAY) and V. P. ENCE, Appellants, v. DONNA
M. JOHNSON, Widow of Carl E. Johnson, Deceased, and TOMMY CARL JOHNSON,
DEBRA K. JOHNSON, JAMES RICHARD JOHNSON, CARL E. JOHNSON, Minor
Children of Deceased, Carl E. Johnson, by Their Mother and Guardian Ad Litem, DONNA
M. JOHNSON, Respondents.
No. 4405
February 20, 1962 369 P.2d 198
Appeal from order granting a new trial entered by the Seventh Judicial District Court,
White Pine County; Jon R. Collins, Judge.
Action for wrongful death of plaintiff's decedent who was killed when automobile in
which he was riding collided with rear of a tractor-trailer owned by one of the defendants.
collided with rear of a tractor-trailer owned by one of the defendants. The lower court after a
verdict for defendants awarded plaintiff a new trial, and defendants appealed. The Supreme
Court, Thompson, J., held that neither southbound taxi driver who pulled into north-bound
lane of highway and stopped beside a stopped tractor-trailer, with headlights of the taxi on,
nor driver of tractor-trailer, who stopped with the vehicle partially on the highway, were
guilty of wanton misconduct in so blocking or partially blocking north bound lane of the
highway.
Reversed.
Gray and Horton, of Ely; Goldwater, Taber and Hill, of Reno, for Appellants.
A. D. Demetras, of Ely; Belli, Ashe & Gerry, of San Francisco; Bridwell & Reynolds, of
Salt Lake City, for Respondents.
1. Appeal and Error.
Concern on appeal from grant of a new trial is whether trial court abused its discretion in granting a new
trial, either for reason which it assigned, or for any other valid reason.
2. Negligence.
Wanton misconduct, involves an intention to perform an act that the actor knows, or should know, will
probably cause harm, and such term should not be used interchangeably with the term wanton
negligence, the use of which is repudiated.
3. Trial.
Each party to a lawsuit is entitled to have jury instructed on all of his theories of the case that are supported
by pleadings and evidence, although a court should not instruct on a theory of the case not supported by
any evidence.
4. Trial.
If reasonable minds might differ in drawing a conclusion from facts presented, jury should be permitted
to decide the issue as an issue of fact, but if reasonable minds could not differ in drawing a conclusion from
facts presented, a court should decide the issue as a matter of law.
5. Negligence.
Contributory negligence, if any, of driver of owner's automobile, in which owner was riding at time of
collision with a truck, although a defense to a claim for relief based upon negligence of defendants, was not
a defense to a claim for relief based upon wanton misconduct.
6. Automobiles.
Neither southbound taxi driver who pulled into north bound lane of highway and stopped beside a
stopped tractor-trailer, with headlights of the taxi on, nor driver of tractor-trailer who stopped with the
vehicle partially on the highway, were guilty of wanton misconduct in so blocking or partially blocking
north bound lane of the highway.
7. New Trial.
Grant of a new trial because of failure to submit an issue on wanton misconduct was an abuse of
discretion, where a jury question as to wanton misconduct was not established.
8. Automobiles.
A motorist was not confronted with a sudden unexpected peril, and sudden peril doctrine did not apply,
where motorist saw lights of a taxicab stopped in motorist's lane of travel when motorist was one mile away
from the taxicab, and when he was one-quarter of a mile from the taxicab motorist knew that the taxicab
was in his lane of traffic and at a standstill.
9. Negligence.
Although negligence of driver is imputed to owner of automobile where owner is riding in the
automobile, and driver is driving at request of owner, if owner in fact does not retain control of driver,
presumption of agency is rebutted, and driver's negligence cannot be imputed to owner.
10. Automobiles.
Giving an instruction as to duty of driver of a motor vehicle in the nighttime to drive at such rate of speed
that he can stop within distance highway is illuminated by lights of his automobile, was proper where road
was straight and slightly upgrade, elements did not diminish visibility, driver was aware of lights on the
highway before him when he was about one mile away, and at a point about one-quarter of a mile from
point of collision knew that a vehicle was in his lane of traffic and was at a standstill.
OPINION
Mrs. Johnson, widow of Carl Johnson, deceased, for herself and as guardian ad litem of
their four minor children, commenced a wrongful death action against Rocky Mountain
Produce Trucking Company, its agent-driver V. P. Ence, and Radio Cab Company of Ely,
Nevada, and its agent-driver Dorothy Gray. The basis for the suit was the alleged negligent
and wanton misconduct of each defendant. General damages of $200,000, and punitive
damages of $50,000 were sought. The decedent was a passenger in a car owned by him,
but driven by Gordon Hildebrand.
decedent was a passenger in a car owned by him, but driven by Gordon Hildebrand.
The defendants answered the complaint by denying the charge of negligent and wanton
misconduct, and pleaded three affirmative defenses; first, that the death of Carl Johnson was
solely and proximately caused by the negligence of Hildebrand; second, that the death of Carl
Johnson was contributed to by his own negligent failure to keep a proper lookout and to warn
Hildebrand of any impending danger; and, third, that the negligence of Hildebrand was
imputed to the deceased, Carl Johnson, by reason of the latter's ownership of the car in which
they were riding. On the issues thus joined, the case was tried before a jury, and a verdict
returned in favor of the defendants and against the plaintiffs.
The plaintiffs moved for a new trial. They contended that the trial court erred in the
following particulars:
(1) In failing to give their requested instruction advising the jury that the contributory
negligence of the driver Hildebrand would not bar a recovery from the defendants if the
latter's misconduct was found to have been wanton. Coupled with this complaint was the
contention that error occurred when the court instructed the jury that the contributory
negligence of Hildebrand, if found to exist, would bar a recovery by plaintiffs.
(2) In failing to give their requested instruction regarding the sudden peril doctrine.
(3) In giving an instruction advising the jury that a rebuttable presumption existed that
Hildebrand drove the car as the agent of Johnson, the passenger-owner; and that if Hildebrand
was found, by a preponderance of the evidence, to have been negligent, and if said
presumption was not rebutted, his negligence was to be imputed to the owner, Johnson.
(4) In giving an instruction regarding the range of vision rule, i.e., that it is the duty of a
driver in the nighttime to keep his vehicle under such control that he could stop within the
distance the highway is illuminated by its lights.
The lower court granted a new trial for the sole reason that it had failed to instruct the jury
that the contributory negligence of the driver Hildebrand would not bar a recovery from the
defendants, if the latter's misconduct was found to have been wanton. The court
acknowledged that the instruction offered by plaintiffs in this regard was not correct, but
believed it to be the court's duty to have modified and given such instruction in correct form.
The court found all other claims of error above set forth, (2), (3) and (4) to be without merit.
From such order granting a new trial, the defendants below have appealed.
[Headnote 1]
I. The posture of this case on appeal: As noted, the lower court did not order a new trial
because of the insufficiency of the evidence to justify the verdict. Rather, it did so for the sole
reason that it had failed to instruct the jury on one phase of the plaintiffs' theory of the case,
namely, that the contributory negligence, if any, of the driver of the car in which the decedent
was a passenger, would not bar a recovery by the plaintiffs, the heirs of decedent, should the
jury determine that the defendants, or either of them, had been guilty of wanton misconduct.
Our concern, therefore, is to review the record and determine whether the trial court abused
its discretion in granting a new trial, either for the reason which it assigned, or for any other
valid reason. Cf. Nevada Rock & Sand Co. v. Grich, 59 Nev. 345, 93 P.2d 513; Arrowhead
Freight Lines v. White, 71 Nev. 257, 287 P.2d 718; Pagni v. City of Sparks, 72 Nev. 41, 293
P.2d 421; Schopper v. Kelley, 75 Nev. 520, 347 P.2d 279.
With this in mind, we turn to a statement of the facts, with particular emphasis upon those
facts most favorable to the plaintiffs below, and respondents here.
II. The facts surrounding the accident: At about 11:00 p. m. on October 27, 1957, a car
owned by Carl Johnson and driven by Gordon Hildebrand ran into the left rear end of an
International tractor and trailer owned by Rocky Mountain Produce Company, and driven by
V. P. Ence. Both vehicles were headed north on U. S. Highway 93 toward Ely.
on U. S. Highway 93 toward Ely. At the time of this collision, a taxicab owned by Radio Cab
Company and operated by Dorothy Gray was also at the scene.
The collision occurred about four miles south of Ely, at which point, and for several miles
each way, the highway ran in a generally north-south direction. It was paved, 32 feet wide,
and separated into two lanes by a white dividing center line. The east shoulder of the road at
the scene of the accident was graveled and dropped off sharply. The road was dry, straight,
and slightly upgrade to the north.
Sometime before the collision, the tractor-trailer, north bound, had run out of fuel. Ence,
the driver, pulled the rig toward the right shoulder of the road, and parked it with its left
wheels on the pavement and its right wheels on the unpaved shoulder. He caught a ride to
Ely, obtained fuel, and had returned in the taxicab driven by Dorothy Gray when the Johnson
vehicle, driven by Hildebrand, came upon the scene. Ence had just completed refueling the
tractor, had started the motor, and had pulled the rig forward three to five feet when the
collision occurred.
The impact was of such force that the car was demolished, the spring hangers of the
trailer's left rear springs were sheared off, and the left rear dual wheels suspended by said
springs driven forward underneath the frame of the trailer. Carl Johnson was killed.
Johnson, Hildebrand and others had been on a hunting trip and were returning to Ely. They
had been drinking beer during the afternoon and evening. About 25 miles before the scene of
the accident, Johnson asked Hildebrand to drive because he, Johnson, was tired. Hildebrand
did so. Johnson moved to the middle of the front seat, with another of the hunting party,
Merlin Wilks, to his right and also in the front seat. Hildebrand believed that Johnson and
Wilks fell asleep sometime before the accident.
The matters just related are not in dispute. However, the position of the taxi and
tractor-trailer on the highway immediately before and at the time of collision were; also, the
circumstances with reference to lights.
In relating those circumstances, we shall refer only to the testimony most favorable to the
plaintiffs' theory of the case.
About one mile before the scene of the accident, Hildebrand noticed the headlights of a car
facing him. Hildebrand was then driving about 50 to 55 miles per hour. Those headlights
were, thereafter, constantly within his view. At a point about one-quarter of a mile from them,
he realized that the car was in his lane of traffic and at a standstill. He lowered his lights from
high to low beam, illuminating the highway before him about 100 feet. He noticed that the
lights of the car which he saw ahead of him were from the taxi which was parked alongside
and to the west of the tractor in the north bound lane of traffic. He did not see clearance lights
on the trailer. He reduced speed to about 15 miles per hour, pulled to the right and then turned
to the left when he saw the rear end of the trailer, in an attempt to avoid a collision. The right
front of the car hit the left rear of the trailer. Such are the relevant facts, stated most favorably
to the plaintiffs, from which we must resolve the legal issue regarding wanton misconduct. In
the discussion to follow, we shall refer to the plaintiffs below, respondents here, collectively
as Johnson; the defendants below (principal and agent), appellants here, as the Taxi and
Rocky Mountain; the decedent, Carl Johnson, as passenger-owner; and the driver Gordon
Hildebrand as Hildebrand.
[Headnote 2]
III. Was the issue of wanton misconduct one of fact or law? Before discussing this issue,
we wish to resolve a confusion in the use of language. In Crosman v. Southern Pacific Co., 44
Nev. 286, 301, 194 P. 839, 843, this court used interchangeably and without distinction, the
terms wanton conduct and wanton negligence. Other courts have done the same. Though
a matter of semantics, we believe a confusion has arisen because of such usage, and desire to
resolve it. Accordingly, we repudiate the use of the term wanton negligence. We consider
the following language of Justice Traynor in Donnelly v. Southern Pacific Co.,
Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 869, 118 P.2d 465, 468, 469, most helpful:
Negligence is an unintentional tort, a failure to exercise the degree of care in a given
situation that a reasonable man under similar circumstances would exercise to protect others
from harm. Rest. Torts, secs. 282, 283, 284; Prosser, Torts, sec. 30 et seq. A negligent person
has no desire to cause the harm that results from his carelessness. Rest. Torts, sec. 282(c).
And he must be distinguished from a person guilty of willful misconduct, such as assault and
battery, who intends to cause harm. Prosser, Torts, p. 261. Willfulness and negligence are
contradictory terms. Kelly v. Malott, 7 Cir., 135 F. 74; Neary v. Northern Pac. R. Co., 41
Mont. 480, 110 P. 226; Michels v. Boruta, Tex.Civ.App., 122 S.W.2d 216. If conduct is
negligent, it is not willful; if it is willful, it is not negligent. It is frequently difficult, however,
to characterize conduct as willful or negligent. A tort having some of the characteristics of
both negligence and willfulness occurs when a person with no intent to cause harm
intentionally performs an act so unreasonable and dangerous that he knows, or should know,
it is highly probable that harm will result. Rest. Torts, sec. 500 et seq; Prosser, Torts, pp. 260,
261. Such a tort has been labelled willful negligence', wanton and willful negligence',
wanton and willful misconduct', and even gross negligence.' It is most accurately
designated as wanton and reckless misconduct. It involves no intention, as does willful
misconduct, to do harm, and it differs from negligence in that it does involve an intention to
perform an act that the actor knows, or should know, will very probably cause harm. See
Kastel v. Stieber, 215 Cal. 37, 46, 8 P.2d 474; Albers v. Shell Co., 104 Cal.App. 733, 286 P.
752; Tognazzini v. Freeman, 18 Cal.App. 468, 123 P. 540; 45 C.J. 674. Wanton and reckless
misconduct is more closely akin to willful misconduct than to negligence, and it has most of
the legal consequences of willful misconduct.
Thus we see that wanton misconduct involves an intention to perform in act that the actor
knows, or should know, will very probably cause harm.
should know, will very probably cause harm. In substance, this is the same definition
approved by this court in Crosman v. Southern Pacific Co., supra, where it was stated, * * *
the party doing the act, * * * though having no intent to injure, must be conscious from his
knowledge of surrounding circumstances and existing conditions, that his conduct will
naturally and probably result in injury.
[Headnotes 3, 4]
We turn now to a discussion of the question posed: Was the issue of wanton misconduct
one of fact or law? The mere allegation of wanton misconduct does not entitle the one
seeking relief to a jury instruction thereon. However we are mindful of the following well
recognized principles: Each party to a lawsuit is entitled to have the jury instructed on all of
his theories of the case that are supported by the pleadings and the evidence. Dearden v. Galli,
70 Nev. 543, 277 P.2d 381; Phillips v. G. L. Truman Excavation Company, 55 Cal.2d 801, 13
Cal.Rptr. 401, 362 P.2d 33. A court should not instruct a jury on a theory of the case which is
not supported by any evidence. Nevada Transfer & Warehouse Co. v. Peterson, 60 Nev. 87,
90, 107, 89 P.2d 8, 99 P.2d 633, 640; Wyatt v. State, 77 Nev. 490, 367 P.2d 104; State v.
Alsup, 69 Nev. 121, 243 P.2d 256; State v. Moore, 48 Nev. 405, 233 P. 523. If reasonable
minds might differ in drawing a conclusion from the facts presented, a jury should be
permitted to decide the issue, as an issue of fact. On the other hand, if reasonable minds
should not differ in drawing a conclusion from the facts presented, a court should decide the
issue, as a matter of law. Kuser v. Barengo, 70 Nev. 66, 254 P.2d 447; Gordon v. Cal-Neva
Lodge, Inc., 71 Nev. 336, 291 P.2d 1054; Wilson v. Payne, 74 Nev. 312, 330 P.2d 120; Troop
v. Young, 75 Nev. 434, 345 P.2d 226.
[Headnote 5]
All agree that the contributory negligence, if any, of Hildebrand, though a defense to a
claim for relief, based upon negligence, was not a defense to a claim for relief based upon
wanton misconduct. Crosman v. Southern Pacific Co., supra; dictum in Cox v.
Pacific Co., supra; dictum in Cox v. Los Angeles & Salt Lake Railroad Co. 56 Nev. 472, 56
P.2d 149; annot. in 38 A.L.R. 1424; 72 A.L.R. 1357; 92 A.L.R. 1367; 119 A.L.R. 654.
Therefore, if the facts heretofore related would permit reasonable minds to draw different
conclusions on the issue of wanton misconduct, the lower court was correct in ordering a new
trial to permit a jury, as the trier of fact, to determine that issue. On the other hand, if such
facts would not permit reasonable minds to conclude differently on that issue, the court below
should not have granted a new trial for the reason it gave (i.e., for its failure to properly
instruct the jury that the contributory negligence of Hildebrand, if any, would not bar a
recovery by the plaintiffs if the defendants, or either of them, were guilty of wanton
misconduct), for such issue would be a matter of law solely for the court's determination.
Without question, it is difficult for an appellate court to announce what reasonable
minds would conclude from a given factual presentation. Yet, such is our obligation. Upon
the record before us, we cannot conclude that reasonable men would view the issue of wanton
misconduct differently. In our judgment, reasonable minds would not label the conduct of
either the Taxi or Rocky Mountain to be the kind of conduct that the actor knows, or should
know, would very probably cause harm to another. The driver of each, before and at the time
of collision, knew: that the southbound lane of traffic was open for traffic; that the area of
their presence was lighted by the headlights of the Taxi, if not by the tractor-trailer; that the
road was straight, slightly upgrade, and dry; that any car coming from the south would, or
should, observe the lights of the Taxi for a great distance before approaching the area
occupied by the Taxi and rig, and should act accordingly. In the light of such knowledge and
circumstances, we hold that wanton misconduct did not exist as a matter of law. Cf. Crosman
v. Southern Pacific Co., supra, where this court affirmed a judgment of nonsuit entered
against the plaintiff, believing the evidence insufficient, as a matter of law, to establish
wanton misconduct; Mitrovich v. Pavlovich, 61 Nev. 62, 114 P.2d 10S4, where this court
affirmed a court judgment for defendant, holding, as a matter of law, that the facts there
involved did not establish either willful or wanton misconduct under California law; Hart
v. Kline, 61 Nev. 96, 116 P.2d 672, where this court affirmed a judgment of nonsuit
entered against the plaintiff, holding, as a matter of law, that the facts did not present a
case of either gross negligence or willful misconduct; Garland v. Greenspan, 74 Nev. SS
wanton misconduct; Mitrovich v. Pavlovich, 61 Nev. 62, 114 P.2d 1084, where this court
affirmed a court judgment for defendant, holding, as a matter of law, that the facts there
involved did not establish either willful or wanton misconduct under California law; Hart v.
Kline, 61 Nev. 96, 116 P.2d 672, where this court affirmed a judgment of nonsuit entered
against the plaintiff, holding, as a matter of law, that the facts did not present a case of either
gross negligence or willful misconduct; Garland v. Greenspan, 74 Nev. 88, 323 P.2d 27,
where this court affirmed a court judgment for defendant, holding, as a matter of law, that
neither gross negligence nor willful misconduct had been established.
1
We shall mention
briefly the single authority relied upon by Johnson to support her contention that the issue of
wanton misconduct was one of fact and should have been submitted to the jury. That case is
Adkisson v. Seattle, 42 Wash.2d 676, 258 P.2d 461, and is so dissimilar factually as to be of
no assistance. There, a pile of dirt had been left on the street by defendants while in the
course of sewer and water main construction. It was unguarded, and without lights. Its
presence was unknown. Vehicles came upon it suddenly and without warning. Such are not
the facts of the case before us.
[Headnotes 6, 7]
In our view, the defendants were not guilty of wanton misconduct. The claim for relief on
that ground was not established, as a matter of law. The court below was correct initially
when it declined to submit such an instruction to the jury.
2
In granting a new trial because of
its failure to submit such issue to the jury, the lower court abused its discretion.
____________________

1
The cases cited are not factually similar to the case of bar. Citation is made solely to mention some instances
where the Nevada court has found that either gross negligence, wanton misconduct, or willful misconduct did
not exist as a matter of law.

2
The court did instruct regarding punitive damages. This was error, NRS 41.090; Benner v. Truckee River
General Electric Co., 9 Cir., 193 F. 740, but harmless, because defendants prevailed. Johnson v. Batteen, 144
Neb. 384, 13 N.W.2d 625; Gower v. Trumbo, 181 S.W.2d 653 (Mo. 1944).
Though we have determined that the reason assigned by the court below for granting a new
trial was incorrect as a matter of law, there may have been other reasons for such action
which have merit. We must, therefore, examine such other reasons advanced by Johnson,
plaintiffs below and respondents here, urging that a new trial was required in any event.
[Headnote 8]
IV. Was it error to refuse an instruction on the sudden peril doctrine? In support of
the motion for new trial, and again on appeal, Johnson urged that the jury should have been
instructed regarding the sudden peril doctrine. The evidence most favorable to Johnson's
theory of the case reveals that the driver, Hildebrand, saw the lights of the taxi when he was
one mile away from it; that when he was one-quarter of a mile from the taxi he knew that it
was in his lane of traffic and at a standstill. Under such circumstances, it is manifest that
Hildebrand was not confronted with a sudden and unexpected peril. Cf. Kuist v. Curran, 116
Cal.App.2d 404, 253 P.2d 681; Fraser v. Stellinger, 52 Cal.App.2d 564, 126 P.2d 653, where
a truck driver had a bicyclist in view for 1,000 feet before collision, and the court held that it
was proper not to instruct regarding imminent peril; Dougherty v. Ellingson, 97 Cal.App. 87,
275 P. 456, where the court noted that the driver saw the other automobile in ample time to
have prevented the collision, and was not suddenly confronted with peril. The lower court
correctly refused to instruct the jury regarding the sudden peril doctrine.
[Headnote 9]
V. Was it error to instruct the jury that a rebuttable presumption arose that Hildebrand
drove the car as the agent of the owner, Carl Johnson?
The instruction in this regard, of which Johnson complained in urging a new trial, and now
urges to support the order for new trial, reads: The evidence shows in this case that at the
time the accident occurred, Carl E. Johnson, the owner of the Chevrolet automobile, had
requested Gordon Hildebrand to drive it and that while it was being so driven, the owner
remained in the vehicle as a rider therein.
while it was being so driven, the owner remained in the vehicle as a rider therein. Under such
circumstances, it is presumed that the driver was operating the vehicle as the agent of the
owner, and if you should find by a preponderance of the evidence that the driver, Gordon
Hildebrand, was negligent in the operation of the Chevrolet automobile, such negligence is
imputed to the owner, Carl E. Johnson.
If you find, however, from a preponderance of the evidence, that Carl E. Johnson
permitted Gordon Hildebrand to drive his automobile, and in so doing, he did not retain
control of the direction over the automobile while Gordon Hildebrand was driving it, then
you may find the presumption of agency is rebutted, and regardless of whether Gordon
Hildebrand was negligent or not, it cannot be imputed to Carl E. Johnson to deprive Plaintiffs
of any damage to which you might otherwise find them entitled under these instructions.
This court has not heretofore passed upon the propriety of such instruction or the
principles of law therein announced. True, this court in Zimmerman v. District Court, 74 Nev.
344, 347, 348, 332 P.2d 654, 656, recognized what appeared to be the weight of authority,
when it said: Despite numerous cases to the contrary, we concede that in most jurisdictions
in this country, where the owner-driver situation exists, a principal agent relationship (and
therefore an owner liability) is presumed. But whether this be a fact inference, or a policy
presumption, or an administrative presumption, or one arising out of expediency (the cases
are replete with abstract and academic discussions of its nature) its basis is the inference (or
the presumption, if one prefers) that an owner is likely to be in control of his own property.
See Annots., 147 A.L.R. 960, 50 A.L.R.2d 1281. However, Zimmerman neither approved nor
rejected the apparent weight of authority for such issue was not before it for determination.
We must do one or the other here.
Johnson asked Hildebrand to drive, because he, Johnson, was tired. Sometime after
Hildebrand assumed the wheel, but before the accident, Johnson fell asleep; at least, such
was Hildebrand's belief.
least, such was Hildebrand's belief. The jurors, as the exclusive judges of the credibility of the
witnesses, were at liberty to either accept or reject such testimony. J. C. Penney Co. v.
Gravelle, 62 Nev. 434, 439, 455, 144 P.2d 487, 155 P.2d 477, 484; Jones v. Golick, 46 Nev.
10, 21, 206 P. 679, 682. However, by reason of such evidence, it is strenuously urged that to
impute the negligence of the driver to the owner-passenger would result in a manifest
injustice, for the sleeping owner-passenger could not have been exercising control over the
driver at the time of accident. This argument is premised upon the case of Johnson v. Los
Angeles-Seattle Motor Express, Inc., 222 Ore. 377, 352 P.2d 1091. However, the instruction
under consideration in that case was quite different from the one given in the case before us
in that the jury was told that the negligence, if any, of the driver was imputable to the
owner-passenger as a matter of law. For that reason, the reviewing court reversed and
remanded for a new trial. However, in the instant case, the jury was told that it could find an
imputation of negligence if the presumption of agency by reason of car ownership was not
rebutted, but that it could not do so, if it determined that such presumption was rebutted.
Accordingly, the question of whether the negligence of Hildebrand, if any were found, would
be imputed to the owner-passenger to bar a recovery by his heirs, became a question of fact to
be determined by the jury in the light of all relevant circumstances presented.
In deciding whether Nevada should follow the weight of authority, as expressed in the
instruction before us, or adopt the minority point of view, as set forth in Peterson v.
Schneider, 154 Neb. 303, 56 N.W.2d 107; and Davis v. Spindler, 156 Neb. 276, 47 N.W.2d
863, cited by Johnson, we are essentially confronted with the problem of fairness in
presenting proof. Ownership implies the right of control of the driver, which right, in
common experience, is frequently exercised. Whether such right of control was actually
exercised in a particular case depends upon the facts disclosed. In the normal course of
events, knowledge of such facts is within the possession of the occupants of the car, and is
not in the possession of others.
within the possession of the occupants of the car, and is not in the possession of others.
Therefore, in the matter of proof during trial, basic fairness appears to require a rebuttable
presumption of agency, thus casting the burden upon those with presumed knowledge of the
facts to come forward with evidence to overcome such presumption. We understand this to be
the reason for the so-called weight of authority view, and the meaning of the instruction
before us. We accept the instruction as a correct statement of the law to the facts before us,
and find that it was properly given to the jury in this case.
[Headnote 10]
VI. Was it error to instruct the jury regarding the range of vision rule?
In moving for a new trial, Johnson urged that error occurred when the court gave the
following instruction: It is the duty of a driver of a motor vehicle using a public highway in
the nighttime to be vigilant at all times and to drive at such rate of speed and to keep the
vehicle under such control that, to avoid a collision, he can stop within the distance the
highway is illuminated by its lights.
Following argument on the motion for new trial, the court ruled that the quoted instruction
was properly given, though it ordered a new trial for a different reason, as heretofore
discussed. In seeking to support the order for new trial, Johnson again urges that error
resulted from the giving of said instruction.
The great weight of authority has accepted the range of vision rule. See Annots., 44
A.L.R. 1403; 58 A.L.R. 1493; 87 A.L.R. 900; 97 A.L.R. 546. This court approved it in
Burlington Transportation Company v. Wilson, 61 Nev. 22, 24, 110 P.2d 211, 114 P.2d 1094.
However, Johnson asks that we discard the rule, citing cases in which it was not applied.
Under the facts of this case, there is no cogent reason for refusing application of the rule. The
road was straight and slightly upgrade; the elements did not diminish visibility; Hildebrand
was aware of lights on the highway before him when he was about one mile away, and, at a
point about one-quarter of a mile distant, knew that a vehicle was in his lane of traffic and
at a standstill, whereupon he dimmed his lights and reduced his speed.
mile distant, knew that a vehicle was in his lane of traffic and at a standstill, whereupon he
dimmed his lights and reduced his speed. We are not aware of a case which has found it to be
error to instruct a jury regarding the range of vision rule under such circumstances. Indeed,
the facts as disclosed by the trial court's findings of fact in Burlington Transportation Co. v.
Wilson, supra, are not as strong for the application of the rule as are the facts of the instant
case.
We conclude that the court below was right in refusing to instruct the jury regarding the
sudden peril doctrine; that it was correct in giving to the jury the instructions concerning a
rebuttable presumption of agency arising from the owner-passenger and driver relationship
with a resulting imputation of negligence should the jury determine that such presumption
was not satisfactorily overcome; that it was correct in instructing the jury as to the range of
vision rule; but that it abused its discretion in granting a new trial for the assigned reason
because, as a matter of law, there was no evidence from which reasonable minds could
conclude that the defendants below, or either of them, were guilty of wanton misconduct.
Reversed.
____________
78 Nev. 60, 60 (1962) United States v. McLean
In the Matter of the Estate of HENRY C. MCLEAN, Deceased.
UNITED STATES OF AMERICA, Appellant, v.
HARRIET P. MCLEAN, Respondent.
No. 4424
February 22, 1962 368 P.2d 872
Estate proceeding. An appeal was taken by the residuary legatee from an order of the lower
court denying a motion to terminate a widow's allowance. The Supreme Court, McNamee, J.,
held, inter alia, that whether widow's allowance should have been terminated because
widow's conduct allegedly unnecessarily delayed closing of estate was matter for trial court to
determine on evidence, and where record did not disclose what evidence, if any, was
considered by lower court which resulted in exercise of its discretion to deny motion of
residuary legatee for termination, reviewing court could not assume that trial court was guilty
of any abuse of discretion.
Affirmed.
John W. Bonner, United States Attorney for Nevada, and Thomas R. C. Wilson, Jr.,
Assistant United States Attorney. Of Counsel:
Nicholas deB. Katzenback, Howard E. Shapiro, and Mary C. Lawton, Department of
Justice, Washington, D. C., for Appellant.
Richard C. Bennett, of Reno, for Respondent.
1. Executors and Administrators.
Order denying motion to terminate widow's allowance, being in nature of order refusing modification of
family allowance, was appealable. NRS 155.190, subd. 5.
Supreme Court would not, on motion to terminate widow's allowances, review adverse action of lower
court on grounds of motion asserting that widow who was nonresident who had been living apart from
husband was not entitled to allowance and that allowance was not necessary for her support,
as such matters pertained to propriety of making order for allowance which had
become final.
and that allowance was not necessary for her support, as such matters pertained to propriety of making
order for allowance which had become final. NRS 155.190, subd. 5.
Whether widow's allowance should have been terminated because widow's conduct allegedly
unnecessarily delayed closing of estate was matter for trial court to determine on evidence, and where
record did not disclose what evidence, if any, was considered by lower court which resulted in exercise of
its discretion to deny motion of residuary legatee for termination, reviewing court could not assume that
lower court was guilty of any abuse of discretion. NRCP 52(a); NRS 155.190, subd. 5.
OPINION
[Headnote 1]
This is an appeal from an order denying appellant's motion to terminate a widow's
allowance. Heretofore herein we have held that such an order, being in the nature of an order
refusing modification of a family allowance, is appealable. United States v. McLean, 77 Nev.
331, 364 P.2d 407.
It appears from the record and the agreed statement of facts that the lower court on
November 2, 1956 made an order for such allowance. The then executor of the estate
appealed to this court from that order. Although appellant is the chief and residuary
beneficiary under the will of decedent, it did not appeal. The executor's appeal was dismissed
on April 23, 1957.
Thereafter the executor presented to the lower court his motion to vacate and set aside the
order for allowances, which was considered by the lower court not only as a motion to vacate
the original order but also as a motion to terminate payments under the original order. That
motion, as here, was based on the impropriety of making such order originally and on the
ground that the widow had wrongfully initiated and conducted litigation against the estate
which unduly has prolonged settlement of the estate. On April 29, 1958 the court found that
the said litigation had been pursued with diligence and in an orderly manner, and denied the
motion, giving the executor the right to renew the motion to terminate if it later appeared
that the litigation was being unduly prolonged.
motion to terminate if it later appeared that the litigation was being unduly prolonged. The
appellant was not a party to the executor's motion to vacate.
Appellant's written motion to terminate the allowance was filed in the lower court on
February 3, 1961, and therein it moved the court for an order terminating the widow's
allowance on the following grounds: (1) that as a nonresident widow who had been living
apart from her husband at the time of his death, she is not entitled to a widow's allowance; (2)
that a widow's allowance is not necessary for her support and maintenance; and (3) that the
estate is being wasted and the interest of the United States as residuary legatee prejudiced as a
result of the continuance of the widow's allowance and because of delays caused by the
widow. The order denying this motion (and from which this appeal is taken) was made
February 10, 1961. Although the written motion recites that the United States in making the
(oral) motion would rely on the pleadings, transcript of testimony, depositions, records and
documents of record in this cause, and in No. 149352, to show that the moving party is
entitled to an order terminating the widow's allowance, there is nothing in the record in the
nature of evidence or court minutes to show what matters were offered in evidence or
considered by the lower court in its denial of appellant's motion.
The necessity for some record on the hearing of any motion becomes apparent from NRCP
52(a) which provides that findings of fact and conclusions of law are unnecessary on
decisions of any motion.
The absence of the record on the hearing of the motion below was during oral argument in
this court, called to the attention of counsel for appellant. On their request permission was
granted for them to apply for an order to supplement the record on appeal in this respect.
Such application was made to this court and denied for the reason that the proffered
supplemental record gave no indication that the matters contained therein were offered in
evidence or considered by the trial court in its ruling on the motion.
We thus are faced with the bare assertion of counsel that the lower court abused its
discretion in refusing to terminate the allowance.
[Headnotes 2, 3]
It is conceded that the first two grounds upon which the motion was based pertain to the
propriety of making the original order for an allowance. That order was appealable under
NRS 155.190(5), and no appeal having been taken therefrom by the United States it became
final. We will not, on a motion to terminate the allowances, review such action of the lower
court based on such grounds. With respect to the third ground, that the estate is being wasted
because of the conduct of the widow in unnecessarily delaying the closing of the estate, this
was a matter for the court to determine from the evidence.
We have no way of determining what evidence, if any, was considered by the lower court
which resulted in the exercise of its discretion to deny appellant's motion. In the absence
thereof, we cannot assume that the lower court was guilty of an abuse of discretion. Anderson
v. Havas, 77 Nev. 223, 361 P.2d 536.
Affirmed.
____________
78 Nev. 63, 63 (1962) State v. Fuchs
THE STATE OF NEVADA, Appellant, v.
MARY ALLISON FUCHS, Respondent.
No. 4426
February 22, 1962 368 P.2d 869
Appeal from an order of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge, granting a petition for a writ of habeas corpus.
Accused was held to answer in District Court on charge of murder after preliminary
hearing and she filed a petition for writ of habeas corpus. From an order of the lower court
granting the writ, the state appealed. The Supreme Court, Thompson, J., held that the
evidence at the preliminary hearing was sufficient to justify holding accused to answer on
murder charge, notwithstanding her written exculpatory statement introduced at hearing
by the state.
78 Nev. 63, 64 (1962) State v. Fuchs
holding accused to answer on murder charge, notwithstanding her written exculpatory
statement introduced at hearing by the state.
Reversed.
Roger D. Foley, Attorney General; John F. Mendoza, District Attorney, Clark County;
Charles L. Garner, Deputy District Attorney, Clark County, for Appellant.
Tad Porter, of Las Vegas, for Respondent.
1. Habeas Corpus.
Only question for determination on appeal by state from order granting writ of habeas corpus to one held
to answer after preliminary hearing on charge of murder was whether sufficient legal evidence was
presented at preliminary hearing to make it appear that public offense had been committed, and show
sufficient cause to believe accused guilty thereof. NRS 34.380, 171.455.
2. Criminal Law.
Justice of peace, at preliminary hearing on murder charge, could accord to written exculpatory statement
by accused, though introduced in evidence by state, such credit as he deemed it merited and was not bound
thereby. NRS 171.455, 200.160, 200.170.
3. Criminal Law; Habeas Corpus.
Whether accused's exculpatory explanation of homicide was sufficient as defense to murder charge was
question for trier of fact at trial, and it was not duty of justice of the peace at preliminary hearing or district
court on petition for writ of habeas corpus to pass on sufficiency of evidence to justify conviction. NRS
171.455, 200.160, 200.170.
4. Criminal Law.
Evidence at preliminary hearing was sufficient to justify holding accused to answer on murder charge,
notwithstanding her written exculpatory statement introduced at hearing by state. NRS 171.455,
200.160, 200.170.
5. Habeas Corpus.
One held to answer for murder on sufficient evidence at preliminary hearing was not unlawfully
restrained of her liberty and hence was not entitled to writ of habeas corpus discharging her from custody.
NRS 171.455.
OPINION
[Headnote 1]
After a preliminary hearing, Mary Allison Fuchs was held to answer in the district court
upon the charge of murder.
78 Nev. 63, 65 (1962) State v. Fuchs
murder. She thereafter petitioned that court for a writ of habeas corpus, which was granted.
The State has appealed from the order granting such writ. NRS 34.380. The sole question
posed for our determination is whether there was sufficient legal evidence presented at the
preliminary hearing to make it appear that a public offense had been committed, and
sufficient cause to believe the accused guilty thereof. NRS 171.455; Ervin v. Leypoldt, 76
Nev. 297, 352 P.2d 718; Raggio v. Bryan, 76 Nev. 1, 348 P.2d 156; Ex parte Liotard, 47 Nev.
169, 217 P. 960, 30 A.L.R. 63; In re Kelly, 28 Nev. 491, 83 P. 223.
A review of the transcript of the preliminary hearing discloses, among other matters, that
the accused, her three-year-old son and her husband, the decedent, were the only persons in
the home at the time of the homicide; that there was a loaded .45 caliber revolver with a spent
cartridge under the hammer near the body of the deceased; that the cause of death was a
massive intra-abdominal hemorrhage from perforation of the liver by a .45 caliber bullet; that
the accused told police officers that she had shot her husband because he had beaten their son
and had said he would kill him. Without more, the foregoing would make it appear that a
public offense had been committed and that there was sufficient cause to believe the accused
guilty thereof. However, additional evidence, consisting of a written statement by the
accused, was introduced by the State. The accused, respondent here, earnestly contends that
such statement constituted proof by the prosecution establishing a justifiable or excusable
homicide, NRS 200.170, in the defense of another, NRS 200.160; and, that having offered
such proof, the State was bound by it. The statement reads:
I, Mary Allison Fuchs, 35 years of age, residing at 5904 Gipsy Avenue, Las Vegas,
Nevada, make the following statement of my own free will and accord to Officers H. Barrett
and R. Burgess of the Las Vegas Police Department. No threats, duress, coercion or promises
have been made to me in order for me to make this statement. I have been advised as to my
right to consult an attorney before making this statement and I realize it can be used in a
Court of Law against me.
78 Nev. 63, 66 (1962) State v. Fuchs
right to consult an attorney before making this statement and I realize it can be used in a
Court of Law against me. I got home from work at about 4:30 p. m., February 9, 1961. We
had another man living in the house with us until today when he moved out. He had all of his
things packed in his car when I got home. His name is John Baczek and he is working in San
Jose, California. He was ready to leave and asked if Art would be home shortly so I called the
nursery to see if Art had been there to pick up our son. Mrs. Leonard answered and said he
had been there a few minutes before and had picked up Greg and would home [sic] shortly.
He got home about ten minutes to five. He and John talked in the living room and I went to
the bedrooms to straighten up the beds. I was in the kitchen when John left. Art was out front
with him and after he left Art came back into the house. He had bought Greg a sail plane and
they played with it on the patio until about 6:00 p. m. John had left an old car there for Art to
sell for the money he owed him. Art called two friends and asked if they knew anyone who
wanted a work car. I talked to one of these person's wife, Mrs. Nabat, about a possible job I
knew of that she might be interested in when he was on the phone. He also talked to Charlie
Ottenheimer who asked us to come over so about 7:30 p. m., we took Greg and went over to
the Fireside Inn. We visited until about 8:30 or 9:00 p. m. and had two drinks while we were
there. I had had a drink earlier at home. After getting home I went in and put my mau mau
[sic] on and Greg was playing with the airplane. Art had been building a model airplane in the
living room so I told him, Now that John is out you have a room to have all your things in'.
He went into the den and was looking around and then he came out with a picture which was
taken about eight years ago and one manila envelope, a spiral notebook which I had started to
keep a family budget in about five years ago and a white envelope. He said something like
you sure as hell never did anything with this. Then I told him, Well, I started to'. Then he
layed [sic] them down on the sink board. I told him, Well, Art, pick them up and take them
back to the den.
78 Nev. 63, 67 (1962) State v. Fuchs
pick them up and take them back to the den. We'll look at them later or tomorrow'. He took
offense to this and stated, I'm no colored slave you can order around. I'm no
______ ______
gigolo. Just because you bring home the money doesn't mean you can order me around'.
While he was saying this he broke the picture by throwing it onto the floor. I was draining the
spaghetti and I told Greg to take his pajamas into our room and I would get him ready for bed,
which he did. Art got very belligerent about the whole thing and started talking about things
which happened ten years ago, accusing me of slighting him by not consulting him on things.
I said, That's why when we bought this house, before I bought anything, any drapes or
furniture, I consulted you'. He stood up and held up his fist and said, What right do you have
of accusing me of saying these things when I hadn't said it', or words to that effect. He was
furious. I told him that I thought he had been happy with the choice. His voice got very loud
and Greg came out of the bedroom and was standing in the dining room area. Greg started
crying and was very upset. This seemed to infuriate Art and he stormed out of the living room
and hit Greg, knocking him against the wall and his feet came out from under him, causing
him to fall and bump into a table which started to overturn. I ran and grabbed Greg with one
arm and tried to steady the table with the other. I took Greg back and put him in the middle of
the bed and told him to stay there. I then heard Art overturn the table which broke the
glassware on top of it. I had to go to the bathroom which is inside of our room. When I was in
the bathroom I heard Art getting into the linen closet and he said that he realized then that he
could break all the furniture and all the things and things I liked like my records, and that he
could break them all up and tear down the drapes and it wouldn't mean a thing to me but that
the only way he could hurt me was by hurting Greg. He went to the sink and I guess he was
washing off his hands. I was still in the bedroom and Greg seemed to be afraid to cry because
of what had happened to him earlier. I had heard the water running and by that time he was
almost screaming and said something like you or Greg or I won't even be alive tomorrow
and it won't take much to kill him, as he is real little.
78 Nev. 63, 68 (1962) State v. Fuchs
and by that time he was almost screaming and said something like you or Greg or I won't
even be alive tomorrow and it won't take much to kill him, as he is real little. I was still in the
bedroom and I reached up and got the gun. I didn't load this gun but I know that Art keeps all
the hand guns loaded; not the rifles though. I walked back down the hall and went into the
living room to the far end. He came in from the kitchen and he still had the towel in his
hands. I said, You couldn't possibly mean that you would do anything to hurt Greg no matter
how you feel about anything else. You possibly couldn't mean that you would hurt Greg?' I
had the gun at my side but I don't think it was hidden from him. I was standing in front of him
and he sort of pushed me and he said, I'll show you whether or not I mean it or not. I'll finish
him right now'. I was still in his way and then I raised the gun and shot him. I guess I was
right in front of him when I shot but I don't know for sure.
I have read the foregoing statement consisting of almost two typewritten pages. I have
initialed each page and each correction and have signed this page. It is the truth to the best of
my knowledge.
Mary Allison Fuchs
Witnesses:
H. Barrett, Sgt. LVPD
R. H. Burgess # 6 LVPD.
[Headnotes 2, 3]
Whether the State was bound by such exculpatory statement is immaterial. The justice of
the peace was not. In discharging his duty, he could accord to such statement whatever credit
he deemed it warranted. It was not his duty, nor was it the duty of the district court, to pass on
the sufficiency of the evidence to justify conviction. Cf. Ervin v. Leypoldt, supra. The
accused's explanation for the homicide, being in the nature of a defense, whether true or false,
reasonable or unreasonable, is for the trier of the fact to consider at a trial. Neither a
preliminary hearing, no upon a petition for a writ of habeas corpus is designed as a
substitute for this function. Cf. Ex parte Colton, 72 Nev. S3
78 Nev. 63, 69 (1962) State v. Fuchs
as a substitute for this function. Cf. Ex parte Colton, 72 Nev. 83, 295 P.2d 383.
[Headnotes 4, 5]
It is our conclusion that the accused-respondent was bound over to the district court for
trial as a result of a preliminary hearing at which sufficient legal evidence was presented to
make it appear that a public offense had been committed as charged and that there was
sufficient cause to believe her guilty thereof. Under such circumstances she was not
unlawfully restrained of her liberty. Therefore it was error to grant the writ of habeas corpus
which discharged the respondent from custody. Raggio v. Bryan, supra.
Reversed.
____________
78 Nev. 69, 69 (1962) Dredge Corp. v. Husite Co.
THE DREDGE CORPORATION, a Nevada Corporation, Appellant, v. HUSITE
COMPANY, a Nevada Corporation, Respondent.
No. 4413
February 28, 1962 369 P.2d 676
Appeal from judgment of the Eighth Judicial District Court, Clark County; David Zenoff,
Judge.
Action to quiet title to community placer mining claims. From an adverse judgment in the
trial court the plaintiff appealed. The Supreme Court, Badt, C. J., held that in an acre to acre
exchange between the United States and individual under the Taylor Grazing Act there was
no requirement of a reservation of minerals, that a hearing was not required, that the plaintiff
was not deprived of due process and that summary judgment was properly granted for the
defendant.
Affirmed.
[Rehearing denied April 2, 1962]
Deaner, Butler & Adamson, of Las Vegas, and George W. Nilsson, of Los Angeles, for
Appellant.
Cantwell, Loomis & Murphy, of Reno, for Respondent.
1. Mines and Minerals.
When location of a mining claim is perfected under the law, it has the effect of a grant by the United
States of the right of present and exclusive possession, and the claim may be transferred, mortgaged and
inherited without infringing any right of the United States, and so long as the owner complies with the
mining laws, his possessory right is as good as those secured by patent.
2. Public Lands.
A patent is the act of a legally constituted tribunal done within its jurisdiction and passes the title and is
a final judgment as well as a conveyance and is conclusive upon collateral attack.
3. Public Lands.
A patent issued with a reservation of minerals is a conclusive and official declaration that the land is
nonmineral and that all requirements preliminary to the issuance thereof had been complied with and that
all antecedent steps necessary to its issue had been properly taken.
4. Mines and Minerals.
The basis of a valid mining claim is discovery and without a discovery there is no valid mining claim.
5. Public Lands.
Upon a private exchange application under the Taylor Grazing Act, the Department of Interior is required
to investigate the validity of any claim on file with respect to the property, and the rules of the Department
implement the statute including the requirements for examination and recommendation by the United States
Geological Survey as to the mineral or nonmineral character of the land. Taylor Grazing Act. sec. 1 et seq.
as amended 43 U.S.C.A., sec. 315 et seq.
6. Mines and Minerals; Public Lands.
The mere filing of a notice of a placer location without more does not segregate the ground from the
public domain so as to prevent the United States from issuing a patent nor does it prevent the existence of
known mineral grounds.
7. Judgment.
A motion for summary judgment may be supported not only by the pleading but by discovery procedures,
demand for admissions, affidavits and depositions. NRCP 56.
8. Public Lands.
A direct attack upon a patent can only be by an appeal within the proceeding or suit against the
government.
9. Public Lands.
Where attack against patent first appeared in the plaintiff's cause of action against defendant asserting that
it claimed title by patents from the United States and which conveyed no mineral rights to the defendant,
such an attack on the patent was collateral and not direct.
10. Public Lands.
Where exchange under the Taylor Grazing Act was not an acre for acre exchange as between a state and
the United States but a value for value exchange between an individual and the United
States, reservation of minerals by the United States from the patent issued to the
individual was not required.
but a value for value exchange between an individual and the United States, reservation of minerals by the
United States from the patent issued to the individual was not required. Taylor Grazing Act, sec. 8 as
amended 43 U.S.C.A., sec. 315g.
11. Public Lands.
Where the only matter before the Bureau of Land Management was defendant's exchange application of
lands under the Taylor Grazing Act, and during the entire two year period before plaintiff's placer locations
were made, there had not been any mineral location on the ground or any evidence of mining operations
and no protest had been made following the publication of the exchange entry, the Bureau was not required
to initiate a hearing and determination with reference to the validity of any mining claim. Taylor Grazing
Act, sec. 8 as amended 43 U.S.C.A., sec. 315g.
12. Constitutional Law.
Actions and procedures of defendant in connection with exchange of lands with the government under the
Taylor Grazing Act and action of the Department of Interior thereon were not invalid as depriving the
plaintiff, claiming placer mining locations on the lands, of its property without due process of law. Taylor
Grazing Act, sec. 8 as amended 43 U.S.C.A., sec. 315g.
13. Public Lands.
Bureau of Land Management had no duty before proceeding to issue a patent in favor of defendant
exchanging lands under the Taylor Grazing Act to institute a proceeding to determine the validity of the
plaintiff's placer locations on the lands where there was nothing to indicate that the plaintiff had any
interest in the land nor that anyone contended that the ground was mineral in character. Taylor Grazing
Act, sec. 8 as amended 43 U.S.C.A., sec. 315g.
14. Judgment.
Summary judgment was properly entered for defendant in suit to quiet title to placer mining claim on
public lands on the ground of absence of any evidence showing that the plaintiff was the owner of valid
mining claims on the property. NRCP 56(e).
15. Judgment.
Summary judgment is improper where any issue of fact remains for determination.
16. Judgment.
Summary judgment was not improperly granted for the defendant on the ground that an issue of fact was
raised by the pleadings where the pleadings relied upon to create such issue were either verified by the
plaintiff's attorney as true to the best of his knowledge or were not verified at all. NRCP 56(e).
17. Pleadings.
Denial of plaintiff's motion to file an amended complain adding a third and fourth cause of action to quiet
title to community placer mining claims was proper where the proposed amendment added nothing to the
action already asserted.
18. Pleading.
Denying an amendment to complaint which simply would have asserted a claim which on its face was
barred by the statute of frauds was not an abuse of discretion. NRS 111.205 (1).
19. Judgment.
Denying further oral argument in disposing of motion for summary judgment was not error.
Petition for rehearing which, in effect, was a reargument of petitioner's opening and reply briefs was
properly denied.
OPINION
By the Court, Badt, C. J.:
Appellant corporation, which was plaintiff below, will be referred to as Dredge.
Respondent corporation, defendant below, will be referred to as Husite. Dredge filed its
complaint to quiet title to eight community placer mining claims, alleging that it was the
owner and entitled to possession thereof, and that Husite asserted an estate or interest therein,
which was, however, without right. The land covered by the placer claims is described as
sections 16 and 21, T. 20 S., R. 60 E., M.D.B.&M., in Clark County, Nevada. The pleadings
will have to be referred to later at greater length. Under such pleadings and under the
circumstances hereinafter set forth, both parties sought a summary judgment. Dredge's motion
for summary judgment was denied, and Husite's motion for summary judgment granted and
judgment entered accordingly. From such judgment Dredge has appealed.
Dredge claims title by reason of its placer locations. Husite asserts title by reason of two
patents from the United States for some 12,000 acres of land, including the two sections
embraced in the placers. The summary judgment in favor of Husite was based on Husite's
patents. See infra, the chronological order of the locations, filings, etc.
Dredge's amended complaint contained two counts. The first count alleged simply its
ownership of the eight placers, Husite's claim of title, and that the latter was without right.
The second count included such allegations and alleged that Husite claimed title to the
described lands in fee simple by reason of two patents from the United States government;
that said patents were issued in exchange for other lands which were subject to a
reservation of minerals by Southern Pacific Land Company, former owner, and that
Husite's application for an exchange of lands excluded "existing gas and oil leases and
other valid mineral rights"; that, under the provisions of the Taylor Grazing Act, when an
exchange is based on lands of equal acreage and the selected lands are mineral in
character, the patent shall contain a reservation of minerals to the United States; that
since Husite's application and amended application under the Taylor Grazing Act offered
to exchange lands in which minerals were reserved, and that since the Husite application
excluded valid mining claims, Dredge, "the owner of eight valid placer mining claims,"
was not required to file any objection to such application for exchange; that at the time of
Husite's application Dredge was the owner of said mining claims; and that by reason of
the premises the United States was without authority to grant a fee simple title to Husite,
and that Husite holds all mineral rights in said claims in trust for Dredge.
from the United States government; that said patents were issued in exchange for other lands
which were subject to a reservation of minerals by Southern Pacific Land Company, former
owner, and that Husite's application for an exchange of lands excluded existing gas and oil
leases and other valid mineral rights; that, under the provisions of the Taylor Grazing Act,
when an exchange is based on lands of equal acreage and the selected lands are mineral in
character, the patent shall contain a reservation of minerals to the United States; that since
Husite's application and amended application under the Taylor Grazing Act offered to
exchange lands in which minerals were reserved, and that since the Husite application
excluded valid mining claims, Dredge, the owner of eight valid placer mining claims, was
not required to file any objection to such application for exchange; that at the time of Husite's
application Dredge was the owner of said mining claims; and that by reason of the premises
the United States was without authority to grant a fee simple title to Husite, and that Husite
holds all mineral rights in said claims in trust for Dredge. Dredge accordingly prayed that its
title be quieted to the placer claims and that Husite be enjoined and barred from asserting any
adverse claim therein; also that the court adjudge that Husite holds in trust for Dredge the
said sections 16 and 21.
Husite answered, admitting that it claimed title by reason of the two patents which were
issued by the United States in exchange for lands which were subject to a reservation of
minerals by the Southern Pacific Land Company, a former owner, and admitting that its
application for exchange excluded existing gas and oil leases and other valid mineral rights,
and admitting the provisions of the Taylor Grazing Act, above recited, in connection with
reservation of minerals to the United States. Husite's second defense asserted that the
particular provision of the Taylor Grazing Act, relied upon by Dredge, was only a partial
recital of the provision, was not applicable to the exchange in question, and cited at length
provisions of the Taylor Grazing Act assertedly applicable to the present exchange
whereunder either party to an exchange may make reservations of minerals, easements,
or rights of use.
either party to an exchange may make reservations of minerals, easements, or rights of use.
As a third defense, Husite alleged that the complaint failed to state a claim against Husite
upon which relief could be granted. As a fourth defense, Husite pleaded that Dredge had
waived any right to hold the placer mining claims because it had failed to file a protest to the
exchange application, although with notice and knowledge of the proposed exchange.
Husite's sixth defense was that Dredge was guilty of laches in that it had notice of Husite's
claim to absolute and exclusive ownership and nevertheless refrained from commencing any
action at law or equity to enforce its rights for a period of more than four years after patents
to said property were issued to Husite. As a seventh defense, Husite asserted an
abandonment by Dredge by reason of its failure to protest Husite's application.
Husite's eighth defense alleged that Dredge's claim was invalid in that its locations prior to
patent were void after the issuance of patent. Husite's ninth defense alleged that Dredge does
not hold a legal mining claim on the asserted placers in that (among other things) (c) the
property described in the amended complaint is nonmineral in character and not subject to
location or holding under the laws of the United States or the State of Nevada; and (d) that
plaintiff had not discovered minerals within the limits of said claims or any of them,
sufficient in quantity or quality to constitute a valid discovery.
Other paragraphs and subdivisions of paragraphs contained in the answer have been
omitted as unnecessary to the determination of the appeal.
Husite's counterclaim alleged that it was and had been for many years the owner and in
possession of all said sections 16 and 21 under patents identified by number, issued by the
United States pursuant to an exchange of lands under the provisions of 43 U.S.C.A., Chap.
8A, sec. 315g (Supp. 1961), subsections (b) and (d), Taylor Grazing Act, as amended, and
regulations of the Secretary of the Interior, 43 C.F.R. 146; that Dredge claimed an adverse
interest by reason of certain mining claims, but that Dredge had failed and neglected to
protest or file objection to Husite's application for patent, although with notice and
knowledge thereof and that its claims were without right and prayed that Dredge be
barred from asserting any claim to the land.
but that Dredge had failed and neglected to protest or file objection to Husite's application for
patent, although with notice and knowledge thereof and that its claims were without right and
prayed that Dredge be barred from asserting any claim to the land. Annexed to such answer
and counterclaim as exhibits were photostat copies of the two United States patents referred
to. The first patent reserved to the United States all oil and gas deposits covered by existing
oil and gas leases and all uranium, thorium, or any other material which is or may be
determined to be peculiarly essential to the production of fissionable materials. The second
patent quitclaimed to Husite all rights possessed by the government by reason of the
reservation contained in the first patent.
Dredge replied to the counterclaim, admitted Husite's holding of the patents as alleged by
it, but alleged that the patents were ineffective to convey to Husite the mineral rights, and
alleged that notice to Dredge of the exchange application was ineffective so far as concerns
Dredge's right to the land.
Husite moved for a more definite statement and Dredge now relies upon the information
given in such More Definite Statement in response to such motion as establishing facts
precluding a summary judgment in favor of Husite. To show more definitely the means by
which and the date on which Plaintiff and its predecessors in interest became the owner and
entitled to possession' of said mining claims as alleged in * * * the complaint, as a showing
of such facts, we find Dredge's statement: Plaintiff became the owner and entitled to
possession of the following mining claims by reason of the original location of said claims on
the dates shown on the following schedule. Here each of the eight placers is then listed, with
description of the legal subdivisions covered, each being a quarter section, and each showing
its Document No. (which we may assume for the purpose of this opinion to be that of the
county recorder, although it is not identified as such) and each noting as Dated Recorded,
7/14/52. It is then further recited: The date of discovery of minerals corresponds to the date
of location of said claims as shown by [said] schedule.
Such statement is unverified but is signed by the attorneys for Dredge. Other than such
More Definite Statement and the statement of Dredge's conclusions of law in its amended
complaint that it is the owner of and entitled to the possession of the eight described placers,
and any admissions found in Husite's pleadings, there is nothing further in the record to
support the repeated contentions in appellant's briefs and oral argument that Dredge was and
is the owner of these eight valid placer mining claims. Dredge did not oppose Husite's
motion for summary judgment by submitting the originals or copies of the location notices
referred to in its schedule supporting its More Definite Statement. Perhaps more important,
it did not allege the recording of any location certificates or facts required by statute to be
contained therein. And perhaps more important still, it did not by affidavit or otherwise
submit any proof that it had ever made a discoveryand this, in the face of the admitted
patents issued to Husite, covering the same ground under its original application filed over
two years prior to the date of the purported location notices. We discuss later the entire
absence of statutory or other presumption of discovery or location resulting from the
recording of the location notices.
At this point it would be well to indicate the chronology of the filings involved in this
appeal.
July 19, 1950Husite's original exchange application under section 8 of the Taylor
Grazing Act filed.
July 1, 1952Husite's amended application filed.
July 14, 1952Dredge's location notices recorded, and asserted in Dredge's More
Definite Statement to be likewise the date of discovery of mineral on each claim.
January 27, 1953date of patent to Husite for approximately 12,000 acres of land,
including all of sections 16 and 21, the two sections claimed by Dredge by reason of its
asserted locations.
February 23, 1956date of amended patent to Husite.
January 27, 1959Dredge's complaint to quiet title filed.
Against this record we are confronted with the constant assertions and repetitions in
appellant's briefs and oral argument to the effect that the filing of the location notices
segregated the placer claims from the public domain to the end that the United States
was without authority to patent the land to anyone else until it had determined by proper
objection or contest, hearing, proof, and decision that the claims were not valid.
oral argument to the effect that the filing of the location notices segregated the placer claims
from the public domain to the end that the United States was without authority to patent the
land to anyone else until it had determined by proper objection or contest, hearing, proof, and
decision that the claims were not valid.
Specifically Dredge assigns as error the trial court's refusal to grant its motion for
summary judgment, its order granting Husite's motion for summary judgment, and dismissing
the complaint with prejudice, because [of] undetermined issues of fact tendered by the
defendant's answer, counterclaim and cross-complaint.
In its briefs and oral arguments Dredge amplifies these assignments of error as follows: A.
Dredge's title to its eight asserted placers, so far as Husite was concerned, was equivalent to a
fee title. This, because (1) on the dates of issuance of the patents to Husite the eight placers
were valid, subsisting placer mining claims, because the claims had been located on the
ground, copies of location notices recorded, all in accordance with the requirements of the
mining laws; (2) because neither Husite nor the United States had questioned the validity of
the eight placers prior to the issuance of the patents to Husite; (3) because mining claims are
valid until abandoned or declared invalid after the filing of a proper contest and after notice,
hearing, and determination.
B. Dredge's next contention is that the Department of the Interior had no authority to issue
the patents because Dredge owned eight valid and subsisting placer mining claims, which
withdrew sections 16 and 21 from the public domain.
C. Dredge's next specific assignment of error is that numerous issues [of fact] were
tendered by Husite.
[Headnote 1]
(1) Dredge's assignments of error, as outlined in its assignments A and B, may be grouped
together. All these assignments are premised upon the statement quoted from Wilbur v.
United States, 280 U.S. 306, 50 S.Ct. 103, 74 L.Ed. 445, as follows: The rule is established
by innumerable decisions of this Court, and of State and lower federal courts, that, when the
location of a mining claim is perfected under the law, it has the effect of a grant by the
United States of the right of present and exclusive possession.
of a mining claim is perfected under the law, it has the effect of a grant by the United States
of the right of present and exclusive possession. The claim is property in the fullest sense of
that term; and may be sold, transferred, mortgaged, and inherited without infringing any right
or title of the United States. * * * The owner is not required to purchase the claim or secure
patent from the United States; but, so long as he complies with the provisions of the mining
laws, his possessory right, for all practical purposes of ownership, is as good as though
secured by patent.
We have underscored those parts of the quotation which are conditions entirely absent
from the record in the instant appeal. No quarrel may be had with that statement of the law. It
appears in numerous decisions of the United States Supreme Court and of this court and the
courts of last resort in virtually all the mining states. To bring itself within the rule thus stated
Dredge urges on page after page of its briefs and in continuous repetitions in its oral argument
that it owned the land, that it had valid mining claims on the land, that its valid
mining claims segregated the land from the public domain, that the United States did not own
it and could not sell it or patent it or give it away to any other person without first, by an
appropriate action against Dredge, disposing of its claims. When questioned during the oral
argument, Dredge frankly conceded that its entire appeal was premised upon this contention
that the two sections in question were covered by valid placer mining claims. True, it is said
in its complaint, I am the owner of this ground. True, it stated in its More Definite
Statement, unverified and signed only by its attorneys, who did not purport to have any
actual knowledge in the premises, that it was in possession by reason of the work involved in
staking the original claims and the assessment work performed thereon, and had filed location
notices, and that the date of discovery corresponds to the date of the location, all on July 14,
1952. It is under such showing in the record that Dredge contends that it was entitled to a
summary judgment in its favor and that the showing was sufficient to defeat Husite's motion
for summary judgment based on the patent issued to it.
Husite's motion for summary judgment based on the patent issued to it.
It is, for our purposes, necessary only to refer to the following cases as determinative of
appellant's main contention: Burke v. Southern Pacific R. R. Co., 234 U.S. 669, 34 S.Ct. 907,
58 L.Ed. 1527; Round Mountain Mining Co. v. Round Mountain Sphinx Mining Co., 36 Nev.
543, 138 P. 71; Earl v. Morrison, 39 Nev. 120, 154 P. 75; Gale v. Best, 78 Cal. 235, 20 P.
550, 12 Am.St.Rep. 44; Crofoot v. Hill, 74 Nev. 173, 326 P.2d 417; Wilson Creek Cons. M.
& M. Co. v. Montgomery, 23 L.D. 476; United States v. Iron Silver Mining Co., 128 U.S.
673, 9 S.Ct. 195, 32 L.Ed. 571; Chino Land & Water Co. v. Hamaker, 39 Cal.App. 274, 178
P. 738; Southern Development Co. v. Enderson, 9 Cir., 200 F.2d 272; Western Pacific
Railroad Co. v. United States, 108 U.S. 510, 2 S.Ct. 802, 27 L.Ed. 806; Noble v. Union River
Logging R. R. Co., 147 U.S. 165, 174-175, 13 S.Ct. 271, 274, 37 L.Ed. 123, 127.
These cases firmly establish the following principles of law governing the determination of
the main issues presented.
[Headnote 2]
a. A patent is the act of a legally constituted tribunal, done within its jurisdiction, and
passes the title.
b. Such patent is a final judgment as well as a conveyance. It is conclusive upon a
collateral attack.
[Headnote 3]
c. Such patent issued with a reservation of minerals is a conclusive and official declaration
that the land is nonmineral, and that all the requirements preliminary to the issuance thereof
have been complied with, and that all antecedent steps necessary to its issue have been
properly and legally taken.
[Headnote 4]
d. The basis of a valid mining claim is discovery. Discovery is the most important of all
the acts required in the proceedings culminating in a perfected location. It is the foundation of
the right with which all other acts are idle and superfluous.
e. Without a discovery there is no valid mining claim.
f. The proposition that any recorded notice of a so-called location is conclusively
presumptive of the existence of valuable ore within its limits is without merit.
[Headnote 5]
g. Upon a private exchange application under the Taylor Grazing Act the Department of
the Interior, Bureau of Land Management, is required to investigate the validity of any claim
on file with respect to the property. The rules of the department implement the statute,
including requirements for examination and recommendation by the United States Geological
Survey as to the mineral or nonmineral character of the land.
[Headnote 6]
h. The mere filing of a notice of placer location, without more, does not segregate the
ground from the public domain so as to prevent the United States from issuing a patent under
any of the applicable laws of Congress, nor does it prove the existence of known mineral
ground.
It is unnecessary for us to discuss the authorities cited by appellant to the effect that where
the United States had theretofore parted with its title, a subsequent attempt to pass title to
another by patent is void; or that when a patent is issued in violation of a statute or issued as a
result of fraud it may, under a proper proceeding, be set aside. We may concede that such
holdings are good law. They have, however, no application to the present appeal.
Appellant in support of its contention that a valid mining claim properly located and
maintained in accordance with law segregates the ground legally embraced therein from the
public domain, to the end that the United States may not lawfully convey such ground to a
subsequent applicant, cites, among others, the following cases: Van Ness v. Rooney, 160 Cal.
131, 116 P. 392; Ames v. Empire Star Mines Co., 17 Cal.2d 213, 110 P.2d 13; Montgomery
v. Gerlinger, 146 Cal.App.2d 650, 304 P.2d 93; In re Emblen, 161 U.S. 52, 16 S.Ct. 40 L.Ed.
613; St. Louis Mining & Milling Co. v. Montana Mining Co., 171 U.S. 650, 19 S.Ct. 61, 43
L.Ed. 320; Brown v. Luddy, 121 Cal.App.
Brown v. Luddy, 121 Cal.App. 494, 9 P.2d 326. A careful examination of those cases shows
that in every one the mining claim upon which reliance was placed was a valid mining claim.
While the facts differed in each of such cases, they showed in varying degree, that the mining
claims were known to exist, that they could be identified and defined, that an actual location
had been made, that a valuable mineral deposit on the lands had been discovered, that the
location had been perfected in accordance with law, that the lands had become known
mineral lands, that the claims had been duly located. Proof of such facts is entirely lacking
here.
[Headnote 7]
(2) At this point it is important to consider the following: As under state practice, a
demurrer to the bill in the federal court under the old federal rules, before the adoption of the
new federal rules of civil procedure and before the demurrer was abolished in favor of the
motion to dismiss, admitted the truth of the allegations of the bill. But for the acknowledged
beneficial purposes of the motion for summary judgment, to the end that a long and
protracted trial may be avoided if there be no disputed questions of fact, a motion for
summary judgment now may be supported not only by the pleadings but by discovery
procedures, demand for admissions, affidavits and depositions, etc. NRCP 56, discussed
infra. Assuredly, in support of Dredge's own motion for summary judgment and in opposition
to Husite's motion for summary judgment, Dredge was called upon to submit some factual
proof through some of the methods permitted by NRCP rather than to repeat: We own the
ground. We had valid claims on it. We have heretofore cited in some detail Dredge's more
definite statement filed in response to Husite's demand. Yet it refrained from any allegation or
assertion that it had ever made a discovery of mineral, to any extent whatsoever, or of any
value whatsoever, that it ever erected a monument, drove a stake, or posted a notice,
restricting itself to an unsworn statement signed by its attorneys that it had recorded location
notices, whose dates showed that the asserted locations had been made over two years after
the filing of Husite's exchange application.
the filing of Husite's exchange application. Dredge's only mention of a discovery is the
unsworn statement, signed by its attorneys, in its More Definite Statement, identifying the
date of July 14, 1952 for the recording of its location notices by stating that the date of
discovery of minerals corresponds to the date of location.
[Headnotes 8, 9]
(3) During oral argument counsel for Dredge was asked whether he considered his attack
upon the patent as a direct or collateral attack. He was inclined to think it was a direct attack,
but contended that it made no difference. Burke v. Southern Pacific R. R. Co., supra,
indicates clearly that the Supreme Court of the United States considered the attack to be
collateral. This must indeed be so. A direct attack upon the patent could only be by an appeal
within the proceeding or a suit against the government. The present attack first appears in
Dredge's second cause of action against Husite, asserting that Husite claimed title by reason
of its two patents from the United States and which conveyed no mineral rights to Husite. See
our analysis of the pleadings at the beginning of this opinion. It is quite generally held that
such an attack is collateral and not direct. Burke v. Southern Pacific R. R. Co., supra; 3
Lindley on Mines, Third Edition, 1889, 892, sec. 777; Round Mountain v. Round Mountain
Sphinx Min. Co., 36 Nev. 543, 138 P. 71; Earl v. Morrison, 39 Nev. 120, 154 P. 75;
Burfenning v. Chicago & St. Paul Ry., 163 U.S. 321, 16 S.Ct. 1018, 41 L.Ed. 175; Gale v.
Best, 78 Cal. 235, 20 P. 550, 12 Am.St.Rep. 44.
(4) Dredge contends that under Section 8, Taylor Grazing Act Exchange (43 U.S.C.A.
Chap. 8A, sec. 315g (1961 Supp.)), 48 Stats. 1272, the Bureau of Land Management was
compelled to reserve any minerals from any patent issued. The section relied on reads in part
as follows: When an exchange is based on lands of equal acreage and the selected lands are
mineral in character, the patent thereto shall contain a reservation of all minerals to the
United States. It is clear however that this provision does not apply to the present case, but is
restricted to exchanges between a state and the United States.
States. This is covered by 43 C.F.R. 147.1. The approval of Husite's exchange application
was under 43 U.S.C.A., Chap. 8A, sec. 315g (1961 Supp.), subsections (b) and (d), pursuant
to which the regulations of the Secretary, 43 C.F.R. 146, have to do with exchanges between
individuals and the United States. The regulations provide that under such exchange the
Secretary is authorized when the public interests will be benefited thereby to accept on
behalf of the United States title to any privately owned land within or without the boundaries
of a grazing district and in exchange therefor to issue a patent for not to exceed an equal value
of surveyed grazing district land * * *. Either party to an exchange may make reservations of
minerals, easements, or rights of use. Whether an exchange will benefit the public interest
shall be determined by the officer authorized to act [as provided in paragraph (b) of this
section.]
[Headnote 10]
Under the foregoing provisions this was not an acre for acre exchange, as between a state
and the United States requiring a reservation of minerals, but a value for value exchange
between an individual and the United States, which did not contain such a restriction but
placed it within the discretion and judgment of the land office.
[Headnote 11]
(5) Dredge contends: There was no claim by defendant Husite that there ever was a
hearing or decision concerning the validity of the eight Dredge placer milling claims herein
involved prior to the issuance of its patents, or at any other time. Before there could be any
such decision, a contest must have been filed; a hearing must have been held under the
Administrative Act, a decision rendered, with possible appeals and court action following.
But the only thing before the Bureau of Land Management was the Husite exchange
application. The record does not show just when the Bureau of Land Management made its
examination of the ground to determine its mineral or nonmineral character. It must be
assumed however that at some time during the period of two years before the asserted Dredge
locations were made, such examination and determination had been made, and the
application was in process of going through the usual channels for issuance of patent.
made, such examination and determination had been made, and the application was in process
of going through the usual channels for issuance of patent. During that entire two-year period
there had not been any mineral location on the ground, any evidence of mining operations,
any monument claiming a discovery or a location, any stakes of any kind indicating a mining
claim, any evidence to indicate that it was known mineral ground, any filing in any office
indicating that any part of the ground was claimed as mineral ground. Under these
circumstances (and without considering, for the moment, the fact that no protest or objection
had been made following the publication of the exchange entry) there was nothing before the
Bureau of Land Management to initiate a hearing and determination with reference to the
validity of any mining claim. None such existed. There was nothing to call for any application
of the Administrative Procedure Act.
[Headnote 12]
(6) Dredge contends: The actions and procedures of Husite in connection with the
exchange, and the action of the Department of the Interior in attempting to deprive appellant,
The Dredge Corporation, of its property are, and each is, in violation of The Constitution of
the United States and of The Constitution of the State of Nevada, and therefore void, because
such actions and procedures denied to The Dredge Corporation due process of law. They are
also contrary to the provisions of Federal Mining Laws and the Administrative Procedure
Act.
That this contention is without merit is evident from the undisputed facts. Dredge does not
even assert that it was ever on or ever claimed or ever heard of any part of this land for over
two years after Husite filed its exchange application. Upon the filing of such application the
Bureau of Land Management published notice that any adverse claimants should file their
claims or objections with the Bureau. Dredge had notice and knowledge of the filing of the
exchange application but filed no claims to any part of the land or any objections to the
granting of Husite's application. As the application antedated by over two years any
connection that Dredge may have had with this land or the title thereto, it is
inconceivable that action thereon by the Department of the Interior could have violated
any constitutional rights or any parts of the Administrative Procedure Act with reference
to the nonexistent claims of Dredge.
antedated by over two years any connection that Dredge may have had with this land or the
title thereto, it is inconceivable that action thereon by the Department of the Interior could
have violated any constitutional rights or any parts of the Administrative Procedure Act with
reference to the nonexistent claims of Dredge.
[Headnote 13]
(7) Dredge contends that it was the duty of the Bureau of Land Management, before
proceeding to a patent in favor of Husite, to institute a proceeding to determine the validity or
invalidity of Dredge's placer locations and to make a determination thereof after notice and
hearing. As we have seen, for over two years after Husite's exchange application had been
filed, there was nothing to indicate that Dredge had any interest or that anyone contended that
the ground was mineral in character. As we have seen, the issuance of patent was a final
judgment of the nonmineral character of the land, and the jurisdiction of the land department
ended. This would appear to dispose of Dredge's contention that the land department was
without jurisdiction to patent the land to Husite without having first, after notice and hearing,
declared Dredge's mineral claims invalid.
(8) In support of its contention that Husite should be adjudged to be a trustee holding the
land in trust for Dredge, it relies upon one sentence appearing in In re Emblen, 161 U.S. 52,
16 S.Ct. 487, 40 L.Ed. 613. In that case a subsequent mineral claimant sought mandamus to
compel the Secretary of the Interior to hold a hearing to determine the mineral or nonmineral
character of the land. The United States Supreme Court, after holding that the land
department had lost jurisdiction with the issuance of the patent and that the same could not be
revoked or set aside except upon judicial proceedings instituted in behalf of the United States,
said: The only remedy of Emblen is by bill in equity to charge Weed [the patentee] with a
trust in his favor. Dredge says: This is precisely what we have done. The court's statement
does not, of course, mean that every subsequent mineral claimant against a nonmineral
patentee has such a claim or cause of action in equity. If the court could properly conclude,
on the respective motions for summary judgment, that Dredge had no valid mining
claims, then the imposition of a trust upon Husite's patent title for the benefit of Dredge's
nonexisting equitable title would be an empty gesture.
the court could properly conclude, on the respective motions for summary judgment, that
Dredge had no valid mining claims, then the imposition of a trust upon Husite's patent title
for the benefit of Dredge's nonexisting equitable title would be an empty gesture.
The conflicting affidavits referred to by appellant as presenting issues of fact requiring a
trial had to do in the main with the legal effect of Dredge's failure to protest Husite's
application; but, by reason of the conclusions reached by us, the only determinations required
were determinations on questions of law.
[Headnote 14]
(9) In view of our conclusion that the summary judgment in favor of Husite must be
affirmed by reason of the entire absence in the record of any showing that the Dredge
Corporation was the owner of valid mining claims on the property, we have not found it
necessary to determine on this appeal whether or not Dredge was estopped from asserting the
claims by reason of its failure to object to the granting of Husite's exchange application after
notice and knowledge of Husite's application.
1

[Headnote 15]
(10) Dredge contends, citing numerous authorities, with which we are in entire agreement
(see Parman v. Petricciani, 70 Nev. 427, 436
____________________

1
In mining patent conflicts such failure to protest or object estops the claimant from later asserting his claims.
30 U.S.C.A., secs. 23, 30.
No case has been cited from any court holding that a mining claimant is likewise estopped by failure to
object to an exchange application. The commissioner of the General Land Office in James R. Crawford, 53
I.D.435, 438, had held in the case of a conflict of mining claimants with a school land indemnity list:
Moreover, it is as incumbent upon mineral claimants to keep advised of nonmineral applications pending in the
General Land Office as it is to keep advised of mineral applications against which it would be necessary to file
an adverse claim.' The Secretary affirmed on the ground of the conclusiveness of the approval of the school
land indemnity list and on the ground that there was not clear, unequivocal, and convincing evidence of fraud,
nor that the approval of the list was the result of any error, mistake, or inadvertence in the Land Department. The
Secretary stated however that the department was not in agreement with the commissioner's holding that the
failure to protest was attended with the same fatality to his possessory right as would follow from his failure to
adverse a hostile mineral application. * * * Crawford's motion for rehearing before the Secretary was denied. 53
I.D. 435, 439.
Petricciani, 70 Nev. 427, 436, 272 P.2d 492), that summary judgment is improper where any
issues of fact remain for determination. It asserts that the conflicts raised in the supporting
affidavit of Husite's motion for summary judgment and Dredge's affidavit in support of its
opposition thereto present conflicting questions of fact which can be determined only by trial.
As we have seen, the conflict in reality presented an issue of law and it was the province of
the court to determine the same.
[Headnote 16]
But Dredge contends that in any event questions of fact for determination resulted from the
pleadings. Its argument is: Dredge asserts that it is the owner of valid mining claims. Husite
denies this. Cases interpreting the federal rules encourage the pleading of conclusions. The
facts that will determine these conclusions were thus triable by the court. We must reject this
contention.
NRCP 56, concerning summary judgment, is identical with the federal rule. Subdivision
(e) reads in part: Supporting and opposing affidavits 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. * * * In Lockhart v.
Maclean, 77 Nev. 210, 361 P.2d 670, we affirmed a summary judgment in favor of the
defendant. The plaintiff there contended on appeal that facts recited in an affidavit used in
opposition to the motion for summary judgment required that the matter be tried. However,
we approved the district court's ruling that the plaintiff had not shown that the affiant was a
competent witness. Franktown Creek Irrigation Co. v. Marlette Lake, 77 Nev. 348, 364 P.2d
1069, involved an appeal from the district court's judgment affirming the final adjudication of
the state engineer in a general adjudication proceeding to determine the relative water rights
of the users of Franktown Creek. In such cases exceptions to the state engineer's final order of
determination constitute pleadings. The exceptions of the appellant had been verified by
appellant's secretary and contained the statement that appellant's use of the waters during
the required statutory period was "open, notorious, hostile, and adverse."
and contained the statement that appellant's use of the waters during the required statutory
period was open, notorious, hostile, and adverse. Appellant insisted that such averment in
its pleading, verified by an officer of the company, created an issue of material fact and thus
precluded a summary judgment. However the affiant subsequently gave a fact deposition
covering the same subject matter which did not support the averment mentioned. We said:
Under such circumstances, we hold that, in deciding whether an issue of fact is raised, the
lower court must rely upon the fact deposition of such person and disregard the conclusions
of his verified pleading. Bennett v. Flanigon, 7 Cir., 220 F.2d 799, 803. Franktown Creek
Irrigation Co. v. Marlette, supra, at 352. The amended complaint, upon which Dredge relies
in support of its contention that such amended complaint presented a factual issue, was
verified by plaintiff's attorney as true to the best of his knowledge, and has been related to
your affiant by the plaintiff [corporation] herein. The More Definite Statement, furnished
by Dredge in response to Husite's demand and on which Dredge relies for its recital of facts
requiring a trial, is signed by Dredge's attorneys but contains no verification of any kind.
Dredge's proposed amended complaint adding two additional causes of action is likewise
signed by Dredge's attorneys without any verification. In United States v. Halpern, 3 Cir., 260
F.2d 590, the court, citing numerous authorities, said: Rule 56(e) of the Federal Rules of
Civil Procedure, 28 U.S.C.A., requires that affidavits opposing, as well as supporting,
summary judgment shall be made on personal knowledge of facts which would be admissible
in evidence. The opposing affidavit of the defendants' counsel was accordingly clearly
incompetent to raise an issue of fact which would bar summary judgment. * * * Since the
answer did not controvert the allegations of the complaint by denying them or by setting up
countervailing facts and since the allegations of the complaint were categorically supported
by facts stated specifically on personal knowledge in the plaintiffs' supporting affidavit and
not rebutted, the record did not disclose a genuine issue as to any material fact.
material fact.
2
The portions of the record and pleading relied upon by Dredge did not
present factual issues which would preclude a summary judgment.
[Headnote 17]
(11) Dredge assigns error in the trial court's denial of its motion for leave to file a further
amended complaint adding a third and fourth cause of action. The proposed third cause of
action again discusses the opposing affidavits to the asserted effect that the same estopped
Husite from asserting Dredge's failure to protest Husite's exchange application. This adds
nothing new. The third proposed cause of action further asserts that Husite for the purpose of
defrauding the plaintiff of its title thereto falsely represented to the land department that the
selected lands were unappropriated and not occupied, claimed, improved, or cultivated
adversely to the applicant; that such false statement was made to deceive the department and
defraud Dredge, and as a true statement had been made that location notices of the eight
placer mining claims owned by the Dredge Corporation were of record and * * * in conflict
with Husite's application, the department should have set up a hearing to determine the
mineral character of the eight placers and their validity; that the department made no
investigation or determination; and that the land is in fact mineral. Most of these matters have
heretofore been discussed. Husite's affidavit that the land was unoccupied and unclaimed, as
against Dredge's placers, we have seen to be true. The placers were not attempted to be
located or notices recorded until two years after the exchange application. The third cause of
action thus added nothing.
____________________

2
In a preliminary draft of proposed amendments to Rules of Civil Procedure for the United States district
courts (Committee on Rules of Practice and Procedure of the Judicial Conference of the U.S., October 1961) the
Committee, in recommending an amendment not pertinent here, said: The very mission of the summary
judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine
need for trial. * * * It is hoped that the amendment will contribute to the more effective utilization of the salutary
device of summary judgment.
[Headnote 18]
The proposed fourth cause of action was based on appellant's affidavit as supporting the
[oral] contract of Husite to convey to The Dredge Corporation complete title to sections 16
and 21, and the prayer is that Husite be ordered to convey to Dredge all the mineral rights in
the property. To have permitted this amendment would simply have permitted the assertion of
a claim which was on its face barred by the statute of frauds. NRS 111.205(1). There was
neither error nor abuse of discretion in denying the motion to amend by adding these two
causes of action.
[Headnote 19]
(12) Dredge's brief in support of its motion for summary judgment and in opposition to
defendant's motion for summary judgment was filed May 31, 1960, and its closing brief on
these motions was filed December 5, 1960. Both briefs are voluminous and in effect argue the
same points and cite the same authorities which it has presented to this court on its appeal. On
January 5, 1961, the court advised counsel that upon the review of the record it did not feel
that further oral argument would be appropriate and that a decision would be rendered as the
matter then stood submitted. Dredge assigns this action as error. The assignment has no merit.
The order and judgment denying appellant's motion for summary judgment and granting
respondent's motion for summary judgment and dismissing plaintiff's complaint with
prejudice are hereby affirmed with costs.
McNamee and Thompson, JJ., concur.
____________
78 Nev. 91, 91 (1962) Stardust, Inc. v. Desert York
STARDUST, INC., Appellant, v. DESERT YORK COMPANY,
a Corporation, Respondent.
No. 4429
February 28, 1962 369 P.2d 444
Judge.
Action by owner for judicial declaration of amount due mechanic's lien claimant for
supervision of air conditioning installation. The lower court rendered a judgment from which
owner appealed. The Supreme Court, Thompson, J., held that evidence supported finding that
the claim represented reasonable value of services.
Judgment affirmed.
Goldwater and Singleton, and Samuel S. Lionel, of Las Vegas, for Appellant.
Gregory & Gregory, of Las Vegas, for Respondent.
1. Mechanics' Liens.
Evidence in owner's suit for declaration as to amount due mechanic's lien claimant for engineering
supervision of air conditioning system in hotel sustained finding that claim represented reasonable value of
services.
2. Mechanics Liens.
General contractor's approval of claimant's charge for supervision of air conditioning installation did not
bind owner on question whether charge was reasonable. NRS 108.020(3).
Award of attorney's fees to party who prevailed in trial court in proceeding under agreement which
provided that prevailing party should recover such fees, was left standing where judgment was affirmed.
OPINION
Stardust, Inc. will be referred to as Stardust, and Desert York Company as York. In
accordance with a written agreement between them, reserving to Stardust the right to do so,
Stardust sought a judicial declaration in the district court as to the proper amount due York, a
mechanic's lien claimant, for its engineering supervision of the air conditioning system
installed in the Stardust Hotel.
a mechanic's lien claimant, for its engineering supervision of the air conditioning system
installed in the Stardust Hotel. York's claim of lien included the sum of $17,654 for such
supervision.
1
Stardust alleged such amount to be exorbitant and excessive; York denied such
allegation. After trial, the lower court found that amount to be reasonable under the
circumstances before it. On this appeal Stardust assigns such finding as error.
2

[Headnotes 1-3]
Though much evidence was received tending to show the charge for supervision to be
excessive, there was substantial evidence introduced to support the court's finding that it
represented the reasonable value thereof. A qualified engineer gave his opinion that the
charge for supervision was exceedingly reasonable. The general contractor for the Stardust
job approved York's charge for supervision. Though his approval does not bind the owner,
3
nonetheless it is some evidence tending to prove the reasonableness of the charge submitted.
In addition, the evidence reveals that completion of the Stardust project was accelerated into a
round-the-clock, fast, crash program to expedite opening, thus placing additional burdens
upon those furnishing materials and services. In view of such evidence, we will not disturb
the lower court's finding. Holland v. Crummer Corp., 78 Nev. 1, 368 P.2d 63; Stix v. La Rue,
78 Nev. 9, 368 P.2d 167; Friendly v. Larsen, 62 Nev. 135, 144 P.2d 747.
The court below, after a separate hearing, awarded a $3,000 fee to counsel for York.
Though the award is assigned as error, neither appellant's brief nor oral argument pretends to
assert why error is claimed in this regard. The agreement between the parties provided that, in
the event of litigation, the prevailing party could recover a reasonable attorney's fee. We
assume that appellant's claim of error is premised upon a reversal of the judgment below,
thus automatically nullifying the award, for in that event York would not be the prevailing
party.
____________________

1
Other items making up the total lien claim are not disputed.

2
Ten errors are assigned. Nine of them concern this basic claim of error.

3
See NRS 108.020(3), formerly NCL 3735; Milner v. Shuey, 57 Nev. 159, 174, 180, 60 P.2d 604, 69 P.2d
771, 773, where this court said: The statutory agency thus created is for the purpose of securing liens and not
personal liabilities.
reversal of the judgment below, thus automatically nullifying the award, for in that event
York would not be the prevailing party. As the judgment below must be affirmed, the award
of counsel fees will stand.
Affirmed.
____________
78 Nev. 93, 93 (1962) Kernan v. Kernan
FLORENCE E. KERNAN, Now FLORENCE E. WACKER,
Appellant, v. FRANCIS M. KERNAN, Respondent.
No. 4430
March 1, 1962 369 P.2d 451
Appeal from judgment of the Second Judicial District Court, Washoe County; Clel
Georgetta, Judge.
Action by divorced wife against husband to enforce New York judgment for accrued
alimony. The trial court rendered a judgment from which the wife appealed. The Supreme
Court, Badt, C. J., held that under full faith and credit doctrine, amounts which divorced
husband allegedly voluntarily paid wife, after institution of her New York suit for accrued
alimony but before judgment, could not be set off against liability under New York judgment.
Reversed.
Emerson J. Wilson, Robert H. Moore, and William E. Freedman, all of Reno, for
Appellant.
Ernest S. Brown, of Reno, for Respondent.
1. Judgment.
Under full faith and credit doctrine, amounts which divorced husband allegedly voluntarily paid wife,
after institution of her New York suit for accrued alimony but before judgment, could not be set off against
liability under New York judgment.
2. Judgment.
When issues between parties have once been tried and finally determined, they cannot be litigated by
parties or their privies, even though judgment was entered by default.
3. Judgment.
Judgment is conclusive not only as to every matter that was offered in action to sustain or defeat demand,
but as to every other matter that might have been offered for that purpose.
4. Judgment.
Judgment for defendant on finding that he could set off amount against liability under foreign judgment
sued on did not imply finding for defendant on his claim that foreign judgment had been obtained by
extrinsic fraud.
5. Judgment.
Evidence in wife's action against husband on New York judgment did not establish that New York default
judgment for accrued alimony, which was obtained nearly nine years after action was commenced, had
been procured by fraud.
OPINION
Florence E. Kernan, now Florence E. Wacker, appeals from a judgment in which Francis
M. Kernan, her former husband, was permitted to set off against Mrs. Kernan's suit for
accrued alimony under a New York decree sundry amounts paid to her by Dr. Kernan in
various years preceding the entry of the New York judgment. Appellant contends that such
action on the part of the trial court was error in not giving full faith and credit to the New
York judgment; that it was also error because such present defense was available to him in
the New York action referred to and also in prior actions between the same parties; that it was
error to hold that payments made by her husband to her were payments that he was not
obligated to make, by reason of her default in violating a provision permitting him to visit the
minor children of the parties; that it was error for the court to allow a further setoff of $150
growing out of a long-standing note in such sum payable by the wife to the husband.
As we have concluded that a reversal must be had by reason of the court's failure to give
full faith and credit to the New York decree, and because of the application of the rule of res
judicata, the other assignments of error will require little more than casual mention.
The prior litigation between the parties was extensive and a chronology thereof will be of
assistance in understanding the facts.
and a chronology thereof will be of assistance in understanding the facts.
Suit No. 1. Action by husband in New York for specific performance of a separation
agreement of August 17, 1938. This eventuated in a new agreement February 9, 1940
governing property rights and custody and interest of the three minor children of the parties.
Suit No. 2. Divorce action by husband in Florida wherein the wife obtained a divorce and
a decree providing for approval of the February 9, 1940 agreement.
Suit No. 3. Wife's action in New York for defaulted payments under the agreement of
February 9, 1940 up to December 15, 1940. The husband appeared and interposed several
defenses. These were rejected and judgment entered March 14, 1941 in wife's favor for
$877.25.
Suit No. 4. Wife's New York action to recover defaulted payments from December 15,
1940 to October 1, 1941. The husband appeared and defended. Judgment was entered in the
wife's favor for $1,887.50.
Suit No. 5. Wife's New York action to recover defaulted payments from October 15, 1941
to November 15, 1942 in the sum of $2,700. Although the husband was personally served in
New York City November 19, 1942, he failed to appear. On July 20, 1951 his default was
entered and judgment taken against him in the sum of $4,123.24, being the total amount of
payments in default as prayed for in the complaint, plus interest and costs.
Suit No. 6. This is the present action to enforce the judgment in suit No. 5. The present
appeal is from the judgment in suit No. 6.
The court below filed a written opinion (followed by formal findings of fact in the precise
words of the opinion), which we may condense as follows:
The City Court of New York, which rendered the judgment in suit No. 6, had full
jurisdiction. Such judgment entered July 20, 1951 was for $2,700, plus interest and costs
aggregating $4,123.24. The defendant defaulted in that action and presented no defense either
as to the amount due or sums to be set off, nor did he attempt to interpose any equitable
defenses; after the New York court judgment was entered, the defendant cannot go behind
it to interpose any defenses he may have had in that action up to the time the judgment
was entered," that time being July 20, 1951; "the New York judgment for $4,123.24 upon
which this action was brought must be given full faith and credit by this court." "In this
action, however, before the court, the defendant is free to interpose any defenses he may
have against the collection of the judgment, such as payment or setoff."
cannot go behind it to interpose any defenses he may have had in that action up to the time
the judgment was entered, that time being July 20, 1951; the New York judgment for
$4,123.24 upon which this action was brought must be given full faith and credit by this
court. In this action, however, before the court, the defendant is free to interpose any
defenses he may have against the collection of the judgment, such as payment or setoff.
Having thus accorded full faith and credit to the New York judgment, the trial court then
proceeded to consider sundry payments made by Dr. Kernan to his wife under the stipulation
of February 9, 1940, referred to under suit No. 2. The court held that she had violated that
stipulation by failing to pay certain insurance payments and by denying her husband rights of
visitation, both of which items were provided for in the stipulation, with the further provision
that in the event of her failure so to perform, he could suspend payment 15 days after his
notice to her of her default and until such default had been cured, and that by reason of such
circumstances no further sums were due from the husband to the wife after March 12, 1940.
The court then found that although the validity of any such payments otherwise due up to
November 17, 1942 (suit No. 5), and included in the New York judgment, could not be
questioned because this was a defense Francis M. Kernan failed to present in that action,
[a]ny such payment not legally due after 17 November 1942 but which Francis M. Kernan
nevertheless made, may be credited as a setoff against the judgment. The court then found
that Kernan had paid his wife $4,223.67 after November 17, 1942 and was entitled to set this
off against the New York judgment because of his making the above mentioned payments
after his legal obligation to do so had ceased. * * * Therefore, the Court determines that the
Judgment has been paid.
[Headnotes 1-3]
The particular significance of the payments made to his wife and of other credits, to which
the court found he was entitled, is that they were all made during the time of his military
service and the years immediately following his establishment of residence in Reno in the
beginning of 1946.
time of his military service and the years immediately following his establishment of
residence in Reno in the beginning of 1946. They were all prior to the 1951 judgment. They
were payments that were required to be made under the 1940 agreement. If there was a period
of time during which such payments were excused because of his wife's failure to pay life
insurance premiums or because of her refusal to permit him to visit the children, these were
matters to have been presented in defense of the action in which the New York judgment was
entered. They were susceptible of pleading and proof in that action. They did not constitute
setoffs against the 1951 judgment itself. To permit them to be considered in the present action
as matters in setoff against the defaulted payments that were involved in that action under the
guise of setoff against the judgment itself is simply to permit the former action to be tried
over again. In other words, it violates the requirement that the judgment in the New York
action be accredited full faith and credit. Biel v. Godwin, 69 Nev. 189, 245 P.2d 997. It also
violates the rule of res judicata. In Gulling v. Washoe County Bank, 29 Nev. 257, 266, 89 P.
25, 28, this court said: No proposition of law is more thoroughly settled than that, when
issues between parties to an action have once been tried and finally determined, whether such
determination is erroneous or not, the same questions cannot again be litigated by such parties
or their privies. Nor is the result different where the first judgment was entered by default.
English v. English, 9 Cal.2d 358, 70 P.2d 625, 128 A.L.R. 467, 30A Am.Jur. 297. And the
first judgment is conclusive not only as to every matter that was offered in that action to
sustain or defeat the demand, but as to every other matter that might have been offered for
that purpose. Wolford v. Wolford, 65 Nev. 710, 200 P.2d 988. It was error to permit such
setoff.
[Headnote 4]
Respondent contends that in any event the 1951 judgment may be attacked on the grounds
of extrinsic fraud; that the evidence supports such claim of extrinsic fraud and that although
the lower court did not find extrinsic fraud and did not base its judgment in favor of
respondent on extrinsic fraud, nevertheless the judgment denying relief to appellant may
be supported on such ground, as implying a finding in support thereof.
fraud and did not base its judgment in favor of respondent on extrinsic fraud, nevertheless the
judgment denying relief to appellant may be supported on such ground, as implying a finding
in support thereof. We do not think that this is a logical contention. Neither in its written
opinion nor in its findings did the trial court so much as mention fraud. The absence of such a
finding rather implies a finding that there was no extrinsic fraud.
[Headnote 5]
Without discussing the question whether the judgment may be thus collaterally attacked,
we may say simply that no extrinsic fraud appears in the record. Respondent contends that the
lapse of nine years between the filing of the complaint in the New York action in 1942 and
the entry of the default judgment in that action in 1951, and appellant's failure to give
respondent any notice that she intended to cause such judgment to be entered, and the fact
that the parties lived separate and apart under different financial arrangements for a number
of years, lulled respondent into a feeling of security whereunder he felt it was unnecessary to
take any steps to protect his legal rights. He does not testify to a single representation to him
by his wife upon which he placed reliance. As a matter of fact, during this entire period he
had no conversations with his wife. Respondent refers to other matters in the record in
support of his theory of extrinsic fraud, but they do not carry any convincing weight.
It must be remembered that we are not here reviewing the sufficiency of facts to support a
finding by the trial court of extrinsic fraud. There was no such finding. We simply reject the
contention that there is a showing of extrinsic fraud in the record which would compel a
conclusion that the judgment in favor of respondent necessarily implies a finding of extrinsic
fraud.
Our holding that both the full faith and credit requirement and the rule of res judicata
require reversal applies with like effect to the judgment in favor of the respondent on the
$150 promissory note.
The judgment is reversed and remanded with direction to enter judgment in favor of
appellant for the full amount of the foreign judgment, together with interest thereon.
The record on appeal contains a great many pages of the briefs submitted to the trial court.
Appellant's costs in this court may not include the typewriting of such briefs.
____________
78 Nev. 99, 99 (1962) Kelso v. Kelso
WALTER A. KELSO, Appellant, v.
MAUDE KELSO, Respondent.
No. 4431
March 2, 1962 369 P.2d 668
Appeal from the Second Judicial District Court, Washoe County; Clel Georgetta, Judge.
Action by husband for divorce. From an order of the lower court setting aside wife's
default the husband appealed. The Supreme Court held that wife's default in divorce action
was improperly set aside when wife's motion to set aside default contained no allegation as to
what her defense would be or whether she had any kind of defense.
Reversed.
Loyal Robert Hibbs, of Reno, for Appellant.
Peter Echeverria and J. Rayner Kjeldsen, of Reno, for Respondent.
1. Divorce.
Wife's default in divorce action was improperly set aside when wife's motion to set aside default
contained no allegation as to what her defense would be or whether she had any kind of defense. NRCP
55(c).
78 Nev. 99, 100 (1962) Kelso v. Kelso
2. Judgment.
A defendant's motion to be relieved of his default is fatally defective unless accompanied by a showing of
nature of defense he expects to interpose to plaintiff's claim. NRCP 55(c).
OPINION
Per Curiam:
This is an appeal from an order setting aside a default in a divorce action.
[Headnote 1]
It appears from the record on appeal which includes an agreed statement that on October 4,
1960 the respondent wife was served with summons personally in San Francisco, California,
after an order for publication of summons had been entered. She not having appeared in the
action within 20 days after service of the process therein, the time required by law, on
application of the appellant her default was entered October 25, 1960 and a decree of divorce
granted the same day. Notice of entry of judgment was immediately mailed to respondent.
On November 2, 1960 respondent, through her attorney, filed a notice of motion and
motion to set aside the default. Said motion was heard and supported by the affidavit of one
Paul G. Dobbins. On March 31, 1961 the motion was granted setting aside the default and
judgment of divorce and the respondent given 10 days within which to answer.
The motion was made upon the ground of mistake, inadvertence, surprise, and excusable
neglect, and the further ground that there was an air of misrepresentation or misconduct of
plaintiff, the adverse party, through his counsel, in not definitely placing the said Paul G.
Dobbins [the wife's California counsel] on notice as to counsel's intention to take a default.
1

The points relied upon as constituting error are:
1. Respondent nowhere in her motion to set aside the default alleged what her defense
would be or would have been or whether she had any kind of defense at all.
____________________

1
It is not contended that the conduct of plaintiff's counsel (an attorney not of record on this appeal)
constituted extrinsic fraud.
78 Nev. 99, 101 (1962) Kelso v. Kelso
2. That there was no mistake, inadvertence, surprise, or excusable neglect justifying a
delay on the part of respondent in filing a responsive pleading.
In support of her motion respondent relied upon the papers on file in said action and the
affidavit of Paul G. Dobbins. This affidavit concerns only matters supporting her contention
that the default was entered as a result of mistake, inadvertence, surprise, or excusable
neglect. Nowhere does it appear in said affidavit or elsewhere in the record that the wife has
any defense to the action.
[Headnote 2]
For many years Nevada has adhered to the rule that when a defendant seeks to be relieved
of his default,
2
his motion for such relief is fatally defective unless accompanied by a
showing of the nature of the defense he expects to interpose to the plaintiff's claim. Blakeney
v. Fremont Hotel, Inc., 77 Nev. 191, 360 P.2d 1039; Cicerchia v. Cicerchia, 77 Nev. 158, 360
P.2d 839; Lukey v. Thomas, 75 Nev. 20, 333 P.2d 979; Esden v. May, 36 Nev. 611, 135 P.
1185; Howe v. Coldren, 4 Nev. 171.
In Lukey v. Thomas we said that in the absence of and showing by competent evidence
of what the defense would be in the event defendants were permitted to answer, the court
was not justified in assuming merely from the arguments of counsel that any defense in fact
existed * * *.
It may be conceded that so far as excusable neglect is concerned the showing was
sufficient. But this showing is not enough to permit the lower court to set aside a default.
Without any showing of a defense or the nature thereof so that the lower court could
determine whether it was meritorious, the setting aside of the default and judgment on the
ground of excusable neglect was error. Lukey v. Thomas, supra; Esden v. May, supra.
As aforesaid, the record is silent with respect to any defense. Respondent did during oral
argument refer us to NRCP 11, which states in part: The signature of an attorney constitutes
a certificate by him that he has read the pleading; that to the best of his knowledge,
information, and belief there is good ground to support it; and that it is not interposed for
delay."
____________________

2
NRCP 55(c) provides: For good cause shown the court may set aside an entry of default, and if a judgment
for default has been entered, may likewise set it aside * * *.
78 Nev. 99, 102 (1962) Kelso v. Kelso
the pleading; that to the best of his knowledge, information, and belief there is good ground
to support it; and that it is not interposed for delay. In referring to this rule respondent argues
that her attorney's signature to the motion is a certification that respondent has a good
defense, and that respondent through such signature alone has made a showing of a
meritorious defense. This assertion is without merit.
Even with the application of the provisions of NRCP 11 to motions, there would still be no
showing of the nature of the defense as required by Lukey v. Thomas, supra, which would
enable the court to determine its merits. Guardia v. Guardia, 48 Nev. 230, 229 P. 386.
We see no reason for overruling the cases which require a showing of a meritorious
defense on motions to set aside a default and which have consistently governed the actions of
district courts and attorneys for many years. The order of the court below granting
respondent's motion to be relieved of her default without any showing or even a mention of
the nature of her defense was erroneous.
The order appealed from is reversed.
____________
78 Nev. 102, 102 (1962) Ex Parte Chachas
In the Matter of the Petition of GREGORY JOHN
CHACHAS, for Review of Bar Examination.
No. 4501
March 5, 1962 369 P.2d 455
Proceeding in the matter of the application of Gregory John Chachas for a license to
practice law.
Proceeding on petition to set aside and nullify recommendation of Board of Bar Examiners
that petitioner be denied admission to Bar. The Supreme Court held that applicant's claim that
his examination had been graded improperly in part was insufficient to require Supreme
Court to study all answers of applicant and of other applicants to ascertain whether Board had
abused discretion.
Petition denied.
Petitioner in Pro. Per.
Howard L. Cunningham, Chairman, Board of Bar Examiners, of Reno, for State Bar of
Nevada.
1. Attorney and Client.
Applicant's failure to pass by examination was proper basis for adverse determination of his academic
qualifications.
Applicant's claim that his bar examination had been graded improperly in part was insufficient to require
Supreme Court to study all answers of applicant and of other applicants to ascertain whether Board of
Examiners had abused discretion.
Board of Bar Examiners has large discretion in matter of recommending that applicants be admitted or
denied admission, and exercise of this discretion will not be reviewed unless it clearly appears that abuse
has occurred.
Supreme Court Rule limiting grounds of petition for review of denial of recommendation for admission to
Bar was not unconstitutional. SCR 55.
Applicant had no constitutional right to practice law in Nevada, but only right to practice upon
demonstration of fitness.
OPINION
Per Curiam:
Petitioner took the Nevada State Bar examination in September 1961 and was thereafter
notified that he had failed to pass. He now petitions this court to set aside and nullify the
recommendation of the Board of Bar Examiners that he be denied admission to the State Bar
of Nevada.
In such petition he alleged that he was prevented from passing the examination through
fraud, imposition, coercion, abuse of discretion, and patent error in judgment and
interpretation of law by the Board of Bar Examiners in that his answers to certain specified
questions were improperly graded thereby precluding him from obtaining a passing grade.
Petitioner alleges further that the chairman of the Board of Bar Examiners agreed to
regrade and reconsider petitioner's examination in the light of what was agreed was
erroneous grading in examination 4, but that this has not been undertaken; that Rule 55,
Supreme Court Rules, limiting the grounds of a petition for review to a showing {a) that
the applicant was prevented from passing through fraud, imposition, or coercion by the
Board of Bar Examiners, or {b) that he was prevented from a fair opportunity to take the
examination by the Board of Bar Examiners, denies to petitioner his constitutional right to
be afforded a fair and impartial opportunity to practice law in the State of Nevada; that
such limitation "denies him the right to have an impartial and objective review of the
decision of the bar examiners."
that this has not been undertaken; that Rule 55, Supreme Court Rules, limiting the grounds of
a petition for review to a showing (a) that the applicant was prevented from passing through
fraud, imposition, or coercion by the Board of Bar Examiners, or (b) that he was prevented
from a fair opportunity to take the examination by the Board of Bar Examiners, denies to
petitioner his constitutional right to be afforded a fair and impartial opportunity to practice
law in the State of Nevada; that such limitation denies him the right to have an impartial and
objective review of the decision of the bar examiners.
The Board of Bar Examiners answered the petition, denying the material allegations above
recited. Petitioner filed a reply, alleging a conference between the chairman and the former
chairman of the board, in which the latter expressed the opinion that there was an
undergrading of at least 42 points on questions 2 and 4 of examination 4, and that the
petitioner had answered right on the head, and that the chairman suggested to petitioner that
the latter send him six copies of the erroneously graded answers to be distributed to the bar
examiners for regrading. Such reply again attacked Rule 55 as unreasonable and arbitrary. In
view of the new matters pleaded in the reply, we permitted respondent to file a replication
thereto. Such replication admitted that the chairman, after conferring with the ex-chairman,
did check the answers to the said questions and later suggested that the petitioner send him
six copies of the erroneously graded answers, and denied all other allegations contained in
the reply.
In essence, the complaint of petitioner is that his examination in part was graded
improperly, and he seeks a regrading by this court. The embellishment of the charge of
improper grading by denominating it fraud adds nothing to the nature of the relief sought.
[Headnote 1]
The recommendation of the board that petitioner be denied a license was based entirely
upon his failure to pass the examination. This is a proper basis for the board's determination
of the academic qualifications of an applicant.
board's determination of the academic qualifications of an applicant. Ex parte Reid, 76 Nev.
76, 349 P.2d 446.
[Headnote 2]
The showing made is insufficient to require us to study all the answers of petitioner and of
the other applicants for the purpose of ascertaining whether the board abused its discretion in
its failure to recommend petitioner for admission. In re Myles, 64 Nev. 217, 180 P.2d 99.
[Headnote 3]
The board has a large discretion in the matter of recommending that applicants be
admitted or denied admission to the bar, and the exercise of this discretion will not be
reviewed by this court unless it clearly appear that an abuse has occurred. In re Hughey, 62
Nev. 498, 156 P.2d 733. Where any dissatisfied applicant can show that he was denied
passage of state bar examinations through fraud, imposition, or coercion, or that he was
prevented from fair opportunity to take examinations, this court will listen to his complaints,
but inability to pass examinations, which are successfully passed by other applicants, of
course, will not be inquired into. Staley v. State Bar of California, 17 Cal.2d 119, 109 P.2d
667.
Under Rule 55, Supreme Court Rules, the burden is upon an applicant to show wherein the
board acted improperly.
The petitioner has failed to meet the burden of proof required by the rule.
[Headnotes 4, 5]
The constitutional question raised by petitioner is without merit. He has no constitutional
right to practice law in Nevada. He has a right to practice law only upon a demonstration of
fitness which so far he has been unable to present.
The petition for review is denied.
____________
78 Nev. 106, 106 (1962) Douglas County Board of County Comm'rs v. Pederson
THE DOUGLAS COUNTY BOARD OF COUNTY COMMISSIONERS, MARVIN
SETTELMEYER, HERBERT DRESSLER, and CLYDE A. PLIMPTON, Constituting the
Members of Said Board, Appellants, v. BJARNE PEDERSON, Respondent.
No. 4465
March 7, 1962 369 P.2d 669
Appeal from judgment of the First Judicial District Court, Douglas County; Frank B.
Gregory, Judge.
Mandamus proceeding to compel county board to accept contractor's bid and award him a
contract for construction and paving of a county road. The trial court entered judgment for the
contractor and the board appealed. The Supreme Court, Thompson, J., held that mandamus
was not available to contractor even though he was the lowest bidder, where the board, which
was required by statute to award contract to lowest responsible bidder, had determined, after
inquiry and investigation, that contractor was not responsible, and there was some legal
evidence before the board to support such determination.
Judgment reversed.
Carl F. Martillaro, District Attorney, Douglas County, for Appellants.
Laxalt and Laxalt, of Carson City, for Respondent.
1. Mandamus.
Mandamus was not available to lowest bidder who was not awarded contract for construction and paving of
county road, where county board, which was required by statute to award contract to lowest responsible
bidder, had determined, after inquiry and investigation, that lowest bidder was not responsible, and there
was some legal evidence before the board to support such determination. NRS 403.490(5).
2. Highways.
The performance bond required by statute of contractor for construction of county road is merely one
factor in determining whether contractor was lowest responsible bidder within statutory requirement that
contract shall be awarded to lowest responsible bidder. NRS 403.490(5).
3. Mandamus.
Court, determining in mandamus proceeding whether contractor was lowest responsible bidder to whom
county board should have let contract for construction of county road, should consider only information
upon which board acted. NRS 403.490(5).
4. Highways.
The county board, when it determines whether contractor was lowest responsible bidder to whom county
board should have let contract for construction of county road, is not limited by common-law or statutory
rules of evidence, or by technical or formal rules of procedure. NRS 403.490(5).
5. Highways.
The statute vests discretion in county board to determine whether lowest bid submitted for construction of
county road was submitted by lowest responsible bidder. NRS 403.490(5).
OPINION
The appellants will be referred to as the Board, and the respondent as Pederson.
Pederson sought a writ of mandamus in the district court to compel the Board to accept his
bid and award him a contract for the construction and paving of a road in Douglas County. He
contended that he was the lowest responsible bidder within the meaning of NRS
403.490(5).
1
He does not assert that the Board acted fraudulently or in bad faith. He
contends only that its conduct in rejecting his bid and awarding the contract to the next lowest
bidder was arbitrary, capricious, and amounted to an abuse of discretion. The Board conceded
that Pederson's bid was the lowest bid submitted, but denied that he was the lowest
responsible bidder.
During the course of trial it became apparent that the road job had been substantially
completed by the party to whom the Board had awarded the contract. Accordingly, the trial
court permitted Pederson to amend his petition for a writ of mandamus, to request damages.
____________________

1
NRS 403.490(5) reads in part, The board of county highway commissioners shall award the contract to the
lowest responsible bidder. * * *
Though the petition and answer erroneously assumed that NRS 244.315 was the applicable statute, on appeal
it become clear that NRS 403.490 is the statute under which the Board acted.
damages. NRS 34.270. At the conclusion of trial, that court found that Pederson's bid was the
lowest bid, that he was the lowest responsible bidder, and concluded that the Board had
abused its discretion when it rejected such bid. Damages in the amount of $4,600,
representing the normal anticipated profit to Pederson, had he been awarded the contract,
were allowed by the court, and judgment for that amount was thereafter entered. The Board
appeals.
[Headnote 1]
The central question posed for our determination is whether mandamus is available to
Pederson under the circumstances here presented.
2
In 1881, the same basic problem was
before this court in Hoole v. Kinkead, 16 Nev. 217. It was there held that the determination of
whether a bidder was responsible was a judicial and not a ministerial function; deliberation
was required and discretion was to be exercised. For that reason the court said, A
subordinate body can be directed to act, but not how to act, in a matter as to which it has the
right to exercise its judgment; and where it is vested with power to determine a question of
fact, the duty is judicial, and however erroneous its decision may be, it can not be compelled
by mandamus to alter its determination. Such has been the uniform decision of this and other
courts. Where no discretion is given to an officer or body, mandamus lies to enforce a
performance of the specific act required; but it is otherwise when the duty imposed requires
deliberation and decision upon facts presented. It was for the board in this case to determine
the lowest responsible bidder. They had no right to accept the lowest bid if they were not
satisfied with the responsibility of the bidder, according to the definition of the word
responsible' given above. They had the right to reject plaintiff's bid, and such was their duty,
if, after examination, it was not, in their best judgment, the lowest responsible bid. The
testimony before us is ample to show that, the board acted conscientiously, after faithful
examination of all facts within their reach touching the questions here discussed, and
their decision can not be disturbed in this proceeding."
____________________

2
Pederson concedes that the award of damages is incidental to his right, if nay, to a writ of mandate; that if he
was not initially entitled to the latter, the judgment for damages is invalid.
before us is ample to show that, the board acted conscientiously, after faithful examination of
all facts within their reach touching the questions here discussed, and their decision can not
be disturbed in this proceeding.
[Headnote 2]
Of interest also is dictum in Reno Water, Land & Light Company v. Osburn, 25 Nev. 53,
66, 56 P. 945, 946, an injunction suit, where the court said: Under provisions requiring
proposals to be awarded to the lowest responsible bidder, the board or officer charged with
the award has no discretion, except as to the responsibility of the bidder * * *.3 [Italics
ours.]
Hoole v. Kinkead, supra, appears to be in accord with the clear weight of authority.
Annot., 80 A.L.R. 1382. Pederson candidly acknowledges this to be true. However, he seeks
to dispose of that case by urging that the scope of mandamus has been extended by the
opinion of this court in City of Henderson v. Henderson Auto Wrecking, Inc., 77 Nev. 118,
359 P.2d 743. In that case, we affirmed the district court's judgment that a peremptory writ of
mandamus should issue to require the city council to grant petitioner a use permit and
business license for the operation of a wrecking yard. The council had denied such permit
without any investigation, inquiry, or evidence to support its action, and against the
recommendation of the planning commission, twice made, that the use permit be granted.
Under such circumstances there was a manifest abuse of discretion. Indeed, it could properly
be said that the discretion contemplated by law had not been exercised at all. The council had
acted arbitrarily and capriciously.
[Headnote 3]
The instant case is quite different. The Board, before voting to reject Pederson's bid,
appointed a committee composed of a county commissioner, the county engineer, and the
county road foreman to inquire about Pederson's responsibility.
____________________

3
The performance bond required by NRS 403.490(5) does not compel the conclusion that a bidder is
responsible, as such provision for security is merely one factor in determining responsibility. Annot., 86
A.L.R. 131; see also Hoole v. Kinkead, supra.
Pederson's responsibility. The inquiry disclosed that Pederson was not a prequalified
contractor with the State highway department, though such prequalification was not required
as a condition precedent to the award of a county road contract; that Pederson's foreman, who
presumably would oversee the job, was not reliable; that a former partner of Pederson spoke
disparagingly of him; hearsay, that Pederson had previously experienced trouble with a job at
Carson City; hearsay, that Pederson's foreman, while inebriated, said that his bid was low
and that they were out to get the county.
4

[Headnotes 4, 5]
Nonetheless, Pederson argues that the information obtained by the committee does not
constitute the sound, competent, probative evidence required to sustain the Board's action in
rejecting his bid. The Board's inquiry is not limited by the common law or statutory rules of
evidence, or by technical or formal rules of procedure. Indeed, NRS 403.490 does not provide
for a hearing at all. It does vest a discretion in the Board to determine whether the lowest bid
submitted, was submitted by the lowest responsible bidder. In our view, there was some legal
evidence to support the Board's action. It is conceded that it acted conscientiously and in good
faith. It exercised its discretion after inquiry and investigation. Such did not occur in City of
Henderson v. Henderson Auto Wrecking, Inc., supra. Therefore, we believe that Hoole v.
Kinkead, supra, controls the disposition of this case.
Other questions of significance were presented for our consideration. Is Pederson a party
beneficially interested, NRS 34.170, and entitled to apply for a writ of mandamus, or was
NRS 403.490 enacted solely for the benefit of the public, with the result that a low bidder has
no claim for relief if not awarded the contract? Did Pederson have a plain, speedy, and
adequate remedy in the ordinary course of law, NRS 34.170?
____________________

4
During trial, additional evidence was offered, primarily by Pederson and witnesses supporting him, to
establish his competency and responsibility. Such information, however, was not before the Board when it
rejected his bid. Only the information upon which the Board acted is material to our inquiry. Cf. McKenzie v.
Shelly, 77 Nev. 237, 362 P.2d 268; Nevada Tax Commission v. Hicks, 73 Nev. 115, 122, 310 P.2d 852, 856.
Did Pederson have a plain, speedy, and adequate remedy in the ordinary course of law, NRS
34.170? Does the provision of NRS 403.490(6) may reject any and all bids and advertise
anew suggest that the only recourse available to one beneficially interested is to compel a
readvertisement for bids? We mention such questions solely to indicate that legislative
reappraisal may be desirable.
Reversed.
____________
78 Nev. 111, 111 (1962) Simplot Co. v. Rupe & Son
J. R. SIMPLOT COMPANY, Appellant, v.
DALLAS RUPE & SON, INC., Respondent.
No. 4422
March 8, 1962 369 P.2d 445
Bankers' action to recover commissions on sale of defendant's bonds. The trial court
rendered a judgment for plaintiff, and defendant appealed. The Supreme Court, Badt, C. J.,
held, inter alia, that under agreement which entitled bankers to commission on sale of
defendant's bonds and which required written commitments by purchasing institutions,
buyer's letter stating agreement to buy, after personal inspection and upon terms and
conditions along lines of negotiations, at interest rate within range of negotiation, contingent
on sale of rest of bonds, complied with requirement of written commitment.
Affirmed.
Belford, Anglim & Brown, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey & Folsom, of Reno, for Respondent.
1. Banks and Banking.
Under agreement which entitled bankers to commission on sale of defendant's bonds and which required
written commitments by purchasing institutions, buyer's letter stating agreement to buy, after personal
inspection and upon terms and conditions along lines of negotiations, at interest rate within
range of negotiation, contingent on sale of rest of bonds. complied with requirement
of written commitment.
conditions along lines of negotiations, at interest rate within range of negotiation, contingent on sale of rest
of bonds. complied with requirement of written commitment.
Under agreement which entitled bankers to commission on sale of defendant's bonds, and which required
written commitments by purchasing institutions, buyer's letter stating agreement to buy, contingent on
placement of rest of bonds and upon working out of mutually satisfactory note agreement, complied with
requirement of written commitment.
Evidence in bankers' action to recover commission on sale of defendant's bonds under agreement which
required bankers to produce buyers' written commitments, evidence supported findings that defendant had
intended to waive requirement of written commitments, that such would have been available on demand,
that defendant had approved higher interest rate and terms offered one buyer, and that defendant had not
terminated agreement before commitments were procured.
OPINION
This is an appeal from a judgment in favor of Dallas Rupe & Son, Inc., hereinafter referred
to as Rupe, in the sum of $110,000 against J. R. Simplot Company, hereinafter called
Simplot, for a commission for obtaining purchasers of $5,500,000 of Simplot's bonds.
Simplot's defenses to the action and its grounds assigned for reversal are hereinafter discussed
at length. We have decided that the assignments of error are without merit and that the
judgment must be affirmed.
Rupe, a Texas investment banking corporation, and Simplot, a Nevada corporation with
manufacturing, processing, mining, agricultural and timber interests, tentatively agreed in
June 1958 that Rupe would raise a $4,500,000 loan for Simplot for a 2 percent commission
on the amount thus raised. On September 2, 1958 a written preliminary underwriting
agreement was entered into, reciting Simplot's desire to liquidate its presently outstanding
funded indebtedness, and to raise additional operating capital and to negotiate the sale of
$4,500,000 first-mortgage bonds, and that Rupe agreed to sell or underwrite the sale of such
bonds secured by a first mortgage and chattel mortgage on all its real and personal property.
all its real and personal property. Right of prepayment of $1,000 or any multiple thereof on
any semiannual interest-payment date after 60 days' written notice was permitted on a 5
percent penalty basis within one year and reduced at the rate of one half of 1 percent for each
year thereafter, with no prepayment penalty after ten years. Prepayment of larger sums under
certain specified conditions was permitted without penalty. The bonds were to bear interest
not in excess of 5 3/4 percent, payable semiannually, with interest on past due payments at 8
percent. The Bankers shall submit the application for such loan on a basis of interest at the
rate of 5 1/2 per centum per annum but in the event they conclude that they are unable to sell
such bonds at such interest rate, they shall notify the Company that in their opinion it is
necessary to increase such interest rate offered on the bonds to a rate not in excess of 5 3/4 %
per annum and upon the approval of the Company, the Bankers shall be authorized to
increase such offered rate. Provision was made for the physical form of the bonds, the
selection of a trustee, and that the bonds should contain such terms, conditions, provisions,
and covenants and such other special provisions which may be made a part of a further and
supplementary underwriting agreement and shall be mutually agreed upon by the parties
hereto. It provided for submission and examination of abstracts of title and that the
obligation of Rupe to purchase the issue should be subject to the approval of its counsel as to
validity.
Paragraph 7 is as follows: Bankers agree that they will use the facilities of their
organization to offer said bonds for sale to their customers, but in the event they fail to effect
the sale thereof within ninety days from date hereof, the Company may, at its option,
terminate and cancel this agreement and the parties hereto shall thereupon have no further
obligation to each other under the terms hereof. However, in the event the Bankers notify the
Company within said period of time that they have underwritten or have sold such issue of
bonds, this agreement shall remain in full force and effect. Any such underwriting or sale
shall be evidenced by a written commitment signed by some financially responsible
insurance company or other financial institution or institutions, copy of which shall be
delivered to the Company by the Bankers."
by a written commitment signed by some financially responsible insurance company or other
financial institution or institutions, copy of which shall be delivered to the Company by the
Bankers.
Paragraph 12 of the agreement reads in part as follows: Contemporaneously with the
delivery of a written commitment as provided for in Section 7 hereof, the Company shall pay
to the Bankers as compensation for services rendered by them in connection with the sale of
such bonds, a sum equal to two per cent (2%) of the principal amount of such bonds, * * *.
The parties entered into a written supplemental agreement November 6, 1958, increasing
the amount of the proposed bond issue to $5,500,000. At the same time they agreed upon
other special provisions contemplated by the original agreement. They included numerous
provisions to be recited upon the face of the bonds. Such matters, however, present nothing
involved in this appeal.
On November 26, 1958 the parties entered into a written Extension of Preliminary
Underwriting Agreement, section 1 of which reads as follows: Section 7 of such
Preliminary Underwriting Agreement is hereby revised to provide that in the event the
Bankers fail to effect the sale of the First Mortgage Bonds referred to in such agreement on or
before the 15th day of January, 1959, the Company may, at its option, terminate and cancel
such Preliminary Underwriting Agreement and all amendments and supplements thereto, and
the parties hereto shall thereupon have no further obligation to each other under the terms
thereof. Each reference in such Preliminary Underwriting Agreement to such original period
of ninety days shall hereafter be read to mean a reference to the period of time ending at the
close of business on the 15th day of January, 1959. Time for Rupe's performance was
accordingly extended to January 15, 1959. The provision with reference to written
commitments was not altered.
On March 13, 1959 Simplot telephoned Rupe and notified him that the agreement was
terminated. This was confirmed in a letter of March 16, 1959, advising: "Pursuant to the
provisions of Section 7 of the Preliminary Underwriting Agreement * * * we desire to give
you notice of termination and cancellation of said agreement."
confirmed in a letter of March 16, 1959, advising: Pursuant to the provisions of Section 7 of
the Preliminary Underwriting Agreement * * * we desire to give you notice of termination
and cancellation of said agreement.
In its specification of errors in its appeal from the judgment awarding a commission to
Rupe, Simplot asserts that the lower court erred in finding that Rupe had performed its
contract. It asserts that there was no compliance with that part of paragraph 7 of the original
agreement above quoted requiring written commitments signed by some financially
responsible insurance company or other financial institution or institutions, copy of which
shall be delivered to the company [Simplot] by the bankers [Rupe]. Analyzing this
contention, Simplot refers to the amounts that were to be purchased by the four lenders
supplied by Rupe as follows:
American National Insurance Company
$1,500,000
Northwestern National Life Insurance Co.
800,000
Seattle First National Bank
1,800,000
Northwestern Mutual Life Insurance
Company 1,400,000

_________

Total......................................
$5,500,000
[Headnote 1]
Taking these in order, Simplot attacks each one as failing of compliance with paragraph 7
of the agreement. It asserts that American National made nothing but a conditional agreement
to participate. American National's letter was as follows: This is to let you know that the
Finance Committee of the American National Insurance Company has approved at their
meeting this morning a participation up to $1,500,000 in the first mortgage loan to the J. R.
Simplot Company amounting to $5,500,000. This loan is contingent upon the interest rate on
the bonds which we purchase being not less than 5 3/4%, as well as other terms and
conditions being worked out along the lines of previous telephone conversations.
telephone conversations. In addition, the loan is also contingent upon a final personal
inspection by the writer at the earliest possible date. Also, as mentioned over the phone our
participation is contingent on the participation by other satisfactory lenders in the total
amount of the loan $5,500,000. Simplot contends that the contingency of the 5 3/4 percent
interest rate, the contingency of other terms and conditions being worked out along the lines
of previous telephone conversations, the contingency of a personal inspection and the
contingency of the participation by other satisfactory lenders in the total amount of
$5,500,000, all show conclusively that this is simply a conditional or contingent undertaking
and not the commitment contemplated by the contract. However, the 5 3/4 percent interest
rate was thereafter agreed upon by the parties; it is entirely unreasonable to contend that
Simplot expected to obtain a loan of $5,500,000 without inspection; the necessity of working
out terms and conditions along the lines of previous discussions added no additional
condition; and the participation of other companies for the aggregate bond purchase was
anticipated under paragraph 7 of the agreement, indicating a participation by some financially
responsible insurance company or other financial institution or institutions. The parties never
contemplated, as is clear from their acts and statements, anything but an aggregate of
$5,500,000 from several lenders. It is our conclusion that the commitment of American
National Insurance Company was in compliance with the agreement.
[Headnote 2]
Northwestern National Life Insurance Company committed itself by letter as follows:
Today our Finance Committee approved a participation of $800,000 in the proposed
financing for J. R. Simplot, subject to placement of the remaining portion of $4,700,000,
making a grand total of $5,500,000 of financing. This commitment is further subject to the
working out of a mutually satisfactory note agreement along the lines spelled out in your
application for financing dated October 10, 1958. Appellant attacks this as not being a
commitment but as being likewise conditional.
but as being likewise conditional. The first condition is the placement of the remaining
$4,700,000 by others. This we have disposed of above. The second asserted condition that the
commitment is further subject to the working out of a mutually satisfactory note agreement
along the lines spelled out in Simplot's application likewise presented no new condition. The
October 10, 1958 Application for Financing by Simplot is a document almost 40 pages
long giving a history of the business and organization of its sundry divisions, its subsidiaries,
stock ownership, officers and directors and key personnel, and the security behind the loan,
with extensions of valuation for the various items showing a grand total for all properties in
the sum of $14,155,730. It contains an unaudited balance sheet as of July 31, 1958 showing
total assets of $17,001,460, as well as an earlier balance sheet, and a statement of audited
income for the years 1954 to 1958.
The July 31, 1958 balance sheet showed an item of cash in the sum of $596,292. A Pro
Forma Balance Sheet of the same date, reflecting the new loan, shows cash of $675,292.
Balance sheet of February 28, 1958 shows cash of $1,148,371. Notes to the financial
statements discussed in detail a $2,500,000 long-term note to Prudential Insurance Company
of America, the company's agreement in connection therewith to maintain a certain excess of
current assets over current liabilities, to limit sales and assets other than products, to limit
dividend payments, etc. The February 28, 1958 pro forma statement showed outstanding
demand bank notes for $4,500,000, borrowed under the terms of a 6 percent bank credit
agreement. That the contemplated refunding issue should be without limitation of any kind
and without a mutually satisfactory note agreement (as indicated in the several indebtednesses
to be refunded by the new issue) cannot reasonably be written into the contractual
requirement for commitment referred to in paragraph 7 of the underwriting agreement.
Rupe does not contend that Seattle First National Bank ever forwarded a written
commitment to Simplot.
In this regard the trial court's written opinion said: It appears from the record, however, that
Robert Beaupre of that Bank advised defendant Simplot by telephone on February 25, 1959
that his Bank would participate in the amount of $1,800,000.00 at 5 3/4%. There seems to be
no question but what Seattle First National Bank considered itself sufficiently committed' to
work out the details of the loan agreement and in fact referred to the Commitment' in Exhibit
2, a letter from Beaupre of Seattle First National Bank to plaintiff. It further appears that a
written letter of commitment would have been forthcoming if such a request therefor had
been made.
Rupe has contended throughout that oral and written negotiations were continuously in
progress to the time of Simplot's notice of cancellation of the agreement, and that written
commitments from Seattle First National Bank and Northwestern Mutual Life Insurance
Company could have been obtained on short notice if requested, and that the continuing
negotiations constituted an implied extension of time and a waiver by Simplot of the
immediate production of the written commitments of these two lenders.
The trial court's written opinion with respect to the commitments of the Seattle First
National Bank and Northwestern Mutual Life proceeds as follows:
Northwestern National Life Insurance likewise indicated its willingness to proceed
subject to inspection and the working out of a satisfactory note agreement along the lines
spelled out in your application for financing dated October 10, 1958. * * * This cannot
possibly constitute a qualified acceptance. Furthermore, the personal inspection never seems
to have been important either to this particular transaction or any other one.
Irrespective of the interest dispute Northwestern Mutual's commitment is likewise in
order. Defendant contends that the pledge of stock of subsidiaries is at variance with the
original contract and yet in Exhibit D, the application for financing, we find Security Behind
This Loan: The extensive and diverse properties owned by the J. R. Simplot Company will
be offered as security for this loan * * *.'
owned by the J. R. Simplot Company will be offered as security for this loan * * *.'
Similarly a careful analysis of all the other claimed qualifications indicates to me that
they are unfounded. For instance, it is claimed that the redemption clause6% penalty
through the first five years and declining thereafter is at variance with Paragraph 2 of the
Preliminary Underwriting Agreement.' This is true and yet the Supplemental Agreement * *
* and the attached Memorandum Defining Special Covenants,' Paragraph 17, which contains
revisions of covenants of Loan Agreement specifically states that Paragraph 5, relating to
prepayments shall be revised in accordance with terms agreed upon by purchasers of the
bonds.' Obviously, defendant must be bound by that.
With respect to the claimed qualifications no redemptions may be made from or in
contemplation of funds borrowed at a lower interest rate' which, it is claimed, is not contained
in the basic contract, it first may be said that Paragraph 17 above quoted must necessarily
control. More important, Paragraph 5 of Exhibit A clearly gives Bankers, plaintiff or their
counsel, right to fix certain terms and conditions as shall be usual and customary in
transactions of such character,' which provisions of Northwestern Mutual were usual and
customary so far as I can tell, no evidence appearing to the contrary.
* * * * *

Since it is claimed and likewise admitted that Seattle First National never presented a
written commitment within the terms of Exhibit A reference must be made to the record to
determine whether or not a waiver of the written requirement took place.
Mr. Simplot visited with Mr. Beaupre and the Senior Loan Committee of the Bank on
February 11th or 12th, 1959, at which time there was a considerable discussion over the loan
application. Thereafter, Beaupre along with Dennard made a personal inspection of the J. R.
Simplot plant. Following that the Senior Loan Committee approved the loan as to term,
amount and interest rate.
rate. On or about February 25, 1959, Beaupre called Simplot, advised him that the Senior
Loan Committee had approved the loan. Apparently nothing was discussed as to prepayment
penalties, for the Bank's practice did not require it. There was a discussion, however, as to
compensating balances, but nothing was especially set. There is an admission that a written
letter of commitment would have been given to plaintiff after February 25, 1959 if it had been
desired. But there is no evidence that it was. Perhaps defendant's cancellation of the loan
application forestalled a written commitment.
Simplot contends that the Northwestern Mutual Life Insurance insisted on a 6 percent
interest rate, contrary to the terms of the underwriting agreement. This received the particular
attention of the trial court, which said in its opinion:
Actually, there is no dispute as to 5 3/4% rate on three of the loans. There is a decided
dispute, however, as to the 6% on the Northwestern Mutual loan. In fact, defendant denied
that he ever approved a 6% rate. Since there is an admitted conflict in the evidence, I suppose
that one must determine wherein the truth lies by reviewing pertinent portions of the
testimony.
It appears that defendant knew of the Northwestern Mutual 6% commitment on February
2, 1959 when Dennard, of Rupe, telephoned [Simplot], advised him of the 6% interest rate
and also a 6% prepayment penalty, inquired whether the 6% interest rate was agreeable, and
although it seems defendant remonstrated he apparently, according to Dennard, agreed and
since an inspection trip was in the offing by Scrivener of Northwestern Mutual, the necessity
therefor continued and from then on arrangements were made for the inspection trip by
Scrivener, Dennard and Beaupre on February 13, 1959. If the new interest rate was not
acceptable one may well ask: why the defendant did not tell them the trip was off. Defendant
notwithstanding knowledge of a 6% interest, and this appears from his deposition read into
the record by way of impeachment, made a trip over to Seattle, evidenced every intention of
proceeding with the loan and personally met Scrivener and the other gentlemen at his
home in Boise, where the inspection trip took place.
the loan and personally met Scrivener and the other gentlemen at his home in Boise, where
the inspection trip took place.
It also appears from plaintiff's testimony that defendant told Rupe that Northwestern
Mutual's 6% interest rate and prepayment penalty were agreeable and that he expressed such
acceptance to Dennard again. Nowhere is there any testimony that he rejected the
Northwestern offer. From the evidence presented, from the fact that additional information
was submitted to Scrivener, through John M. Dahl, defendant's Agent, it is reasonable to
conclude that defendant agreed to a 6 % interest rate even though it might be of some
additional cost over the years.
The trial court further said:
The sale of $5,500,000.00 of financing was to be evidenced by written commitments
from responsible financial institutions. Defendant says only three qualified letters of
commitment were produced and one qualified intention by telephone. Since I have heretofore
decided that the written letters of acceptance were proper commitments, up to that point at
least, plaintiff had complied with the Underwriting Agreement. With respect to the oral
telephone commitment, it was considered as such as written commitment, it was considered
as such [a written commitment] by defendant and thereafter relied upon by plaintiff. I am
satisfied that a situation had been reached in the not inconsiderable course of an involved
financial transaction when the final details were well on the way to being completed.
Although defendant had the option to terminate after January 15, 1959, he actually did not
exercise that right until March 13, 1959, notwithstanding the fact that the commitments had
been firmed up.
The trial court's formal finding in this respect was as follows:
Plaintiff secured a commitment from the Seattle First National Bank, of which the said
bank and plaintiff each notified defendant, for the amount of $1,800,000 at 5 3/4% interest.
Defendant intended to waive the requirement that this commitment be reduced to written
form and delivered to it. The commitment of Seattle First National Bank would have been
reduced to writing and delivered to defendant had it not waived such requirement, and
had it made request that such be done.
First National Bank would have been reduced to writing and delivered to defendant had it not
waived such requirement, and had it made request that such be done. The reduction of the
commitment of Seattle First National Bank to written form, and delivery thereof to defendant,
was forestalled by defendant by the repudiation on May 13, 1959 of the Preliminary
Underwriting Agreement, as supplemented, extended and amended.
Rupe's contention that Simplot had extended time for compliance, and Simplot's denial
thereof, are closely tied together. In this regard the trial court stated:
There doesn't seem to be any serious dispute among the parties hereto that the
Preliminary Underwriting Agreement was not terminated, ipso facto, on January 15, 1959 in
view of the fact that Simplot could terminate after that date only by giving notice which was
not given until March 13, 1959. Furthermore, there was so much activity after January 15,
1959, openly acquiesced in by Simplot, that the only fair construction of the evidence on this
point is that the option to terminate and cancel was not in fact exercised until March 13, 1959
during which time the Preliminary Underwriting Agreement was in effect.
[Headnote 3]
A careful consideration of the depositions on file, the testimony of the witnesses, the
correspondence of the parties, and other numerous exhibits convinces us that the trial court's
findings find ample support in the record.
Accordingly we approve the trial court's conclusion as follows:
That the securing of a commitment,' as that term is used in the Preliminary Underwriting
Agreement, as supplemented, extended and amended, is a preliminary step to the working out
of the final terms of the loan agreement and other closing papers, under the terms of the
Preliminary Underwriting Agreement, as supplemented, extended and amended. Such
agreement continued in full force and effect after plaintiff gave defendant notice that it had
secured commitments for the sum of $5,500,000 from the lending institutions, and at such
time defendant became legally bound to pay plaintiff, for the latter's services, 2% of
$5,500,000."
at such time defendant became legally bound to pay plaintiff, for the latter's services, 2% of
$5,500,000.
In the view we have thus taken, it becomes unnecessary to discuss how other authorities
define a commitment or the lexicographers' definition of the word. Neither do we find it
necessary to discuss the holdings of various courts to the effect that to entitle a broker to a
commission the acceptance of the buyer's purchase must be unconditional. These
statements of law do not fit the facts of this case. Boiled down to its simple fundamental,
Simplot contends that it was entitled to cancel the agreement because the commitments relied
upon by Rupe were qualified and conditional and not a compliance with the requirements of
the contract. We are in complete accord with the trial court's findings and conclusions to the
contrary on this fundamental issue.
The judgment is affirmed.
McNamee, J., and Gregory, D. J., concur.
Mr. Justice Thompson being disqualified, the Governor commissioned Honorable Frank
B. Gregory, judge of the First Judicial District, to sit in his place.
____________
78 Nev. 123, 123 (1962) Ex Parte Morris
In the Matter of the Application of TERRY E.
MORRIS for a Writ of Habeas Corpus.
No. 4504
March 8, 1962 369 P.2d 456
Original proceeding. Application of Terry E. Morris for a writ of habeas corpus.
The Supreme Court held that defendant was entitled to dismissal of information where
trial, set within 60 days after information, was vacated without defendant's consent and on
account of clerk's unexplained failure to call jury.
Writ granted, and petitioner ordered to be discharged from custody.
Maurice J. Sullivan, of Reno, for Petitioner.
Roger D. Foley, Attorney General, William J. Raggio, District Attorney, and Herbert F.
Ahlswede, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Unless good cause to contrary is shown, district court must order dismissal of information on defendant's
motion, where he is not brought to trial within statutory period. NRS 178.495.
2. Criminal Law.
Defendant was entitled to dismissal of information where trial, set within 60 days after information, was
vacated without defendant's consent and on account of clerk's unexplained failure to call jury. NRS
178.495.
OPINION
Per Curiam:
Original proceeding for a writ of habeas corpus.
Petitioner was arrested on October 26, 1961 pursuant to a warrant of arrest properly issued
charging him with first degree burglary. He is presently in custody as a result of such warrant.
On November 13, 1961 an information was filed charging first degree burglary. On
November 16, 1961 petitioner was arraigned on said charge and entered a plea of Not
Guilty. At that time trial by jury was set for January 8, 1962. Although petitioner was
prepared to go to trial on said last-mentioned date no jury was summoned and the trial setting
was vacated without the consent of petitioner, and over his objection was reset for March 12,
1962. On January 26, 1962 petitioner moved said district court for an order dismissing the
information. Said motion was denied on February 9, 1962.
NRS 178.495 provides: If a defendant whose trial has not been postponed upon his
application is not brought to trial within 60 days after the finding of the indictment or filing of
the information, the court shall order the indictment or information to be dismissed, unless
good cause to the contrary is shown.
The trial date of January 8 was within the 60-day period of the statute; however, the March
12 setting would bring the trial to a time beyond said period.
The record contains an affidavit which satisfies this court that the postponement of the trial
was in no manner necessitated by any action on the part of the district attorney's office. So far
as appears in the record the trial date was postponed because the clerk of the district court, for
reasons which do not appear, failed to call a jury for the appointed time of trial.
[Headnote 1]
Unless good cause to the contrary is shown, it is imperative under the statute for the
district court to order the dismissal of an information on motion of the defendant where he is
not brought to trial within the statutory period. People v. Fegelman, 66 Cal.App.2d 950, 153
P.2d 436; Ex parte Ford, 160 Cal. 334, 116 P. 757, 35 L.R.A. (N.S.) 882. There is no
presumption that good cause exists, In re Begerow, 133 Cal. 349, 65 P. 828, 56 L.R.A. 513,
and the burden of showing good cause for delay is on the prosecution. Harris v. Municipal
Court, 209 Cal. 55, 285 P. 699.
[Headnote 2]
The statute would have little meaning or benefit if its provisions were not given effect in
those cases involving a postponement of trial beyond the statutory period which are devoid of
any showing of the existence of good cause.
The detention of petitioner being unlawful he is entitled to his immediate release. The
petitioner will stand discharged.
____________
78 Nev. 126, 126 (1962) Wagon Wheel Saloon v. Mavrogan
WAGON WHEEL SALOON and GAMBLING HALL, INC. a Nevada Corporation
Appellant, v. GEORGE MAVROGAN, Respondent.
No. 4463
March 16, 1962 369 P.2d 688
Appeal from judgment of the First Judicial District Court, Ormsby County; Frank B.
Gregory, Judge.
Personal injury action. The trial court entered judgment on verdict for the plaintiff, and the
defendant appealed. The Supreme Court, Thompson, J., held that evidence raised jury
question whether proximate cause of plaintiff's fall on stairway to entrance to defendant's
gambling hall was presence of nails and wood on step.
Judgment affirmed.
Vargas, Dillon & Bartlett and Alex. A. Garroway, of Reno, for Appellant.
William J. Crowell of Carson City, and Stanley P. Makay, of San Francisco, for
Respondent.
1. Negligence.
Evidence raised jury question whether proximate cause of plaintiff's fall on stairway to entrance to
defendant's gambling hall was presence of nails and wood on step.
2. Negligence.
Evidence raised jury question whether plaintiff, who fell on stairway to entrance to defendant's gambling
hall, exercised ordinary care for his own safety.
3. Negligence.
Usually, contributory negligence is issue of fact; it becomes question of law only when evidence is of
such character as to support no other legitimate inference.
4. Negligence.
When unsafe condition exists which has been created by owner of property himself, or by employee of
that owner within scope of his employment, invitee need not prove owners's notice of knowledge of
dangerous condition: such knowledge is imputed to owner.
Complaint as to content of instruction would not be considered by Supreme Court, where objection had
not been made to giving of instruction. NRCP 51.
Claim of error in admitting testimony would not be considered on appeal where objection was not timely
made and same evidence had been previously received without objection.
OPINION
Mavrogan, an invited guest, fell while descending a stairway to an entrance of the Wagon
Wheel Saloon and Gambling Hall, Inc., herein referred to as Wagon Wheel. Thereafter he
commenced suit against the Wagon Wheel to recover damages for personal injuries sustained,
claiming negligence. By answer, the Wagon Wheel denied any negligence, and affirmatively
averred Mavrogan's contributory negligence as a separate defense. A jury returned a verdict
for Mavrogan, assessing damages in the sum of $6,803.35. Judgment was entered thereon.
The Wagon Wheel appeals.
The following assignments of error are made: First, that the record does not contain
evidence proving, or tending to prove, the proximate cause of Mavrogan's fall; second, that
Mavrogan was guilty of contributory negligence as a matter of law; third, that the record does
not contain evidence proving, or tending to prove, that the Wagon Wheel had notice or
knowledge, actual or constructive, of the existence of debris on the stairway; and, fourth, that
prejudicial error occurred when the trial court permitted Mavrogan to testify to a statement
by, the security guard of the Wagon Wheel, which statement could be construed by the jury as
an implied admission of fault. We turn to discuss these claims of error.
[Headnote 1]
1. Proof of Proximate Cause: Mavrogan was asked: Q. Now did you notice what was on
the step on which you slipped? You said you slipped on the third step; is that right? A. Yes,
sir. Q. What was it there that you slipped on? A. Well, there was some kind of nails, some
kind of pieces of wood, something. I feel I step on it.
78 Nev. 126, 128(1962) Wagon Wheel Saloon v. Mavrogan
It is true that other testimony given by him regarding the cause of his fall was confused and
obscure. However, the quoted testimony is not. The jury was free to accept it. In Rickard v.
City of Reno, 71 Nev. 266, 288 P.2d 209, upon which the Wagon Wheel primarily relies,
there was no evidence as to the cause of claimant's fall; she did not know what had happened.
Rickard v. City of Reno, supra, does not support appellant's contention. We find no merit in
this claim of error.
[Headnotes 2, 3]
2. Regarding Contributory Negligence: The Wagon Wheel urges that the record discloses
Mavrogan's contributory negligence as a matter of law. Usually, the issue is one of fact; it
becomes a question of law only when the evidence is of such a character as to support no
other legitimate inference. Carter v. City of Fallon, 54 Nev. 195, 201, 11 P.2d 817, 819, 16
P.2d 655; Gordon v. Cal-Neva Lodge, Inc., 71 Nev. 336, 291 P.2d 1054. The evidence before
us is not of such character. While descending the stairway, Mavrogan did not particularly
notice the nails and wood on the step where he slipped and fell a moment later. He had no
prior knowledge of their existence at that place. He was looking at others who were also
walking down the stairway, and at the bus which he and others intended to board for their
return trip to San Francisco. His attention was momentarily attracted in another direction.
Under such circumstances it was for the jury to determine whether he exercised ordinary care
for his own safety. Cf. City of San Diego v. Perry, 9 Cir., 124 F.2d 629; Merchants' Ice &
Cold Storage Co. v. Bargholt, 129 Ky. 60, 110 S.W. 364. Accordingly, this claim of error is
without validity.
[Headnotes 4, 5]
3. Regarding Actual or Constructive Notice to the Wagon Wheel of the Existence of
Debris on the Stairway: The trial court gave the following instruction: When an unsafe
condition exists which has been created by the owner of the property himself, or by an
employee of that owner within the scope of his employment, an invitee need not prove the
owner's notice or knowledge of the dangerous condition.
of the dangerous condition. Such knowledge is imputed to the owner.
The record contains some evidence from which the jury could reasonably infer that a
carpenter employee of the Wagon Wheel created the unsafe condition, i.e., the nails and
pieces of wood on the stairway. The instruction correctly states the law. Hatfield v. Levy
Bros., 18 Cal.2d 798, 117 P.2d 841; Sanders v. MacFarlane's Candies, 119 Cal.App.2d 497,
259 P.2d 1010. Indeed, the Wagon Wheel does not urge that it is an incorrect statement.
Objection was not made to the giving of the instruction as required by NRCP 51; hence,
complaint as to its content may not now be considered. Lathrop v. Smith, 71 Nev. 274, 288
P.2d 212.
[Headnote 6]
4. The Statement by the Security Guard: Counsel for the Wagon Wheel objected to
testimony from Mavrogan regarding a statement made by a security guard of the Wagon
Wheel. He testified that the guard said, Don't worry. We take care of you. Don't worry, we
take care of you. Don't worry. You going to doctors in San Francisco. * * * We take care of
your case. * * * We stay behind you. The objection was on the ground that the officer's
identity was not shown; that his authority was not established; that it was not shown that his
duties embraced the authority to make statements for his employer. We need not consider
such objection, nor whether the proper ground for objection was asserted.
It is clear from the record that the objection was not timely made. The same evidence had
been previously received without objection. Accordingly, there is no substance to this claim
of error. Barra v. Dumais, 76 Nev. 409, 414, 356 P.2d 124, 126.
Affirmed.
____________
78 Nev. 130, 130 (1962) Ambrose v. Bd. of Dental Examiners
FRANK AMBROSE, Doing Business as QUALITY DENTAL LABORATORY, Appellant,
v. THE BOARD OF DENTAL EXAMINERS OF NEVADA, Consisting of ROSS
WHITEHEAD, VINCENT SANNER, CHARLES McCUSKEY, MORRIS GALLAGHER,
HOWARD WOODBURY, DAVID MELARKEY, and MARCUS WALTZ, Respondents.
No. 4433
March 19, 1962 369 P.2d 672
Appeal from the Second Judicial District Court, Washoe County; Peter Breen, Judge.
The Board of Dental Examiners of Nevada and the members thereof brought a suit against
a dental laboratory technician to enjoin him from doing certain acts in violation of the Nevada
Dental Act. The lower court rendered an order granting a preliminary injunction, and the
technician appealed. The Supreme Court, McNamee, J., held that the repairing of broken
dentures without prescriptions by the technician constituted the practice of dentistry without a
license in violation of the Nevada Dental Act.
Affirmed.
Harry A. Busscher and Harry D. Anderson, of Reno, for Appellant.
Goldwater, Taber and Hill and Cooke & Roberts, of Reno, for Respondents.
1. Physicians and Surgeons.
Dental laboratory technician who repaired broken dentures without prescriptions engaged in practice of
dentistry without licence in violation of Nevada Dental Act. NRS 631.090.
Provisions of Nevada Dental Act classifying certain advertising as dishonorable or unprofessional
conduct apply not only to dentists but to dental laboratories. NRS 631.050, subd. 1(d).
3. Injunction.
Fact that preliminary injunctive order restrained dental laboratory technician, who had practiced dentistry
without a license by repairing broken dentures, from doing other acts prohibited by Nevada Dental Act,
though there was not showing that he committed such acts, was immaterial, and those
provisions of injunction would be considered surplusage.
that he committed such acts, was immaterial, and those provisions of injunction would be considered
surplusage. NRS 631.050, subd.1(d), 631.090.
4. Injunction.
Preliminary injunctive order restraining dental laboratory technician from placing artificial teeth in mouth
of person, an act prohibited by Nevada Dental Act, was not improper because it also prohibited him from
directing that such be done, since Nevada Dental Act by implication prohibits such conduct by unlicensed
person. NRS 631.090, 631.400.
5. Statutes.
Nevada Dental Act is not unconstitutional on ground that it attempts to regulate dental laboratories and
dental technicians without title giving such indication. NRS 631.050, subd. 1(d), 431.090, 631.400.
OPINION
In this case we are concerned with an appeal from an order granting a preliminary
injunction. Our disposition of such appeal renders unnecessary the consideration of other
matters appealed from.
The first count of the complaint alleges that appellant, doing business as Quality Dental
Laboratory, accepted one Jules Meyers as a customer for the purpose of repairing a broken
denture and alleges that in doing so he violated certain specified provisions of the Nevada
Dental Act. The second count alleges that in doing so he engaged in the practice of dentistry
without a license. The third count alleges that he advertised for business and that such
conduct was dishonorable and unprofessional under the Act. Respondents pray for an
injunction.
After a hearing, the lower court formally found that appellant for two years has owned and
operated a dental laboratory in Reno, Nevada, during which period of time he has held
himself out to the general public as being willing and able to supply artificial teeth and to
perform mechanical work as a dental laboratory technician upon inanimate objects; that he
has performed said services without written prescriptions from licensed dentists; that he
accepted Jules Meyers as a customer and repaired for him a broken denture charging and
receiving a fee therefor; that Jules Meyers had no prescription from a licensed dentist;
that Jules Meyers suffered a massive infection from the repaired denture; that appellant
had never been licensed to practice dentistry.
receiving a fee therefor; that Jules Meyers had no prescription from a licensed dentist; that
Jules Meyers suffered a massive infection from the repaired denture; that appellant had never
been licensed to practice dentistry.
Based on such findings, a preliminary injunction was issued restraining appellant during
the pendency of the action from the following:
1. Engaging in the practice of dentistry in the State of Nevada without a license so to do;
2. Advertising or permitting to be advertised by any media the price, cost, charge, fee or
terms of credit for his services, or the material used or to be used by him in the performance
of his work;
3. Advertising the services of his dental laboratory directly to the general public;
4. Supplying artificial teeth as substitutes for natural teeth without first obtaining a written
prescription for such work from a dentist licensed to practice in Nevada;
5. Placing artificial teeth in the mouth of a person, or directing that such be done, without
first having a clinical inquiry and examination of the mouth and teeth made by a dentist
licensed to practice in Nevada;
6. Performing mechanical work, as a dental laboratory technician, upon inanimate objects,
without first obtaining a written prescription for such work from a dentist licensed to practice
in Nevada.
The first error assigned is that the evidence was insufficient to justify the granting of a
preliminary injunction.
Jules Meyers testified that he broke his denture early one morning and needed it repaired
before he started work. Upon his request, appellant repaired it for him. The denture fit
perfectly in his mouth before it was broken and he never had any trouble with it prior to the
break. After the repair a sore spot developed on the back of his gum due to the denture
rocking in his mouth. This condition became worse and an infection developed in his mouth
which required medical treatment. Appellant testified that he owned and operated the Quality
Dental Laboratory for almost three years, which was a fully equipped dental laboratory;
that he was not licensed to practice dentistry; that in November of 1960 he repaired a
broken denture belonging to Jules Meyers without a prescription of a licensed dentist;
that he has "a lot of customers" come to his office for repair of dentures; that he makes it
a practice to have his customers sign a statement that he does not look in nor do any
work inside the mouth of a customer; that he did not represent himself to be anything
other than a dental technician; and that he does his work without ever examining the
mouth of a patient or making a determination as to whether or not a denture fits.
the Quality Dental Laboratory for almost three years, which was a fully equipped dental
laboratory; that he was not licensed to practice dentistry; that in November of 1960 he
repaired a broken denture belonging to Jules Meyers without a prescription of a licensed
dentist; that he has a lot of customers come to his office for repair of dentures; that he
makes it a practice to have his customers sign a statement that he does not look in nor do any
work inside the mouth of a customer; that he did not represent himself to be anything other
than a dental technician; and that he does his work without ever examining the mouth of a
patient or making a determination as to whether or not a denture fits. Expert testimony was to
the effect that Meyers had a complicated mouth infection caused by a canting of the denture
resulting in pressure; that the denture break had not been repaired accurately, and the
recognized procedure for repairing a denture break was detailed; that the only way to repair
accurately such a break would be to prepare an impression of the mouth of the patient; that an
examination of the mouth, both before and after the repair, would be necessary completely, to
protect the patient.
The foregoing testimony is sufficient to show that appellant rendered the described
services for Meyers, had been rendering similar services to other patients for more than two
years, and contemplated doing so in the future. Thus, the first question to determine is
whether the rendition of such services constitutes the practice of dentistry.
NRS 631.090 states in part: Any person shall be deemed to be practicing dentistry who:
* * * Shall supply artificial teeth as substitutes for natural teeth; or shall place in the mouth
and adjust such substitutes; or does any practice included in the curricula of recognized dental
colleges. This section further provides that nothing therein shall prohibit the performance of
mechanical work, on inanimate objects only, by any person employed in or operating a dental
laboratory upon the written prescription of a licensed dentist.
[Headnote 1]
From appellant's own testimony it appears that he repaired the broken denture of Meyers
without a prescription. That this constitutes the performance of mechanical work on an
inanimate object by a person operating a dental laboratory within the meaning of the Nevada
Dental Act is not disputed by appellant. He attempts, however, to justify this action as a
single act of kindness and helpfulnessa response to an admitted emergency. The evidence,
however, is not limited to this so-designated single act of kindness. As shown above,
appellant testified that during the two years he has operated his dental laboratory many
customers have come to his office for denture repairs without written prescription and that he
requires his customers to sign a statement to the effect that he does not look in their mouths
because of trouble resulting to dental technicians for doing such work without a prescription.
The evidence adequately supports the aforesaid findings of the trial court.
[Headnotes 2, 3]
Appellant's next contention is that the injunctive order exceeds the scope of the statute and
includes matters which are not supported by the record. There is no evidence to show that
appellant, except possibly by inference, advertised in any way to the general public, or that he
supplied artificial teeth as substitutes for natural teeth without first obtaining a written
prescription, or that he placed artificial teeth in the mouth of any person, or directed that this
be done. Such acts by an unlicensed person, however, are prohibited by the Nevada Dental
Act
1
and if we concede that no showing has been made to the effect that appellant has
violated the Act in these respects those parts of the injunction will be considered surplusage,
because an injunction against the practice of dentistry prohibits the performance of all
dental procedures that are designated by the statute as the practice of dentistry.
____________________

1
Appellant maintains that paragraph (d), subsection 1, of NRS 631.050, being that part of the Nevada Dental
Act which classifies certain advertising as dishonorable or unprofessional conduct, relates to dentists and not to
dental laboratories. This contention is answered adequately to the contrary in the case of Board of Dental
Examiners v. Jameson, 64 Cal.App.614, 149 P.2d 223, which we approve.
will be considered surplusage, because an injunction against the practice of dentistry prohibits
the performance of all dental procedures that are designated by the statute as the practice of
dentistry. The inclusion of such specific acts places no additional burden on the appellant.
State v. Anderson, 54 Wash.2d 156, 338 P.2d 740.
[Headnote 4]
Appellant points out, however, that the injunction restrains him not only, from placing
artificial teeth in the mouth of a person, an act prohibited by the statute, but also from
directing that such be done. Although these italicized words are not found in the statute, we
construe the provisions of NRS 631.090 as prohibiting by implication such conduct by an
unlicensed person, and as placing such injunctive order within the purview of the statute.
An injunction in this type of case is specifically permitted by virtue of NRS 631.400 which
provides for injunctions [w]henever any person has engaged or is about to engage in any acts
or practices which constitute or will constitute an offense against [the Nevada Dental Act].
In permitting the injunction as issued in the court below to retain such surplusages, for the
reason hereinbefore given, is in no degree to be construed as a sanction by this court of the
practice to include in injunctive orders in cases other than those arising under the Nevada
Dental Act the prohibition of particular acts which are not shown by the evidence to have
been committed or are likely to be committed.
The great weight of authority in the United States supports respondents' contention that the
acts of appellant enjoined below are an integral part of the cumulative art of dentistry as
opposed to appellant's contention that they are merely mechanical. State v. Anderson, 54
Wash.2d 156, 338 P.2d 740; Lees v. Oster, 8 Utah 2d 141, 329 P.2d 648; People ex rel.
Chicago Dental Society v. A.A.A. Dental Laboratories, 8 Ill.2d 330, 134 N.E.2d 285;
Holcomb v. Johnston, 213 Ga. 249, 98 S.E.2d 561.
The expert testimony of the witnesses here clearly refutes the claim that the operations
above require only mechanical knowledge.
refutes the claim that the operations above require only mechanical knowledge. From the very
beginning of the profession of dentistry those individuals practicing it have combined the
knowledge of the skilled artisan with the healing hand of medicine, part mechanical and part
scientific, to treat the peculiar ills of the body associated with the oral cavity known as the
human mouth. So much so that the dental profession has been carved out of the broader
medical field into its own. Only in our modern age has the dental laboratory technician' been
created by the dentist to assist him by allowing such artisans to do certain parts of the dentists'
mechanical skills under his supervision to release the doctor for the more important work of
his profession of healing. The mere fact that the making and manufacture of these appliances
are purely mechanical does not mean that the taking of the impression and the fitting of such
prosthetics, as shown by the evidence, does not require the scientific knowledge of the
professionally trained medical man in performing this function. Holcomb v. Johnston, supra.
In Lees v. Oster, supra, the court said, in commenting on defendant's contention that his
business is a common calling, requiring no special scientific knowledge:
The fallacy of defendant's contention lies in the assumption that the making and
processing of prosthetics is not an integral part of the cumulative art of dentistry. The
uncontradicted testimony reveals that in acquiring such skill, one-fourth of the matriculants'
attention at dental school is devoted to learning that technique.
2
Without the knowledge
obtained in this sub-area of the whole field, there would be no hope of graduation or of
becoming a licensed dentist.
[Headnote 5]
In a supplemental brief, appellant attacks the constitutionality of the Act contending that it
attempts to regulate dental laboratories and dental technicians and that the title gives no such
indication. This contention is without merit. People ex rel. Chicago Dental Society v. A. A. A.
____________________

2
Similar testimony given in the court below appears in the record.
v. A. A. A. Dental Laboratories, 8 Ill.2d 330, 134 N.E.2d 285; Lasdon v. Hallihan, 377 Ill.
187, 36 N.E.2d 227.
Affirmed.
Badt, C. J., and Brown, D. J., concur.
Thompson, J., being disqualified, the Governor designated Honorable Merwyn H. Brown,
Judge of the Sixth Judicial District, to sit in his stead.
____________
78 Nev. 137, 137 (1962) Humphrey v. Knobel
FRANK HUMPHREY, Appellant, v. JOHN T.
KNOBEL and MARIE E. KNOBEL, Respondents.
No. 4462
March 20, 1962 369 P.2d 872
Action by real estate broker against owner for breach of contract to pay broker a
commission. From an adverse judgment of the trial court, the broker appealed. The Supreme
Court, Badt, C. J., held that exclusive listing agreement whereby owner agreed to pay broker
5 percent of gross selling price of $31,500, was a general contract, and broker, who procured
a purchaser within the 60-day listing period who was willing to pay $30,000, was entitled to a
commission when the owner sold the property 14 days after the listing agreement expired to
the same person for $30,000.
Reversed.
R. P. Wait & E. J. Wait, Jr., of Reno, for Appellant.
Vargas, Dillon & Bartlett and Alex. A. Garroway, all of Reno, for Respondents.
1. Brokers.
Ordinarily, price at which broker is authorized to sell property is considered merely an asking price to
guide broker in his negotiations with prospective purchasers, and if broker procures a purchaser willing to
pay a lower price, owner cannot deprive broker of his commission by conducting final negotiations himself
and selling at a lower figure.
2. Brokers.
Exclusive listing agreement with broker whereby owner agreed to pay broker 5 percent of gross selling
price of $31,500, was a general contract, and broker, who procured purchaser within 60-day listing period
who was willing to pay $30,000, was entitled to commission when owner sold property 14 days after listing
agreement expired to same person for $30,000.
OPINION
The parties will be referred to by their abbreviated names. Humphrey, a real estate broker,
entered into a written contract with Knobel whereunder the former was given an exclusive
listing for a period of 60 days from June 30, 1957, in which to sell a home owned by Knobel
in Reno, Nevada, the listing price being $31,500. The contract describes the property, then
recites: Price: 31,500 Down:...... Enc:....... Committ:...... It then proceeds as follows: Date:
June 30, 1957, Listing: Exclusive By FEH. In consideration of Frank Humphrey, Broker,
advertising or otherwise undertaking to find a purchaser for the property described above, and
on the terms and conditions stated herein, I/we hereby grant and give to Frank Humphrey an
exclusive right * * * to sell said property for a period of Sixty days from date and authorize
him to accept a deposit thereon. If a sale is effected during period of above agency, I agree to
pay Frank Humphrey Five % of the gross selling price as commission for Agent's services
and to furnish buyer at my expense a standard owner's policy of Title Insurance. Receipt of a
copy of this listing is hereby acknowledged.
Owner: J. T. Knobel.
Above agency is hereby accepted and Agent agrees to use diligence in procuring a buyer.
Frank Humphrey
By s/Frank Humphrey
Agent
This Agreement excludes Dr. Callister as possible Buyer as he has already been approached
by Mr. Knobel.
U.F. loan between
14-1500 U.F. Payment around $131.00 Humphrey posted a sign on the property
showing that it was for sale through him as the real estate agent.
Humphrey posted a sign on the property showing that it was for sale through him as the
real estate agent. On August 3, 1957 one Larson and his wife examined the property, made
contact with Humphrey at the latter's office and offered $30,000 for the property, $3,000
down, $7,000 to be paid upon sale of Larson's home in Winnemucca, Nevada, and the
balance represented by note secured by deed of trust. Humphrey advised the Larsons that he
did not believe Knobel would accept their offer but that he would take it up with Knobel.
Humphrey communicated the offer to Knobel, who refused to accept it. Humphrey so advised
the Larsons but gave them Knobel's name, address, and telephone number and suggested that
they contact him. He told them: This type of offer I'm sure is something that Mr. Knobel is
not particularly interested in. However, there is the possibility that he might. You may go and
see him if you wish. Mrs. Larson subsequently called Humphrey, indicating her desire to
purchase the property and to work something out so as to be able to buy it. Thereafter Larson
contacted Knobel and made the same offer he had made to Humphrey. Knobel said to him: I
have a real estate agent at this point who is negotiating for a deal. You're not offering the total
amount of my request, or my indication of the total price to him. It's pretty much up to
him to make a decision. Such is the conversation as reported by Larson. However, Larson
continued to negotiate directly with Knobel in August and early September.
On September 14, 1957, the 14th day after expiration of the 60-day exclusive listing, the
Larsons and Knobel met and a contract of sale and escrow instructions were executed for the
sale of the property for a total purchase price of $30,000, being $3,000 down, $7,000 in cash
upon the sale of the Larsons' Winnemucca property, and the remainder by assumption of a
bank loan and deed of trust. This was the same offer as had been made by Larson to
Humphrey on August 3, 1957.
Upon Knobel's refusal to pay Humphrey a commission, Humphrey commenced this action,
alleging in his first cause of action a breach of the contract, a second cause of action on
quantum meruit, a third cause of action based on fraud, and a fourth cause of action
against the Larsons for alleged interference with Humphrey's contractual rights under the
contract.
cause of action on quantum meruit, a third cause of action based on fraud, and a fourth cause
of action against the Larsons for alleged interference with Humphrey's contractual rights
under the contract. We are concerned here only with the action for breach of the contract to
pay Humphrey's commission in the sum of $1,500. The trial court denied Humphrey any
relief and found for the defendants. The Larsons are not concerned with this appeal, which is
taken only from the judgment in favor of Knobel.
In Palmtag v. Danielson, 30 Cal.2d 517, 183 P.2d 265, the case to which we shall make
considerable reference later, the court said: The question presented on this appeal is whether
the agreement between the parties was a general contract merely stating an asking price or a
special contract calling for a purchaser willing to pay a net minimum price.
We consider that the question presented to us is precisely the same. Appellant so considers
it, although both the trial court and respondent consider the question in much simpler terms.
The learned trial judge quoted the rule stated in Ramezzano v. Avansino, 44 Nev. 72, 189 P.
681, that before a broker can be said to have earned his commission, he must produce a
buyer within the terms of the agency, when the time is limited, ready, willing and able to
purchase at the price designated by the principal. He then stated: Admittedly this rule is
qualified by the principle that if fraud defeats the broker's efforts the general rule does not
apply. It was therefore incumbent upon the plaintiff to procure a purchaser ready, able and
willing to buy the premises upon the terms set forth and within the exclusive time limit unless
evidence shows that the defendants fraudulently conspired to prevent the broker from
accomplishing his purpose.
1

After distinguishing Ramezzano v. Avansino, supra, in which case fraud was shown, the
learned trial judge concluded: This case can be decided on one of two theories, first that
the broker did not procure a buyer ready, able and willing to buy within the terms of the
contract; or {2) that there is no evidence to show a fraudulent scheme or design to show
the defendants purposely defeated plaintiff's right to a commission."
____________________

1
The contract in Ramezzano v. Avansino was for a net price. It was a special contract. Such was likewise the
case in Close v. Redelius, 67 Nev. 158, 215 P.2d 659.
theories, first that the broker did not procure a buyer ready, able and willing to buy within the
terms of the contract; or (2) that there is no evidence to show a fraudulent scheme or design to
show the defendants purposely defeated plaintiff's right to a commission. The court then
concluded that there was no proof that the defendants acted fraudulently and that the plaintiff
had failed to meet the burden of proof sufficient to take this case out of the general rule.
The respondents analyze the case even more simply. Counsel for respondents in his oral
argument stated: I don't care whether this is a general or special contract. We are dealing
with a contract. That contract was to get $31,500. The broker didn't get it. To earn his
commission the broker must succeed, not fail.
[Headnote 1]
The issue cannot be disposed of as simply as analyzed by either the court or by
respondents. There has grown up over the years a large body of law having to do with
brokers' contracts for the sale of real property. Although the application of the facts to the
hundreds of cases decided under this special branch of the law of contracts cannot be said to
be in agreement, one controlling principle has come to be generally recognized. This principle
is expressed in Palmtag v. Danielson, supra, as follows: Ordinarily,[
2
] the price at which a
broker is authorized to sell property is considered merely an asking price to guide the broker
in his negotiations with prospective purchasers. See Rest. Agency, 447, Comment b. If the
broker procures a purchaser willing to pay a lower price, the owner cannot deprive the broker
of his commission by conducting the final negotiations himself and selling at a lower figure
to the purchaser procured by the broker. See 128 A.L.R. 430; Leicht-Benson Realty Const.
Corp. v. J. D. Stone & Co., 138 Va. 511, 121 S.E. 883, 43 A.L.R. [1100] 1103.
An owner is entitled, however, to make a special contract with the broker whereby the
latter is required to procure a purchaser willing to pay a particular price or meet specific
conditions imposed by the owner.
____________________

2
Emphasis supplied in all instances where appearing in this opinion.
procure a purchaser willing to pay a particular price or meet specific conditions imposed by
the owner. In such cases, if the owner sells the property to a purchaser procured by the broker,
but on different terms from those stated in the contract, the broker is not entitled to a
commission in the absence of bad faith. Backman v. Guadalupe Realty Co., 78 Cal.App. 347,
353, 248 P. 296. In brokers' net contracts, a fixed net amount must be paid to the owner and
the broker's compensation is limited to the excess of the payment by the purchaser over the
net amount specified. Haigler v. Donnelly, 18 Cal.2d 674, 678, 117 P.2d 331.
The A.L.R. note cited by the California Supreme Court is but a continuation and extension
of a number of extended A.L.R. and L.R.A. annotations giving many examples in which the
various courts concluded in effect that the contract in question was either a general contract
or a special contract.
It must be said in justice to the learned trial judge that his opinion and judgment denying
the broker a recovery when he had failed to produce a ready, able, and willing buyer for the
price set and within the time provided in the brokerage contract, in the absence of fraud or
bad faith, finds support in a great many cases. On the other hand, where the broker has been
the procuring cause (a term apparently used interchangeably with efficient cause and
proximate cause), although the transaction was actually closed by the owner directly with
the buyer at a price less (sometimes the same, sometimes more) than the sum indicated in the
brokerage contract and within a reasonable time after the expiration term of the contract,
although without fraud or bad faith, recovery by the broker has been permitted. We have
concluded that the latter rule is best supported on reason and the great weight of authority.
This conclusion on our part is, we think, based upon a better appreciation of those
principles which many cases have placed foremost as resulting in a fair and just determination
under the facts of each case. That the determination is a difficult one cannot be doubted. As
was recently said in an article appearing in 8 Ark.L.
Rev. 156, A further dissection of the body of the law unveils a subject so fraught with
conflict and enigmatic confusion as nearly to defy analysis. The author then states that the
chaos is only a manifestation of an attempt by the courts to maintain a delicate balance among
the elements of cause and effect, public policy, a requirement of good faith, the danger of
unjust forfeiture, and the specific provisions of brokerage contracts. And in Havens v. Irvine,
61 Wyo. 309, 157 P.2d 570, it was stated: The cases on the right of a broker to recover a
commission are very numerous, and seemingly confusing, even in cases from the same state.
It is significant that the subject of brokers' contracts is not included in the texts and
treatises as a part of the law of contracts. It is given a separate title and separate treatment. It
would be an easy disposition of the vast majority of appeals in cases involving brokers'
contracts, to set against the precise terms of the contract the extent of the broker's
performance and to conclude, in the absence of fraud, that the performance as shown by the
facts did or did not meet the requirements of the contractquod erat demonstrandum. The
cases however do not admit of such arithmetical or syllogistic conclusion. It was said in the
early case of Plant v. Thompson, 42 Kan. 664, 22 P. 726, citing numerous earlier cases, that it
was sufficient to entitle a broker to compensation that the sale was effected through his
agency as the procuring cause, and that if his communications with the purchaser were the
cause of bringing him and the owner together and the sale resulted in consequence thereof,
the broker was entitled to recover, although the sale resulted from negotiations between the
seller and the buyer. Such holdings have led some authors to characterize this theory as the
procuring cause theory, under which they have virtually lifted it out of the strict law of
contract.
Of course, where actual fraud appeared on the part of the owner, precise compliance by the
broker with the terms of his contract was not required and recovery was permitted. The
difficulty arose where no fraud existed on the owner's part and where justice was nonetheless
defeated if the broker was deprived of the profits of his labor in producing a ready, able,
and willing buyer under terms which the owner eventually accepted through his own
direct negotiations with the buyer.
defeated if the broker was deprived of the profits of his labor in producing a ready, able, and
willing buyer under terms which the owner eventually accepted through his own direct
negotiations with the buyer. Thus it appears that a new body of law grew up dealing with
brokers' contracts. It was recognized that in many if not most cases the price specified in the
broker's contract was simply a suggested or asking price. The fact that the sale is made for a
lesser price, satisfactory to the owner, than that specified in the broker's contract, does not
affect the broker's right to a commission. In Smith v. Anderson, 2 Ida. 537, 21 P. 412, the
owner sold for $6,000 against the $8,000 price given to the agent. In Warren v. Van Der
Velde, 193 Mich. 164, 159 N.W. 137, the owner sold for $5,500 against the price of $5,700
given the agent. In Henschel v. Sutton, 120 Kan. 260, 242 P. 1024, the owner sold for
$27,000 against the price of $33,750 given the agent. In Studt v. Leiweke, 100 S.W.2d 30
(Mo.App. 1937), the owner sold for $40 an acre against the price of $75 an acre given the
agent.
The author of the note in 8 Ark.L.Rev., supra, says at p. 61: If no specific amount is set,
or if the price listed is considered, as is usual, to be merely an asking price and not
determinative of the broker's commission, then, if other conditions are such as to warrant
awarding the broker his commission, the prevailing view apparently advocates recovery,
although the sale is made on considerably less advantageous terms.
Such contracts then became known to the courts as general contracts under which a
broker was entitled to recover an agreed percentage commission if he produced a willing
buyer at a lower price which proved later acceptable to the seller, and at which the seller
closed directly with the buyer. Such contracts were recognized as distinct from what became
known as special contracts
3
under which the owner specified a minimum or net price to
himself.
____________________

3
In Ramezzano v. Avansino, 44 Nev. 72, 189 P.681, and in Close v. Redelius, 67 Nev. 158, 215 P.2d 659,
the opinions of this court contributed to the recognition of special contracts, characterized by the fixing of a
net price in the broker's contract. And where the fraud of the owner prevented consummation of the sale by the
broker, the full commission was allowed. Fraud was not asserted by
net price to himself. In the latter case the broker earned no commission unless he procured a
buyer ready, able, and willing to pay a price that would provide the net or minimum specified
by the seller.
This then is the law which recognizes the two distinct types of brokers' contracts, the
nature of the distinction, and the respective rights and obligations of the parties, depending
upon the type or class into which the contract falls. We have the general contract, recognized
as specifying merely the suggested or asking price; and the special contract fixing a net or
minimum return to the owner.
It has been suggested that the contract in question is ambiguous in view of the
development of this body of law governing brokers' agreements and that the rule should be
applied construing the contract strictly against Humphrey, who drew it, and liberally in favor
of Knobel. However, we find no necessity of applying this rule which, according to a
statement in 3 Corbin, Contracts, sec. 559 (1960 ed.), is to be applied only as a last resort. It
should not be applied until other rules of interpretation have been exhausted; * * * [and] is
chiefly a rule of public policy, generally favoring the under dog. In any event, the
construction would be against Knobel if the contract in question was considered a special
contract. William E. Wallace, Assistant Professor of Law, Washington University, the author
of an article in 13 Vanderbilt L.Rev. 675, 692, says: While construction of a listing
agreement is normally against the broker, such results from the fact that usually it is he who
has authored the agreement. Where there is a net' listing, however, the agreement will
normally have resulted from the landowner's insistence. Thus, he will be the maker' against
whom construction generally runs.
____________________
the broker in Wiechmann v. Hale, 76 Nev. 492, 358 P.2d 113. It too involved a special contract. The broker had
produced a buyer ready, able, and willing to close at the fixed net price, but the owner concluded the sale with
the buyer and refused to pay the commission. The only significance of that case here is the court's recognition of
the conflict in the authorities, and its adherence to the theory that the broker was entitled to recover as the
procuring cause.
[Headnotes 2]
We have no difficulty in placing the contract here under consideration within the class of
general contracts. The price of $31,500 fixed by the owner may then be considered, as is
usual, the suggested or asking price. Under the contract the owner covenanted: If a sale is
effected during the period of above agency, I agree to pay Frank Humphrey 5% of the gross
selling price as commission for agents' services. The contract contained no provision for
terms or amount of down payment. When Larson with Humphrey's consent and at his
suggestion contacted Knobel and made the same offer he had made to Humphrey, Knobel
told him: I have a real estate agent at this point who is negotiating for a deal. You're not
offering the total amount of my request or, my indication of the total price to him. Larson
testified that Knobel said: It's pretty much up to him to make a decisionto Mr. Humphrey
to make a decision in this case.
The conversation thus quoted is important in two respects. It more strongly identifies the
contract as a general contract and the price of $31,500 as the suggested or asking price. It
further indicates Knobel's point of view or purpose that during the specific 60-day term
provided in the contract, negotiations must go through Humphrey, with the thought that after
the termination of the contract Knobel would be free to make a deal in his own behalf and
thus avoid the payment of a commission. On the 14th day after the termination of the contract
under its terms, September 14, 1957, Knobel closed directly with Larson on the precise terms
that Larson had offered to Humphrey and which Humphrey had communicated to Knobel.
But before so closing, Mrs. Knobel went to Humphrey's office to obtain a copy of the contract
and to make sure that the 60-day term therein recited had expired. As aforesaid, Larson had
continued to negotiate directly with Knobel during August and the early part of September,
1957.
With reference to the fact that Knobel did not close the contract with Larson until the 14th
day after the expiration of the term fixed in the contract, the same principles appear to us
to apply as in the cases where the owner terminates a contract containing no restrictions
as to time.
expiration of the term fixed in the contract, the same principles appear to us to apply as in the
cases where the owner terminates a contract containing no restrictions as to time. The cases
seem to agree that where the negotiations are still going on, the contract will remain effective
for a reasonable time after the term of its expiration. Southwick v. Swavienski, 114 App.Div.
681, 99 N.Y.S. 1079 (twenty days after expiration of contract); Jaeger v. Glover, 89 Minn.
490, 95 N.W. 311 (one month after expiration of contract); Kalas v. MacMahon, 36 Ala.App.
238, 54 So.2d 322 (three months after expiration of contract); see Axsom v. Thompson, 239
Mo.App. 732, 197 S.W.2d 326. Some of these cases based their ruling on waiver where, as
here, the negotiations had continued directly between the owner and the purchaser produced
by the broker after the time limited by the contract had expired. See also Simplot Co. v. Rupe
& Son, 78 Nev. 111, 369 P.2d 445.
Before turning further to Palmtag v. Danielson, certain important features must be
considered. Although the trial court made no definite determination whether the contract in
question was a general or special contract, its refusal to adjudge the broker entitled to a
commission was in effect to construe the contract as one recognized in law as a special
contract. In doing so, it made no factual determination in support of such construction. It did
not find that the words or actions of the parties compelled an inference that it was a special
contract, or that it was their intention that $31,500 was a minimum price or that $30,000 was
a net price. It did not find that Humphrey did not procure the purchaser or that, having first
procured the purchaser, Humphrey had abandoned the project. It did not find that the price of
$31,500, with $3,000 down, $7,000 on Larson's sale of his Winnemucca home, and the
balance by way of note secured by deed of trust, at which Knobel closed with Larson, was
different in any respect from Larson's original offer to Humphrey. It found simply that
Humphrey had not within his 60-day contract produced a purchaser at $31,500, and thus, in
absence of fraud on Knobel's part, he could not recover a commission.
absence of fraud on Knobel's part, he could not recover a commission. The court found that
there was no evidence of fraud.
In Palmtag v. Danielson, supra, the listing was contained in a letter which recited: I have
a price of $40,000 on the property and if you should arrange the sale I will pay you 5%
commission or a net to me of $38,000. Mr. Justice Traynor, speaking for the California
Supreme Court, said: If the phrase beginning or a net to me * * *' is excluded, the letter
clearly states nothing more than an asking price [for] the guidance of the broker. The addition
of or a net to me of $38,000' is illustrative of the amount that defendant would receive if the
broker sold the property at $40,000. The $38,000 figure has no independent significance, but
is merely the amount remaining after the commission is subtracted from the proposed sale
price. Interpreted in this manner, the phrase may be explained without doing violence to the
remaining language in the contract. If the contract were construed to require $38,000 net to
defendant, the provision for a 5% commission would have little meaning. We may take the
California Supreme Court at its word, then, and eliminate the clause or a net to me of
$38,000 as merely an arithmetical calculation or illustration of the subtraction from the gross
of 5% commission. It becomes then, a fortiori, authority for the construction of the $31,500
price in the present case as a suggested or asking price. Respondent's covenant to pay 5% of
the gross selling price as commission for agent's services further confirms this.
Respondent attempts to distinguish the Palmtag case by a quotation therefrom in which the
court recites the conditions under which the broker is not entitled to a commission in the
absence of bad faith, but overlooks the fact that such recital is confined to a special
contract, theretofore defined as one in which a minimum price or a net price is clearly
specified, a situation which the court held did not exist. It is also sought to distinguish the
Palmtag case on the ground that the court in that case referred to factual conditions indicating
that the $40,000 price fixed in the letter was simply a suggested or asking price.
simply a suggested or asking price. We do not think that this weakens Palmtag as an
authority. The court below in the instant case made no findings of fact to support its analysis
or construction of the present contract, such as a finding that the parties, by their actions and
statements, had themselves made their own construction. It is further suggested that here
Knobel in accepting Larson's $30,000 offer received that sum net and that this fact indicated
that he would not have accepted $30,000 if it had been subject to a 5% discount, which would
have netted him only $28,500. This furnishes no helpful evidence in construing the contract;
Knobel accepted the precise offer first made to him through Humphrey and again made to
him by Larson, after first rejecting it. The only difference was that he avoided the payment of
Humphrey's commission. On the strength of Palmtag v. Danielson, supra, we are of the
opinion that the judgment must be reversed and the commission awarded.
Just as the overreaching of real estate brokers by owners was apparently what gave rise to
the recognized rule which we are following in this case, it is likewise important that unwary
owners dealing with experienced real estate brokers should in turn have a means of
protection. This presents no difficulty. In the present case, for example, there was written in
by longhand the following: This agreement excludes Dr. Callister as possible buyer as he has
already been approached by Mr. Knobel. Mr. Knobel could just as simply have protected
himself (if he thought he could obtain a broker to work for him on such basis) by noting
simply: No commission unless I get $30,000 net.
Reversed and remanded with directions to enter judgment for appellant for $1,500, with
interest from September 14, 1957.
McNamee, J., and Wines, D. J., concur.
Thompson, J., being disqualified, the Governor designated Honorable Taylor H. Wines,
Judge of the Fourth Judicial District, to sit in his stead.
____________
78 Nev. 150, 150 (1962) Colby v. Colby
SARAH P. COLBY, Appellant, v. BENJAMIN
COLBY, Respondent.
No. 4440
March 27, 1962 369 P.2d 1019
Appeal from summary judgment of the Eighth Judicial District Court, Clark County;
David Zenoff, Judge.
Action by husband to set aside a Nevada default divorce decree obtained by wife prior to
the time that husband obtained a divorce decree in Maryland. The lower court granted
summary judgment in favor of the husband, and the wife appealed. The Supreme Court,
Thompson, J., held that full faith and credit clause of federal constitution did not require that
Nevada recognize Maryland divorce as the binding determination of the parties' marital status
in Nevada.
Judgment reversed.
Jones Wiener & Jones and L. O. Hawkins, of Las Vegas, for Appellant.
Robert E. Jones and Morse & Graves, of Las Vegas, for Respondent.
1. Divorce.
Alleged fraud of wife in bringing action for divorce in Nevada without possessing required bona fide
intent as to domicile to entitle her to maintain action for divorce in Nevada against her husband, who
voluntarily elected to refrain from entering an appearance, was intrinsic and not extrinsic and husband
could not five years later maintain an independent action to set aside divorce judgment for fraud upon the
court. NRCP 60(b).
2. Divorce.
A divorce decree may be annulled by an independent proceeding for that purpose upon proof of extrinsic
fraud. NRCP 60(b).
3. Divorce.
Nevada court had jurisdiction to enter divorce decree against husband who was served with process but
failed to appear, and subsequent Maryland divorce decree obtained by husband did not have effect of
rendering Nevada divorce decree void and did not entitle husband to maintain an independent action to set
aside Nevada decree on ground that it was void. NRCP 60(b).
78 Nev. 150, 151 (1962) Colby v. Colby
4. Declaratory Judgment.
Where Nevada divorce decree obtained by wife was not appealed from by husband, who subsequently
obtained a divorce decree in his favor in Maryland, there was no justiciable issue as to the parties' marital
status in Nevada and husband could not obtain a declaration of his marital status in Nevada under the
Uniform Declaratory Judgments Act. NRS 30.010-30.160, 30.030.
5. Divorce.
Full faith and credit clause of federal constitution did not require that Nevada recognize Maryland
divorce as the binding determination of the parties' marital status in Nevada in which wife had previously
obtained a default divorce decree in her favor. U.S.C.A. Const. art. 4, sec. 1.
OPINION
Sarah P. Colby, appellant, and Benjamin Colby, respondent, will be hereafter referred to as
Sarah and Benjamin.
To understand the issues presented for our determination, mention must first be made of
the history of litigation between the parties regarding their marital status. On June 30, 1955,
Sarah was granted a divorce from Benjamin by the Eighth Judicial District Court of Nevada.
Benjamin did not appear therein. He was served with process in Washington, D. C. by
personal service outside the state, in accordance with NRCP 4(e) (2). His default was duly
entered. On November 6, 1957, Benjamin was granted a divorce a mensa et thoro (separation
from bed and board) from Sarah, by the Circuit Court of Maryland. In that action, Sarah
appeared personally, pleading, among other matters, the prior Nevada default decree as a
defense. In granting Benjamin relief, the Maryland court declared the Nevada decree to be
null, void and of no effect in law or in equity. Sarah appealed, and the Maryland Court of
Appeals on May 20, 1958 affirmed the decree of the Circuit Court. Colby v. Colby, 217 Md.
35, 141 A.2d 506.
Finding Sarah in Florida, Benjamin then brought suit in the Circuit Court of Florida,
seeking declaratory relief as to his marital status. Sarah moved to dismiss the complaint
therein, which motion was granted.
78 Nev. 150, 152 (1962) Colby v. Colby
the complaint therein, which motion was granted. Benjamin appealed. On May 20, 1960, the
Florida District Court of Appeal affirmed the ruling of the lower court. Colby v. Colby, 120
So.2d 797 (Fla. 1960). Among other things it held that the declaratory judgment procedure
was not available to adjudicate rights of parties who had previously obtained a determination
of those rights; that no justiciable controversy existed between them.
On February 2, 1960, after the ruling of the Florida Circuit Court, but before determination
by the Florida appellate court, the present action was commenced by Benjamin in the Eighth
Judicial District Court of Nevada. The complaint is labeled a complaint to vacate and set
aside a decree of divorce. The relief requested is that the Nevada default decree of June 30,
1955 be vacated and set aside. The predicate for his complaint is that the Maryland decree of
November 6, 1957, granting him a divorce a mensa et thoro, and declaring void the prior
Nevada default decree, was entered by a court of competent jurisdiction, with both parties
before it, and must be given full faith and credit by the courts of Nevada. Sarah moved to
dismiss the complaint, asserting that it failed to state a claim upon which relief could be
granted. That motion was denied by the court below, whereupon Sarah answered, denying the
material averments of the complaint. Issue being joined, Benjamin then moved for summary
judgment, pursuant to NRCP 56. The lower court granted summary judgment. It found that
there were no genuine issues of fact to be litigated; that the Maryland decree was entitled to
full faith and credit by the courts of Nevada; that Benjamin was entitled to have his marital
status in Nevada clarified and determined, and had brought a proper proceeding for such
relief. Accordingly, it ordered that the Nevada default decree granted Sarah on June 30, 1955
be and the same is hereby declared null and void, vacated, set aside and held for naught,
having no force or effect in law or equity. The present appeal is from the summary judgment
thus entered.
78 Nev. 150, 153 (1962) Colby v. Colby
Five errors are assigned.
1
We believe that all of them are necessarily embraced within the
single issue: Did Benjamin state a claim for relief? In our view, no claim for relief was stated,
nor was it possible to do so under the circumstances here presented. In reaching this
conclusion, we are compelled to resolve the following questions: First, is this action the
independent action * * * to set aside a judgment for fraud upon the court, contemplated by
NRCP 60(b)? Second, does the Uniform Declaratory Judgments Act, NRS 30.010-30.160,
provide a procedure by which Benjamin could obtain a declaration of his marital status in
Nevada under the circumstances presented? Third, was this action otherwise properly
instituted, and a claim for relief stated because of the full faith and credit clause of the United
States Constitution? We turn to discuss these questions.
[Headnotes 1, 2]
1. This action is not authorized by NRCP 60(b). The present independent action was
commenced almost five years after entry of the Nevada default decree. It sought to set aside
such decree. The lower court granted the requested relief. This court has, for many years,
recognized that a decree of divorce may be annulled by an independent proceeding for that
purpose upon proof of extrinsic fraud. Confer v. District Court, 49 Nev. 18, 234 P. 688, 236
P. 1097; Chamblin v. Chamblin, 55 Nev. 146, 27 P.2d 1061; Calvert v. Calvert, 61 Nev. 168,
171, 122 P.2d 426, 427; Lauer v. District Court, 62 Nev. 78, 140 P.2d 953; Mazour v.
Mazour, 64 Nev. 245, 180 P.2d 103; Murphy v. Murphy, 65 Nev. 264, 271, 193 P.2d 850,
854; Villalon v. Bowen, 70 Nev. 456, 273 P.2d 409. In Murphy v. Murphy, supra, this court
said: Extrinsic fraud has been held to exist when the unsuccessful party is kept away from
the court by a false promise of compromise, or such conduct as prevents a real trial upon the
issues involved, or any other act or omission which procures the absence of the
unsuccessful party at the trial.
____________________

1
It is claimed that the lower court erred in holding: (a) that the complaint stated a claim for relief; (b) that not
factual issues remained; (c) that the alleged fraud was the basis for an independent action to set aside a Nevada
decree; (d) that the full faith and credit clause applies to this case; (e) that a justiciable controversy was
presented for determination.
78 Nev. 150, 154 (1962) Colby v. Colby
the issues involved, or any other act or omission which procures the absence of the
unsuccessful party at the trial. Further, it consists of fraud by the other party to the suit, which
prevents the losing party either from knowing about his rights or defenses, or from having a
fair opportunity of presenting them upon the trial. Conversely, in Calvert v. Calvert, supra,
we described intrinsic fraud in the following language: A distinguishing feature appearing in
the cases as to when fraud will justify the vacation of a decree is whether or not the wife has
had the opportunity of consulting counsel of her own choosing, and the opportunity afforded
to present the matters complained of to independent counsel and to the court, so that
protection could be afforded. Such an opportunity stamps the fraud as intrinsic. (Emphasis
supplied.)
The fraud involved in the instant case is simply the finding by the Maryland court in a
later action, that Sarah did not possess the required bona fide intent as to domicil when she
testified before the Nevada court, and thereby committed a fraud upon it. Nothing appears
from the record before us tending to establish that Benjamin was prevented by Sarah's
conduct from a fair opportunity to assert his rights in or present his defenses to the Nevada
action. It is apparent that he voluntarily elected to refrain from entering an appearance therein.
Clearly the fraud here contended for is intrinsic; it is not extrinsic.
Insofar as the question of fraud is concerned, we do not find any solid basis for distinction
between the case at bar and the cases of Confer v. District Court, supra, and Chamblin v.
Chamblin, supra. In Confer v. District Court, supra, the husband obtained a Nevada divorce.
The wife appeared in the action by answer and cross-complaint. After trial, the court entered a
decree for the husband. Almost two years later the former wife commenced an independent
suit, seeking to set aside the divorce decree, claiming that the court was without jurisdiction
because the plaintiff's testimony therein was false in that he never intended to make Nevada
his bona fide home and domicil. This court found that the alleged fraud was not extrinsic in
nature, and dismissed the proceeding.
78 Nev. 150, 155 (1962) Colby v. Colby
found that the alleged fraud was not extrinsic in nature, and dismissed the proceeding. In
Chamblin v. Chamblin, supra, a former wife brought an independent action to set aside her
former husband's decree, claiming that it was obtained on perjured testimony. This court held
that the complainant had been afforded every opportunity to appear and defend the prior suit;
that the claimed fraud was not extrinsic in nature, and that a cause of action was not,
therefore, asserted. We hold that the complaint herein fails to state a claim for relief based
upon extrinsic fraud.
[Headnote 3]
Notwithstanding, Benjamin urges that an independent action to set aside the prior default
decree is proper under NRCP 60(b) because such prior decree is void. His argument in this
regard is that the Maryland decree had the effect of rendering the prior Nevada decree void.
We find no merit in this argument. It is true that in La Potin v. La Potin, 75 Nev. 264, 339
P.2d 123, we held that an independent action was proper, under the mentioned rule, to set
aside a prior decree, where the record established that the defendant in the prior action was
never served with process; the court was, in fact, without jurisdiction, and the decree was
void. See also: Perry v. Seventh Judicial District Court, 42 Nev. 284, 174 P. 1058. However,
the instant case is totally different. The record before us shows that the Nevada court had
jurisdiction to enter the decree. Procedural due process was accorded the defendant therein.
The decree was not void on the face of the record and, for the reasons heretofore mentioned,
extrinsic fraud has not been shown.
We conclude, therefore, that the present action is not the independent action * * * to set
aside a judgment for fraud upon the court, contemplated by NRCP 60(b), and that a claim
for relief thereunder is not presented.
[Headnote 4]
2. This action is not authorized by the Uniform Declaratory Judgments Act. The
complaint herein does not specifically request relief under the Uniform Declaratory
Judgments Act.
78 Nev. 150, 156 (1962) Colby v. Colby
not specifically request relief under the Uniform Declaratory Judgments Act. It does,
however, contain the charge that the marital status of the parties is uncertain. The judgment
entered expresses the lower court's view that Benjamin is entitled to have his marital rights
and status clarified and determined. The briefs on appeal mentioned declaratory relief, as did
counsel in oral argument. Sarah, the respondent, does not contend that we should refuse to
consider said act because of the characterization of the complaint as one to vacate and set
aside a decree of divorce. Rather, she has assumed that we will consider it. Therefore, we
believe ourselves compelled to determine whether the present action is authorized by that act.
NRS 30.010-30.160.
NRS 30.030 provides in part: * * *; and such declaration shall have the force and effect
of a final judgment or decree. The final decree determining the marital status of Sarah and
Benjamin in Nevada was entered by the district court on June 30, 1955. In Kress v. Corey, 65
Nev. 1, 26, 189 P.2d 352, 364, this court quoted with approval a statement from Borchard,
Declaratory Judgments, wherein four requisite precedent facts for declaratory relief are
summarized. One of them is that the issue involved in the controversy must be ripe for
judicial determination. The question concerning marital status was ripe for determination
by the Nevada court in 1955, and was then determined. No appeal was taken from that
determination. The court was acting within its jurisdiction when it made it. It is not subject to
attack upon the claim of extrinsic fraud, for the reasons heretofore given. A justiciable issue
as to the parties' marital status in Nevada does not now exist. Colby v. Colby, 120 So.2d 797
(Fla. 1960); Garvin v. Garvin, 306 N.Y. 118, 116 N.E.2d 73.
We conclude that, under the circumstances of this case, a claim for relief under the
Uniform Declaratory Judgments Act is not stated.
[Headnote 5]
3. Full Faith and Credit. The primary thrust of respondent Benjamin's argument in
support of the judgment entered below rests upon the full faith and credit clause of the
United States Constitution.
78 Nev. 150, 157 (1962) Colby v. Colby
respondent Benjamin's argument in support of the judgment entered below rests upon the full
faith and credit clause of the United States Constitution. Because of that clause he insists that
Nevada must recognize the Maryland decree as the binding determination of the parties'
marital status in Nevada. Sutton v. Leib, 342 U.S. 402, 72 S.Ct. 398, 96 L.Ed. 448, is cited as
supporting authority. We do not consider that case to be in point. In Sutton v. Leib, supra, the
marital status of the former Mrs. Leib was in issue. She was the plaintiff. Her marital status
had never been before a Nevada court for determination. She had never been a party to a
judicial proceeding in Nevada. She had married a Mr. Henzel after he had obtained a Nevada
default divorce. That marriage was later annulled and declared void by a New York court
with personal jurisdiction over both parties. In holding that the Illinois federal court must give
full faith and credit to the New York annulment decree (and stating, by dictum, that Nevada
would have to do the same), the Supreme Court did not indicate that Mr. Henzel's Nevada
divorce was not valid in Nevada. That question was not presented for decision. It is presented
in the case at bar.
Analysis demands the conclusion that Benjamin does not here ask us to merely accord full
faith and credit to the Maryland decree. Instead, we are asked to give it greater credit and
respect than the prior decree of our own state lawfully entered. Full faith and credit does not
require, nor does it contemplate, such action from us. Perry v. Perry, 51 Wash.2d 358, 318
P.2d 968; Hammell v. Britton, 19 Cal.2d 72, 119 P.2d 333; Martin Bros. Box Co. v. Fritz,
228 Iowa 482, 292 N.W. 143.
The judicial status of a prior default decree in the state that decreed it, has not been
definitely determined by the United States Supreme Court. However, in Williams v. North
Carolina, 325 U.S. 226, 231, 239, 65 S.Ct. 1092, 1096, 89 L.Ed. 1577, 1582, 1587, the
majority opinion, written by Mr. Justice Frankfurter, appears to assume the validity of the
prior Nevada default decree in Nevada, for he wrote, inter alia: If a finding by the Court of
one State that domicil in another State has been abandoned were conclusive upon the old
domiciliary State, the policy of each State in matters of most intimate concern could be
subverted by the policy of every other State.
78 Nev. 150, 158 (1962) Colby v. Colby
in another State has been abandoned were conclusive upon the old domiciliary State, the
policy of each State in matters of most intimate concern could be subverted by the policy of
every other State. This Court has long ago denied the existence of such destructive power.
The issue has a far reach. For domicil is the foundation of probate jurisdiction precisely as it
is that of divorce. Mr. Justice Murphy, in his concurring opinion in Williams v. North
Carolina, supra, stated: The State of Nevada has unquestioned authority, consistent with
procedural due process, to grant divorces on whatever basis it sees fit to all who meet its
statutory requirements. It is entitled, moreover, to give its divorce decrees absolute and
binding finality within the confines of its borders.
Mr. Justice Rutledge and Mr. Justice Black, in dissenting opinions in that case, each called
attention to the fact that the majority opinion therein does not hold that the Nevada judgment
is invalid in Nevada.
We hold, therefore, that the default decree of divorce granted Sarah by the Nevada district
court in 1955 is a valid, final and conclusive determination of the marital status of Sarah and
Benjamin in Nevada; that a claim for relief is not asserted under the full faith and credit
clause of the United States Constitution.
Reversed.
____________
78 Nev. 159, 159 (1962) Terrible v. State
FRANK TERRIBLE, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 4450
March 28,1962 370 P.2d 51
Appeal from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
The defendant was convicted in the trial court of lewdness with a minor, and he appealed.
The Supreme Court, Badt, C. J., held that testimony given by witness, under age of ten, after
she was sworn established her competency as a witness.
Affirmed.
Jones, Wiener & Jones, of Las Vegas, for Appellant.
Roger D. Foley, Attorney General, John F. Mendoza, District Attorney, Clark County,
Charles L. Garner, Deputy District Attorney, for Respondent.
1. Witnesses.
Testimony given by witness under age of ten, after she was sworn, established her competency as a
witness. NRS 48.030.
2. Witnesses.
Testimony given by six and one half year old witness after trial court determined that she was competent
to be witness could be considered in determining whether she was competent to testify. NRS 48.030.
OPINION
Appellant was held to answer in the district court by order of the committing magistrate
following a preliminary hearing on the charge of lewdness with a minor. The present appeal
is from denial by the district court of his petition for a writ of habeas corpus.
The sole question for our determination is whether the complaining witness, a minor girl
of the age of six and one-half years, was a competent witness. If she was not, a reversal must
follow. If she was, the order denying the writ must be affirmed. Both parties concede that
such is the situation.
that such is the situation. We have concluded that she was a competent witness.
NRS 48.030 reads in part: The following persons cannot be witnesses:
* * * * *

2. Children under 10 years of age who appear incapable of receiving just impressions of
the facts respecting which they are examined, or of relating them truly.
The child was given a voir dire examination to test her qualifications as a witness under
the statute, and was then permitted to testify to the facts before the magistrate. Appellant
centers his attack on the sufficiency of the child's qualifications as shown by the
pre-examination, and insists that such showing cannot be reinforced by the testimony given
by her after she was sworn as a witness.
[Headnotes 1, 2]
Although numerous cases have been cited in which the preliminary examination of the
witness was held sufficient to prove her competency under a showing even less convincing, in
our opinion, than that in the present case (see Yarbrough v. State, 202 Miss. 820, 32 So.2d
436; People v. Carpenter, 3 Cal.App.2d 746, 40 P.2d 524; People v. Loignon, 160 Cal.App.2d
412, 325 P.2d 541), we do not find it necessary to review such showing because it is clear to
us that the testimony given by the child after she was sworn amply supplies proof of her
competency as a witness. That it is proper to consider such testimony clearly appears from the
holding in People v. Lamb, 121 Cal.App.2d 838, 264 P.2d 126, where the court said: In
determining whether a child sufficiently can recollect and narrate, the appellate court is not
limited by the voir dire examination, but may examine the subsequently given testimony.
Subsequently given testimony, if clear, relevant and coherent, may be used to support the
ruling on qualifications. People v. Walker, 112 Cal.App. 146, 296 P. 692; People v. Arcia, 85
Cal.App.2d 127, 192 P.2d 31; People v. Denton, 78 Cal.App.2d 540, 178 P.2d 524; People v.
Gibbons, 83 Cal.App.2d 504, 189 P.2d 37. Accord: People v. Pike, 183 Cal.App.2d 729, 7
Cal.Rptr.
188; People v. Smith, 162 Cal.App.2d 66, 327 P.2d 594; People v. Burton, Cal.App., 6
Cal.Rptr. 124. In People v. Lamb, supra, several children under the age of 10 years were
called as witnesses. With reference to each child separately, the court held that her testimony
after being sworn could be considered in addition to what she said on voir dire examination,
to show her competency under the statute.
In the same case the court expressed the well-nigh universal rule: The trial judge, because
of his ability to see how the child acts on the stand, possesses considerable discretion in
determining whether a child under ten possesses these qualifications. [Citing cases] Accord:
People v. Smith, supra; People v. Loignon, supra; People v. Burton, supra; People v. Delaney,
52 Cal.App. 765, 199 P. 896. To like effect see Wigmore, Evidence, sec. 509.
All the cases cited above and all other cases cited by the parties having to do with the
propriety of considering the actual testimony of the child after being sworn, as well as the
answers to the questions on voir dire, involved jury trials. A fortiori, then, such rule should
apply in a hearing before a magistrate, where no jury is exposed to possible prejudice.
McCormick, Evidence, sec. 62, p. 140.
Affirmed.
____________
78 Nev. 162, 162 (1962) Melahn v. Melahn
JOHN A. MELAHN, Appellant, v. FRANCES
C. MELAHN, Respondent.
No. 4439
April 2, 1962 370 P.2d 213
Appeal from the Second Judicial District Court, Washoe County, A. J. Maestretti, Judge.
Action by wife for arrearages in child support payments. From an adverse judgment of the
lower court, the husband appealed. The Supreme Court, McNamee, J., held that under divorce
decree requiring husband to pay medical bills for children only if they were supported by
affidavit of verification and were from doctors and dentists who were members of specified
associations, and depriving husband of visitation rights if he failed to make payments but
relieving him from making support payments if wife refused him his visitation rights,
husband was within his rights in refusing payment of unverified medical bills and wife had no
right to refuse husband visitation privileges, and wife, who had provided support for children,
was not entitled to a judgment for arrearages in child support payments.
Reversed.
Guild, Busey & Guild, and Howard L. Cunningham, of Reno, for Appellant.
Vargas, Dillon & Bartlett, of Reno, for Respondent.
1. Divorce.
Under divorce decree requiring husband to pay medical bills for children only if they were supported by
affidavit of verification and were from doctors and dentists who were members of specified associations,
and depriving husband of visitation rights if he failed to make payments but relieving him from making
support payments if wife refused him his visitation rights, husband was within his rights in refusing
payment of unverified medical bills and wife had no right to refuse husband visitation privileges, and wife,
who had provided support for children, was not entitled to arrearages in child support payments. NRS
125.180.
2. Divorce.
Husband's payment of medical bills which were not verified as required by divorce decree did not
constitute an implied waiver when husband had written wife notifying her that he was
willing to pay normal medical bills and insisting that wife in the future send only
verified bills.
implied waiver when husband had written wife notifying her that he was willing to pay normal medical bills
and insisting that wife in the future send only verified bills.
3. Estoppel.
In order to establish a waiver, intention to waive must clearly appear, and party relying on the waiver
must have been misled to his prejudice.
OPINION
[Headnote 1]
The parties hereto obtained a decree of divorce in Reno on May 8, 1948. Said decree was
modified in April 1949 and May 1951. The 1951 modification approved an agreement of the
parties entered into subsequent to the 1949 amendment and ordered the parties each to abide
thereby and to perform their respective obligations thereunder. Said agreement, as so
approved, awarded custody of the children to the respondent and ordered the appellant to pay
$40 per week for their support. It also provided that if the respondent finds it necessary or
advisable to incur expense for medicines, or for medical, hospital or dental service for said
minor children, or either of them, that she will employ only doctors who are members of the
American Medical Association, and only dentists who are members of the American Dental
Association. When so employed, the doctor, dentist or hospital, shall render an itemized bill
for services performed; and the doctor, dentist, or proper official of the hospital shall attach
an affidavit verifying said bills. These shall be sent directly to the [appellant], who will be
required to immediately pay the same.
If it is essential for the [respondent] to advance money to pay any such bills, upon receipt
of the receipted bill, properly sworn to as above provided, the [appellant] shall, within ten
(10) days after receipt of such bill, forthwith repay the [respondent] the sum, or sums,
involved in the payments made by her.
The agreement gave certain visitation rights to the appellant, but stated that if he at any
time failed to make payments as provided in the agreement he would have no right to visit
the children or have said children visit him until all arrearages were paid.
make payments as provided in the agreement he would have no right to visit the children or
have said children visit him until all arrearages were paid. It further provided that if he made
all payments required of him, and the respondent refused him his visitation rights (including
the right to have the children with him at specified periods), then his obligation to pay
anything to the respondent for support of the children would terminate during the period of
such refusal.
Thereafter, the respondent submitted to the husband certain bills for the children's medical
and dental expenses, none of which was itemized or contained an affidavit of any kind.
Furthermore, the bills from doctors and dentists submitted to the appellant gave no indication
whether the doctors or dentists were members of the associations specified in the agreement.
The husband refused to pay the bills.
The wife refused visitation rights.
The husband refused to pay support for the children.
Thereafter on March 31, 1960, pursuant to NRS 125.180, the wife filed a motion to have
judgment entered against the husband for the sum of $1,501 she claimed to be due her for
child support and medical expenses under the decree of divorce as modified in 1951. The
lower court, on February 17, 1961, gave her judgment for these amounts and, in addition, for
child support and medical expenses which the wife claimed accrued after March 31, 1960 and
up to the time of judgment.
The agreement of the parties, which was approved by the court in its 1951 modification of
the divorce decree, required appellant to reimburse respondent for the medical and dental bills
paid by her for the minor children only on the condition that the bills submitted by respondent
to appellant were supported by affidavits of verification and were from doctors who were
members of the American Medical Association or from dentists who were members of the
American Dental Association. Respondent admits that she never presented to appellant any
affidavit of verification. This being expressly made a condition precedent to appellant's
obligation for payment of such bills, the obligation never arose, and appellant was within
his legal rights in refusing payment.
being expressly made a condition precedent to appellant's obligation for payment of such
bills, the obligation never arose, and appellant was within his legal rights in refusing
payment.
Inasmuch as the appellant was not in default under the agreement or the decree as last
amended, respondent had no right to refuse appellant visitation privileges. She admitted such
refusal. Payments to be made thereafter for the support of the children were conditional upon
appellant's rights of visitation, and her violation of the visitation provisions precludes her
from maintaining against appellant a proceeding to recover the unpaid installments of
support. Baumann v. Goldstein, Mun. Ct., 201 N.Y.S.2d 575. This rule is based upon a
doctrine of the law of contracts concerning the mutual dependency of all promises in a
bilateral agreement. Cole v. Addison, 153 Ore. 688, 58 P.2d 1013, 105 A.L.R. 897.
We are not concerned in this case with the situation where the welfare of the children
requires their father's support notwithstanding the wrongful denial of his visitation rights.
This is a proceeding to reduce to judgment arrearages in child support payments. The interests
and welfare of the minor children are not in any way involved. All their wants, including
medical and dental requirements, had been supplied by respondent, who now simply seeks
reimbursement from appellant. See Paine v. Paine, 71 Nev. 262, 287 P.2d 716. The
provisions in the agreement relieving appellant of his obligation to support the children under
certain specified conditions have had judicial approval and it is not suggested that these
provisions were in any respect unfair.
[Headnote 2]
Respondent contends that appellant's payment of unverified medical bills up until the early
part of 1959 constituted an implied waiver of the provision for verified bills. We believe this
contention is unsound. Undoubtedly, some dental and medical bills would, without
verification, appear to be necessary and proper expenses and the payment of such could not
properly be considered as a waiver of the verification requirement in subsequent bills.
be considered as a waiver of the verification requirement in subsequent bills. This is clearly
exemplified by appellant's letter of March 20, 1959 to respondent wherein he stated:
Frankly I am very confused by this avalanche of medical bills and also amazed at the
attitude you take to the effect that I must pay any and all bills you choose to incur without
first being taken into consideration regarding my ability to pay them or of my wishes with
regards to bills for medical expenses other than normal and necessary ones. I refer to the
treatment for John's face and the bill you sent for $50.00 for a psychologist.
Naturally I am fully agreeable to paying any normal medical bills for the children
however I must ask that you obtain my agreement to medical services for other than normal
ones. I do not think that it was the intention of either of us at the time the agreement was
made that you should have a blank check' for any bills you choose to incur under the heading
of medical expense for the children.
In view of the ever increasing bills which you are passing on to me I must ask that the
attached bills as well as all future bills contain a sworn statement as provided for in our
agreement. This statement should indicate who the bill covers treatment for and for what
purpose.
[Headnote 3]
In order to establish a waiver, the intention to waive must clearly appear, Afriat v. Afriat,
61 Nev. 321, 117 P.2d 83, 119 P.2d 883, and the party relying upon the waiver must have
been misled to his prejudice. Union Central Life Ins. Co. v. Schultz, 45 Ida. 185, 261 P. 235;
Universal Gas Co. v. Central Illinois Public Service Co., 7 Cir., 102 F.2d 164.
The said letter of appellant to respondent shows clearly his lack of intention to waive the
requirement of affidavits. She admitted receiving the letter about March 25, 1959, more than
a year prior to the commencement of these proceedings, and yet she failed within that time to
obtain any affidavits of verification. So long as he was satisfied with the bills he had no
reason to question them.
them. When he did question them she refused to furnish the required affidavits. There was
nothing inequitable on appellant's part in insisting upon her compliance with the provisions of
the agreement.
Because we have concluded that the judgment must be reversed, for the reasons heretofore
stated, it is unnecessary to enlarge this opinion with a consideration of whether the provision
relating to membership of doctors and dentists in certain organizationsw is void as against
public policy as claimed by respondent, or whether it was proper for the lower court to
include in the judgment sums which the court found to have become due after the
commencement of these proceedings and which were not included in the moving papers.
Reversed.
____________
78 Nev. 167, 167 (1962) Schumacher v. Furlong
JACK SCHUMACHER, Appellant, v. THE STATE OF NEVADA on Relation of THOMAS
FURLONG, Respondent.
No. 4474
April 3, 1962 370 P.2d 209
Appeal from the First Judicial District Court, Ormsby County; Richard L. Waters, Jr.,
Judge.
Proceeding for removal of county assessor. The trial court entered judgment ordering
assessor removed from office and an appeal was taken. The Supreme Court, McNamee, J.,
held that evidence, in proceeding for removal, was sufficient to sustain finding of
nonfeasance based on failure to perform certain statutory duties.
Affirmed.
Springmeyer, Thompson & Dixon, and Robert A. Groves, of Reno, for Appellant.
John Tom Ross, District Attorney, and Theodore H. Stokes, Deputy District Attorney,
Ormsby County, for Respondent.
1. Officers.
Nonfeasance is substantial failure to perform a required legal duty, while misfeasance, is the doing in
a wrongful manner of that which the law authorizes or requires a public officer to do.
2. Taxation.
Failure of a county assessor to perform statutory duty of assessing all property subject to taxation at its
full cash value constituted nonfeasance, and failure to list and assess all real and personal property
subject to taxation, and failure to demand statements of property owned as required by statute were also of
omission constituting nonfeasance. NRS 283.440, 361.225, 361.260, subd. 1, 361.265, subd.1.
3. Taxation.
If county assessor assessed property on basis of a percentage of full cash value, such conduct would
constitute misfeasance, and would not be ground for removal. NRS 283.440.
4. Taxation.
Failure of county assessor to assess equally and uniformly, and his failure to prepare printed list of
taxpayers within prescribed time were acts of misfeasance and were not ground for removal. NRS
283.430.
5. Taxation.
County assessor could not be excused for nonfeasance, when his failure to follow statutes was due to his
own carelessness, for he was charged with knowledge of the facts disclosed by the record in his county.
6. Taxation.
A county assessor could not be excused for nonfeasance on ground he was only doing what other
assessors were doing, nor on ground he failed to do the duties required by statute of him as assessor
because of lack of adequate maps and plats in his office, nor on ground of lack of knowledge of his
statutory duties. NRS 283.440.
7. Customs and Usages.
Evidence of established customs, practices and procedures of assessors was not admissible in connection
with charges of nonfeasance, where such customs, practices and procedures were in conflict with statutory
provisions.
8. Taxation.
Evidence, in proceeding for removal of county assessor, was sufficient to sustain finding of nonfeasance
based on failure to perform certain statutory duties. NRS 283.440, 361.225, 361.260, subd. 1,
361.265, subd. 1.
OPINION
Respondent filed a proceeding in the lower court for the removal of appellant from the
office of Assessor of Ormsby County pursuant to NRS 283.440. It is alleged in the amended
complaint that appellant on January 7, 1959 was appointed to the office of Assessor of
Ormsby County; that on November S, 1960 he was elected to said office; that from and
after January 7, 1959 defendant has held said office.
alleged in the amended complaint that appellant on January 7, 1959 was appointed to the
office of Assessor of Ormsby County; that on November 8, 1960 he was elected to said
office; that from and after January 7, 1959 defendant has held said office.
The amended complaint consists of ten counts. We are interested only in Counts 2, 3, 4, 5,
6, and 8 as the others were disposed of in favor of the appellant prior to this appeal.
Count 2 alleges that appellant, between July 1 and December 31 of each of his years in
office, has refused or neglected to determine full cash value of all real and personal property
in Ormsby County which is subject to taxation in that the average rate of assessment to
market value in the county exclusive of Carson City is 19 percent and for Carson City is 25
percent.
Count 3 alleges that between July 1 and December 31 of each of his years in office,
appellant has refused or neglected to list and assess all real and personal property located in
Ormsby County to the parties owning the same, because of lack of knowledge thereof due to
insufficient records and office systems.
Count 4 alleges that appellant has refused or neglected to assess all of the real and personal
property located in Ormsby County subject to taxation.
Count 5 alleges that between July 1 and December 31 of each of his years in office,
appellant has refused or neglected to assess real property subject to taxation located in
Ormsby County on the assessment roll equally and uniformly in that the average ratio of
assessed value to market value was 25 percent in Carson City and 19 percent in the remainder
of the county; that property located in Section 5 directly north of Carson City is assessed at
$250 to $500 per acre while property adjoining the city to the west is assessed as low as $2
per acre.
Count 6 alleges that appellant refused or neglected to demand from each person or firm,
etc., a statement of all real and personal property within the county owned or claimed by such
persons, etc.
Count 8 alleges that on or before the 1st day of January of each of his years in office,
appellant has refused or neglected to prepare a printed list of all of the taxpayers in the
county and a total valuation of property on which they severally pay taxes, and that he
has failed to post and publish notice of completion of the tax roll as required by law.
refused or neglected to prepare a printed list of all of the taxpayers in the county and a total
valuation of property on which they severally pay taxes, and that he has failed to post and
publish notice of completion of the tax roll as required by law.
The trial court entered judgment that Counts 2, 3, 4, 5, 6, and 8 were sustained by the
evidence and ordered appellant removed from the office of County Assessor. Appeal is from
that judgment.
Appellant assigns the following errors:
1. Counts 2, 3, 4, 5, 6, and 8 do not constitute cause for removal.
2. Error in admitting evidence that household goods were assessed by appellant at 10
percent of the assessed value of the real property improvements.
3. Error in refusing to admit or consider evidence of established customs, practices, and
procedures of assessors throughout the State of Nevada in relation to the charges.
4. Error in refusing to admit or consider evidence that the omissions of appellant were with
the prior knowledge and approval of the Ormsby County Board of Equalization, the Ormsby
County District Attorney, and the Nevada Tax Commission.
5. Error in refusing to admit or consider evidence of good faith or lack of culpability on the
part of appellant.
The Nevada Constitution, art. 7, sec. 4, empowers the Legislature to make provision for
the removal from office of a civil officer for malfeasance or nonfeasance in the performance
of his duties. Pursuant to such authority, NRS 283.440 was passed which provides for the
removal of an office holder who shall refuse or neglect to perform any official act in the
manner and form prescribed by law, or who shall be guilty of any malpractice or malfeasance
in office.
It is to be noted that neither the Nevada Constitution nor said statute makes misfeasance a
ground for removal.
The case of Buckingham v. District Court, 60 Nev. 129, 102 P.2d 632, in construing this
act distinguishes malfeasance from nonfeasance.
malfeasance from nonfeasance. In that case this court assumed that malpractice and
malfeasance were synonymous and held that the charges against Buckingham were acts of
omission rather than commission; that the two were distinct under the statute; that conduct
invoking one charge is not sufficient to justify the other; and that the particular acts of
omission were not required of Buckingham as part of his duties as county treasurer and, thus,
Buckingham did not refuse or neglect to perform any official act in the manner and form
prescribed by law.
The first assignment of error necessitates consideration of whether Counts 2, 3, 4, 5, 6, and
8 are grounds for removal as being nonfeasance under the statute. We are not concerned with
the question of whether appellant's conduct constituted malfeasance.
[Headnote 1]
Nonfeasance is the substantial failure to perform a required legal duty. Misfeasance is the
doing in a wrongful manner of that which the law authorizes or requires him to do. White v.
Lowry, 162 Miss. 751, 139 So. 874; State v. Barnett, 60 0kl.Cr. 355, 69 P.2d 77.
In Moulton v. Scully, 111 Me. 428, 434, 89 A. 944, 947, nonfeasance is defined as an
omission to perform a required duty at all, or a total neglect of a duty; the omission of an act
which a person ought to do.
Similar definitions are found in State v. State Civil Service Commission, 147 Ohio 430, 72
N.E.2d 69, and in State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129, 92 A.L.R. 988;
State v. Miller, 32 Wash.2d 149, 201 P.2d 136.
[Headnotes 2, 3]
As to Count 2 above: All property subject to taxation is required by statute to be assessed
at its full cash value (NRS 361.225). A determination by an assessor of the full cash value of
real and personal property therefore is necessary before a proper assessment can be made, and
such a determination is expressly required by statute. Subsection 1 of NRS 361.260. Failure
in this regard is a failure to perform a statutory duty, and constitutes nonfeasance under the
authorities above cited.
and constitutes nonfeasance under the authorities above cited. The added allegation in this
count that the average rate of assessment to market value in the county exclusive of Carson
City is 19% and for Carson City is 25% is surplusage. If appellant had assessed on the basis
of a percentage of the full cash value such conduct would constitute misfeasance and would
not be a ground for removal under the statute.
The failure to list and assess all real and personal property subject to taxation as specified
in Counts 3 and 4 is in violation of statute (NRS 361.225), and the failure to demand the
statements as specified in Count 6 is also in violation of statute (subsection 1 of NRS
361.265). These likewise are clearly acts of omission constituting nonfeasance under the cited
authorities.
The fact that appellant has had insufficient records which would prevent him from
performing his duties is a result of his own fault. He has had the period since January 7, 1959
within which to obtain the necessary records.
[Headnote 4]
As to Counts 5 and 8, his failure to assess equally and uniformly and his failure to prepare
on time the printed list of taxpayers, etc., within the prescribed time are acts of misfeasance
rather than nonfeasance.
Appellant's first assignment of error as to Counts 2, 3, 4, and 6 is without merit. His
objections to Counts 5 and 8 are well taken because, as aforesaid, these counts pertain to
misfeasance and therefore will be disregarded. None of the assignments of error goes to the
sufficiency of the evidence to support these charges of nonfeasance. We have however
examined the record and appellant's testimony in itself would support such charges.
The entire thesis of appellant's defense consists of his assertion (1) that he was only doing
what other assessors are doing, (2) that he failed to do the duties required by statute of him as
assessor because of lack of proper tools in his office, i.e., adequate maps and plats with
which to accomplish proper assessments, and {3) lack of knowledge of some of his
statutory duties.
with which to accomplish proper assessments, and (3) lack of knowledge of some of his
statutory duties.
The following testimony of appellant shows that he knew the maps in his office were
deficient:
(Q.) What was inaccurate about the maps of the county or insufficient?
A. Many things.
Q. Well, will you just state to the Court, please?
A. Well, we have a county plat and I can produce it, with quite a number of the
pageswhere the entire sections are missing.
Q. Now when did you first discover this?
A. When I first went into office.
Q. That was in 1959?
A. Right.
Q. And up until August 1st of this year [1961] the same had not been corrected; is that
correct?
A. That is correct.
* * * * *
(Q.) Are you familiar with the duty, Mr. Schumacher, of the County Assessor to ascertain
by diligent inquiry and examination all of the real and personal property in the County of
Ormsby subject to taxation?
A. Yes.
* * * * *
(Q.) Mr. Schumacher, have you assessed all of the real and personal property located in
Ormsby County subject to taxation?
A. To the best of my ability, yes.
* * * * *
(Q.) This ability or this assessment was done by you with the full knowledge of
inadequate records; is that correct? A. Yes.
Q. Now, Mr. Schumacher, have you assessed all of the real property located in Ormsby
County, Nevada subject to taxation on the assessment roll equally and uniformly?
A. Again, to the best of my ability as far as was possible with the equipment that was in
the office. When I am talking about equipment I am talking about plat maps."
I am talking about equipment I am talking about plat maps.
With respect to Count 6, appellant testified as follows: Q. And do you send out any such
statements to get the statements under oath or affirmation as to real property owned or
claimed in the county?
A. No.
Q. And has that ever been done in your term of office?
A. Never been done to my knowledge in the office.
Q. Are you doing it this year?
A. No.
Q. Do you have knowledge that this is a requirement by the statute?
A. No.
[Headnotes 5, 6]
None of appellant's assertions constitutes a legal justification for appellant's admitted
omissions. The assessor cannot be excused when his failure to follow the statutes is due
entirely to his own carelessness, for he, with others, is charged with knowledge of the facts
disclosed by the record in his county. Reagan v. Dick, 88 Colo. 122, 293 P. 333.
The second assignment of error consists of admitting evidence that household goods were
assessed by appellant at 10 percent of the assessed value of the real property improvements.
This evidence could be relevant only to a charge of misfeasance and was introduced to
support the allegations contained in Count 5. Inasmuch as we have disregarded Count 5,
further consideration of this assignment is unnecessary.
[Headnote 7]
As to specification 3, whatever the rule might be with respect to a charge of malfeasance,
it was not error to refuse to admit evidence of established customs, practices, and procedures
of assessors in connection with charges of nonfeasance, when such are in conflict with
statutory provisions. See: Brown v. Wyoming Butane Gas Co., 66 Wyo. 67, 205 P.2d 116;
Kaneff v. Gantz, 102 Ohio App. 363, 143 N.E.2d 630. In 55 Am.Jur., Usages and Customs,
sec.
and Customs, sec. 14, p. 276 (1946), it is said: Local usages, for example, cannot contravene
the settled principles of law, nor can evidence be received of local customs which are
contrary to established principles of law. See also 55 Am.Jur., Usages and Customs, sec. 17
(1946). For the same reason, specifications 4 and 5 are without merit.
Appellant contends that evidence was received pertaining to acts of omission which
occurred prior to January 1, 1961 and while he was serving a former term of office. This
evidence results from appellant's own testimony and is relevant to show appellant's intent to
continue the nonperformance of such duties. In any event appellant also testified that the
same acts of omission continued after January 1, 1961 and during his current term.
[Headnote 8]
The nonfeasance alleged in Counts 2, 3, 4, and 6, each specifying an omission to perform a
statutory, duty, and each having been proven by substantial evidence, is legally sufficient to
support the lower court's judgment ordering appellant's removal from office.
Affirmed.
Badt, C. J., and Breen, D. J., concur.
Thompson, J., being disqualified, the Governor designated Honorable Peter Breen, Judge
of the Fifth Judicial District, to sit in his stead.
____________
78 Nev. 176, 176 (1962) Sisson v. Georgetta
STATE OF NEVADA ex rel. JONATHAN A. SISSON, Petitioner, v. CLEL GEORGETTA,
as District Judge of the Second Judicial District Court of the State of Nevada, in and for the
County of Washoe, Respondent.
No. 4502
April 4, 1962 370 P.2d 672
Original petition for writs of prohibition and mandamus.
Original proceeding to restrain a district judge from further proceeding in an action, after
petitioner had served and filed a statutory affidavit of prejudice disqualifying him, except for
assigning the case to another judge. The Supreme Court held that the district court lost power
to do anything further in case except to transfer action to another judge upon proper filing of
affidavit of prejudice and payment of statutory fee and had no power to allow the making,
transcribing and filing of party's statements in record even to make record speak the truth.
Petition for writ of prohibition granted.
Sinai & Sinai, of Reno, for Petitioner.
Breen, McDonald and Young, of Reno, for Respondent.
1. Mandamus.
Contention of invalidity of divorce judgment raised for first time on oral argument in original mandamus
proceeding and not raised in pleadings or brief would not be considered where party attacking judgment
had acknowledged it and waived invalidity by filing motion to amend custody provision. NRCP 55(b) (1,
2), 76A(a).
2. Judges.
Where ten-day period did not exist between notice and time set for hearing, rule providing for filing of
affidavit of prejudice at least ten days before trial was not applicable and affidavit filed seven days before
time set for hearing was effective. NRS 1.230, subd. 5.
3. Judges.
District court lost power to do anything further in case except to transfer action to another judge upon
proper filing of affidavit of prejudice and payment of statutory fee, and had no power to allow the making,
transcribing and filing of party's statements in record assertedly to make record speak the truth. NRS
1.230, subd. 5.
4. Mandamus; Prohibition.
Where statutory affidavit of prejudice had been filed against judge, proceeding for mandamus and
prohibition to restrain him from proceeding further and to command him to desist and refrain from any
other proceedings except transferring action to another judge was proper. NRS 1.230, subd. 5.
OPINION
Per Curiam:
This is an original petition to this court for writs of mandamus and prohibition restraining
respondent district judge, in general, from proceeding further in an action entitled Shirlee
Vaughn Sisson, plaintiff, v. Jonathan A. Sisson, defendant, after petitioner had served and
filed therein a statutory affidavit of prejudice disqualifying respondent. More particularly,
petitioner seeks (1) a writ of mandamus ordering respondent to direct his official reporter to
take no further action in transcribing, filing, or distributing certain statements made by the
court after the filing of such affidavit; (2) in the event that such transcription had been
completed and filed, a writ of mandamus directing respondent to expunge the same from the
record; and (3) a writ of prohibition restraining respondent from taking any further action in
the case except to assign the same to another judge.
The following facts appear from the petition and answer: Petitioner Jonathan A. Sisson is
the defendant and Shirlee Vaughn Sisson is the plaintiff in a divorce action pending in the
respondent court in which Shirlee sought custody of the three minor children of the parties.
On December 30, 1960, said court entered its judgment and decree granting Shirlee a divorce
and awarding her the custody of the children, Jonathan appealed to this court, which, on
December 13, 1961, filed its opinion affirming that part of the judgment granting Shirlee a
divorce but reversing as to child custody, and granting the sole custody of the three minor
children to Jonathan, subject to rights of visitation in Shirlee. Sisson v. Sisson, 77 Nev. 478,
367 P.2d 98.
On January 16, 1962, Shirlee filed a motion for change of custody and a motion for
temporary custody, with affidavits in support thereof, whereupon respondent issued an
order directed to Jonathan to show cause, on January 26, 1962, at 3:00 p. m., why
temporary custody should not be given to Shirlee pending determination of her motion for
change of custody. On January 1S, 1962, pursuant to motion of Shirlee, respondent reset
said hearing for January 19, 1962, at 4:30 p. m. On January 19, 1962, at 4:06 p. m.,
Jonathan filed and served upon respondent a statutory affidavit of prejudice, pursuant to
the terms of NRS 1.230 {5), disqualifying the judge, and paid the statutory fee. At 4:30 p.
m., on said 19th day of January, 1962, the court continued until the next judicial day,
January 22, 1962, the motions before it, and on January 22 made a lengthy statement of
the history of the case for the record, and directed his court reporter to record the same.
of custody and a motion for temporary custody, with affidavits in support thereof, whereupon
respondent issued an order directed to Jonathan to show cause, on January 26, 1962, at 3:00
p. m., why temporary custody should not be given to Shirlee pending determination of her
motion for change of custody. On January 18, 1962, pursuant to motion of Shirlee,
respondent reset said hearing for January 19, 1962, at 4:30 p. m. On January 19, 1962, at 4:06
p. m., Jonathan filed and served upon respondent a statutory affidavit of prejudice, pursuant
to the terms of NRS 1.230 (5), disqualifying the judge, and paid the statutory fee. At 4:30 p.
m., on said 19th day of January, 1962, the court continued until the next judicial day, January
22, 1962, the motions before it, and on January 22 made a lengthy statement of the history of
the case for the record, and directed his court reporter to record the same.
The foregoing facts are all admitted. The answer to the petition, however, refers to and
makes a part thereof an affidavit executed by respondent containing Chronology of Facts
and Events, and a discussion of and argument on the sufficiency of the petition, occupying
24 pages, to which is attached a partial transcript containing a colloquy between respondent
and his court reporter, from which it developed that the reporter had completed his
transcribing of the record of respondent's statements, and that respondent had then ordered, in
accordance with the alternative writ issued by this court, that the reporter refrain from
distributing copies of the transcript or disclosing the contents thereof. We heretofore granted
petitioner's motion to strike the affidavit. It is reasonable to presume that the statement of
January 22, 1962, which petitioner seeks to expunge from the record, follows the lines of the
stricken affidavit and criticizes counsel for the petitioner.
Under these circumstances respondent asks (1) that this court order and decree that the
petition fails to state a claim upon which relief can be granted; (2) that the alternative writ of
mandamus and the alternative writ of prohibition heretofore issued be quashed; {3) that any
additional or further relief be denied petitioner; and {4) {assuming that this court has
jurisdiction, or should desire to exercise any discretion in the premises) that it first order
the entire official record, "including transcripts of all proceedings in the said case of
Sisson v. Sisson," {and apparently including the transcript of the court's remarks,
attacked by the present proceedings as having been made after respondent had lost
jurisdiction by reason of the affidavit of prejudice), to be filed in this court.
(3) that any additional or further relief be denied petitioner; and (4) (assuming that this court
has jurisdiction, or should desire to exercise any discretion in the premises) that it first order
the entire official record, including transcripts of all proceedings in the said case of Sisson v.
Sisson, (and apparently including the transcript of the court's remarks, attacked by the
present proceedings as having been made after respondent had lost jurisdiction by reason of
the affidavit of prejudice), to be filed in this court.
We are interested only in the points of law raised by respondent in opposition to the
petition for mandamus and prohibition. They appear to be as follows:
[Headnote 1]
1. It is contended that the judgment entered by the clerk of the district court upon the
filing of the remittitur from this court was void because not within the purview of NRCP 76A
(a) and such was in violation of NRCP 55(b) (1) and (2). Such contentions were raised for the
first time when the court assumed the bench for oral argument on March 22, 1962. At that
moment there was presented to the court a pleading entitled Amended Answer, a copy of
which had just been served upon petitioner. No leave of court had been obtained. The
judgment in the case had not theretofore been thus attacked either in the pleadings or in
respondent's brief. To the contrary, the validity of said judgment had been acknowledged by
Shirlee, and the present attack on it waived through the filing of her motion to amend the
provisions of said judgment with reference to the custody of the minor children of the parties
to the main action, and a further motion for temporary award of custody to Shirlee pending
the hearing of said motion, and the obtaining of an order of court setting the date of hearing
of such motions. The contention will not be now considered. It is in any event without merit.
Rule 55 is entitled Default and provides the circumstances in which judgment by default
may be entered by the clerk in which judgment by default is entered through application to
the court. Under NRCP 76A (a) the clerk of the district court, upon receipt of a certificate by
the clerk of the supreme court, is required "to attach the certificate to the judgment and
enter a minute of the judgment of the Supreme Court on the docket against the original
entry."
upon receipt of a certificate by the clerk of the supreme court, is required to attach the
certificate to the judgment and enter a minute of the judgment of the Supreme Court on the
docket against the original entry. This ministerial act was accomplished by the clerk of the
district court.
[Headnote 2]
2. It is next contended that the affidavit of prejudice was not timely filed, because it is
required by the provisions of NRS 1.230(5), that the affidavit be filed at least ten days before
the date set for the trial of the action. In the instant case the affidavit was filed only seven
days before the time set for the hearing of the motions to change custody. Thus, such period
of ten days did not exist between the notice and the time set for hearing, and the rule was
accordingly not applicable. Tarsey v. Dunes Hotel, 75 Nev. 364, 343 P.2d 910. The argument
is without merit.
[Headnote 3]
3. It is nonetheless asserted that, even so, the making, transcribing, and filing of
respondent's statements were within the court's inherent right to make the record speak the
truth and were thus entirely within the court's jurisdiction, despite the filing of the affidavit of
prejudice. We do not agree. The action thus taken by respondent was in the course of
proceedings in the case of Sisson v. Sisson at a time when the respondent had lost power to
do anything further in the case except to transfer the action to another judge. Moore v.
District Court, 77 Nev. 357, 364 P.2d 1073; State ex rel. Kline v. District Court, 70 Nev. 172,
264 P.2d 396; Tarsey v. Dunes Hotel, supra; State ex rel. Stokes v. District Court, 55 Nev.
115, 27 P.2d 534; Beach v. District Court, 53 Nev. 444, 5 P.2d 535.
[Headnote 4]
4. Respondent further contends that neither prohibition nor mandamus is a proper remedy.
The remedy is one, however, under which this court has heretofore granted relief, Moore v.
District Court, supra, and Stokes v. District Court, supra, and was proper.
Considerable discussion arose out of the problem of the assignment of this case by
respondent. Both parties appear to agree however that the case was originally assigned by
respondent, with the consent of the parties, to Honorable Peter Breen of the Fifth District, and
that upon Judge Breen's refusal to accept the assignment, it was assigned, again with the
consent of counsel, to Honorable Richard L. Waters, Jr., of the First District. There is no
occasion, therefore, for the issuance of a writ of mandamus ordering the assignment of the
case to another district judge.
It further appears that upon the receipt of the alternative writ issued by this court,
respondent has already ordered his court reporter to cease and desist from distributing copies
or in any manner disclosing to anyone until the further order of the court the statements made
by respondent in open court on January 19 and January 22, 1962, and that the said statements
have not been made a matter of record in respondent's court. Such order remains and shall
remain in effect. There is accordingly no occasion for any order expunging any part of the
record or for directing any further orders by respondent to his court reporter.
It is hereby ordered that the alternative writ of prohibition commanding respondent to
desist and refrain from any further proceedings in said action, save and except an order or
orders transferring said action to another judge as provided by law, be, and the same hereby
is, made permanent.
____________
78 Nev. 182, 182 (1962) Gunlock v. New Frontier Hotel
MARY GUNLOCK and A. E. GUNLOCK, Appellants, v. THE NEW FRONTIER HOTEL
CORP., a Nevada Corporation, Bankrupt, and LEONARD R. FAYLE, as Trustee of the Said
New Frontier Hotel Corp., a Bankrupt, Respondents.
No. 4456
April 5, 1962 370 P.2d 682
Appeal from the Eighth Judicial District Court, Clasrk County; David Zenoff, Judge.
Action by paying guest against hotel for injuries sustained in a fall in hotel lobby. The
lower court granted a motion for involuntary dismissal, and the guest appealed. The Supreme
Court, McNamee, J., held that maintenance of a floor planter box which ran 30 feet along one
side of the dimly lit lobby did not constitute negligence and hotel was not liable to guest for
injuries sustained when her heel caught in planter while moving backwards in act of turning
around.
Affirmed.
Hawkins & Cannon, of Las Vegas, for Appellants.
Clarence Sundean, of Las Vegas, for Respondents.
1. Trial.
A defendant's motion for involuntary dismissal admits truth of plaintiff's evidence and all inferences that
reasonably can be drawn therefrom, and evidence must be interpreted in light most favorable t plaintiff.
NRCP 41(b).
2. Innkeepers.
Maintenance of a floor planter box which ran 30 feet along one side of the dimly lit hotel lobby did not
constitute negligence and hotel was not liable to paying guest for injuries sustained when her heel caught in
planter while moving backwards in act of turning around.
3. Negligence.
Owner or occupant of property is not an insurer of safety of an invitee thereon, and in absence of
negligence, there is no liability.
4. Negligence.
Owner or occupant of property is not liable to an invitee for injuries resulting from a danger which was
obvious or should have been observed in exercise of reasonable care.
5. Negligence.
Mere fact that there was an accident or some other event and someone was injured is not of itself
sufficient to predicate liability.
6. Negligence.
Negligence is never presumed but must be established by substantial evidence.
OPINION
This is an action for personal injury resulting from a fall in a hotel lobby.
While the appellants were paying guests at the New Frontier Hotel, they entered the front
door of the dimly lit lobby of the hotel about 10:00 p. m. and walked through the lobby some
30 feet to where an artist was seated painting a picture. Nearby and in front of a large
plate-glass window was a planter about two feet wide, extending 30 feet from the front door
to where the artist was painting. The planter was in a box, the border of which arose three or
four inches above the level of the floor, and was concealed by the artificial foliage which was
a foot and a half or two feet high. While she was standing and watching the artist, Mrs.
Gunlock started to turn around. A heel of her high-heel shoes caught on the planter box, she
fell backward into the planter, and was injured by hitting her head on the plate-glass window.
The window did not break.
The case was tried by the court without a jury. After the presentation of appellants'
evidence, the court granted respondents' motion for an involuntary dismissal made pursuant
to Rule 41(b) NRCP. Appeal is from said judgment.
Appellants concede that Mrs. Gunlock fell because she failed to see the planter, and it is
apparent that the reason she did not see the planter was because she was moving backwards in
the act of turning around.
The only matters for consideration are whether any evidence was presented to show
negligence on the part of respondents and, if so, whether Mrs. Gunlock was guilty of
contributory negligence as a matter of law.
[Headnote 1]
A motion for an involuntary dismissal admits the truth of a plaintiff's evidence and all
inferences that reasonably can be drawn therefrom, and the evidence must be interpreted
in the light most favorable to the plaintiff.
reasonably can be drawn therefrom, and the evidence must be interpreted in the light most
favorable to the plaintiff. Gordon v. Cal-Neva Lodge, Inc., 71 Nev. 336, 291 P.2d 1054; Corn
v. French, 71 Nev. 280, 289 P.2d 173.
[Headnote 2]
Appellants maintain that negligence could be inferred from (1) the dimly lit lobby, and (2)
the maintenance of the planter box in a section of the lobby where guests are apt to be. We
conclude that on both of these issues the evidence was as a matter of law insufficient to
constitute negligence.
It appears from the evidence that the planter ran the length of one side of the lobby for at
least 30 feet. There was no evidence that the planter was hidden or concealed. On the other
hand, Mr. Gunlock testified that as he entered the room he saw the planter and was able to see
for a distance of 30 feet to where the artist was painting. Mrs. Gunlock testified in this regard
merely that she had not seen itnot that she wouldn't have seen it if she had looked. Nor was
there any evidence tending to establish that the planter was improperly constructed or located.
Plants in a planter, even if artificial, give warning that some sort of supporting material is
likely to be present and if the planter is located along the edge of a floor, the danger of
stepping into it is obvious. The fact that the supporting material could not be seen because of
the foliage did not constitute it a concealed peril necessitating notice thereof. That the planter
was separated from the floor by a three- or four-inch guardrail, likewise concealed by the
foliage, more aptly would raise an inference of precaution rather than would the omission of
such a separator.
With regard to the lighting in the lobby there is no evidence from which an inference could
be drawn that the dimly lit lobby proximately contributed to her fall. Her back was toward the
planter. She tripped over it while in the act of turning around. The dimness of the lights could
not be the cause of a person's falling into or over an object which was obvious or should
have been observed under the existing conditions by a person in the exercise of
reasonable care.
lights could not be the cause of a person's falling into or over an object which was obvious or
should have been observed under the existing conditions by a person in the exercise of
reasonable care. See Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801.
[Headnotes 3-6]
The owner or occupant of property is not an insurer of the safety of an invitee thereon, and
in the absence of negligence, there is no liability. Decker v. S. H. Kress Company, 168
Cal.App. 2d 365, 335 P.2d 952, 337 P.2d 163. He is not liable for injury to an invitee
resulting from a danger which was obvious or should have been observed in the exercise of
reasonable care. Brown v. San Francisco Ball Club, 99 Cal.App. 2d 484, 486, 222 P.2d 19,
20. The mere fact that there was an accident or other event and someone was injured is not of
itself sufficient to predicate liability. Negligence is never presumed but must be established
by substantial evidence. Snyder v. McDowell, 166 Kan. 624, 203 P.2d 225; Poundstone v.
Niles Creamery, 293 Mich. 455, 292 N.W. 367. There was a total failure in the court below to
present evidence of negligence and proximate cause on the part of the respondents or
evidence which could form a reasonable basis for the inference of either. Rickard v. City of
Reno, 71 Nev. 266, 288 P.2d 209. The granting of the motion for involuntary dismissal was
therefore proper.
1
Barry v. Elkin, 332 Mich. 427, 52 N.W.2d 171.
The propriety of admitting in evidence respondents' exhibit 1 which contained, above Mrs.
Gunlock's signature, a statement that she was about to sit on a table when she fell in the
planter requires no consideration. This exhibit was relevant to the question of Mrs. Gunlock's
contributory negligence. In the absence of negligence on the part of respondents, a
determination of whether Mrs.
____________________

1
Mr. Gunlock's claim for relief was for his wife's medical expenses and loss of consortium. Such claim was
dependent upon the success of his wife's claim. Her claim not having been established, his must fail as well.
whether Mrs. Gunlock is chargeable with contributory negligence is unnecessary.
Affirmed.
Badt, C. J., and Thompson, J. concur.
____________
78 Nev. 186, 186 (1962) Moore v. Moore
MARY COE MOORE, Appellant, v. PAUL F. MOORE and VIRGINIA BENDA
CHATHAM, Also Known as Virginia Benda Chatham Moore, Also Known as V. Benda
Chatham Moore, Respondents.
No. 4470
April 9, 1962 370 P.2d 690
Appeal from summary judgment of the Second Judicial District Court, Washoe County;
Thomas O. Craven, Judge.
Action by divorced wife to set aside divorce decree. The trial court granted motion for
summary judgment by woman divorced husband had subsequently married, and the divorced
wife appealed. The Supreme Court, Thompson, J., held that evidence that husband had failed
to comply with residence requirements before obtaining divorce and that wife had agreed to
divorce without contest believing that husband would establish proper residence, raised
substantial fact issues as to existence of extrinsic fraud precluding summary judgment in
favor of woman whom divorced husband has subsequently married.
Lloyd V. Smith, of Reno, for Respondent V. Benda Chatham Moore.
1. Judgment.
Trial court, in considering motion for summary judgment, properly refused to consider new issues raised
by moving party in answer filed after argument on motion for summary judgment but before decision
thereon.
78 Nev. 186, 187 (1962) Moore v. Moore
2. Judgment.
In action by divorced wife to set aside divorce decree, evidence that husband had failed to comply with
residence requirements before obtaining divorce and that wife had agreed to divorce without contest
believing that husband would establish proper residence, raised substantial fact issues as to existence of
extrinsic fraud precluding summary judgment in favor of woman whom divorced husband has subsequently
married. NRCP 60(b).
OPINION
By independent action under NRCP 60(b) Mary Coe Moore seeks to set aside a decree of
divorce granted Paul F. Moore by a Nevada district court on October 5, 1955. The defendants
are the said Paul F. Moore and Virginia Benda Chatham, also known as Virginia Benda
Chatham Moore. Herein the parties will be referred to as Mary, Paul, and Benda.
Brief mention must be made of the relevant background preceding the present case. Mary
and Paul were married in Massachusetts on December 17, 1930. Almost 25 years later Paul
commenced a divorce action against Mary in Nevada. Mary appeared therein through an
attorney, though she was not personally present at the trial. On October 5, 1955 Paul was
granted a divorce. On the following day Paul and Benda were married in Nevada. In June
1957 Paul filed an affidavit in the said divorce action, wherein he stated that he had not
complied with the residence requirement for divorce. He thereupon stipulated with Mary that
the decree of divorce entered on October 5, 1955 be vacated and set aside. On June 28, 1957
the district court, pursuant to such stipulation, entered its order vacating and annulling that
decree.
Benda, claiming that she had not been notified of the proceeding to vacate the decree, filed
an independent suit in November 1957 asking that the order vacating and annulling the decree
be itself vacated and annulled because Paul and Mary had failed to disclose to the court Paul's
marriage to Benda. Paul and Mary each appeared therein. Each side moved for summary
judgment. Benda's motion was granted, vacating the order of June 2S, 1957 which had
annulled the decree of October 5, 1955.
78 Nev. 186, 188 (1962) Moore v. Moore
of June 28, 1957 which had annulled the decree of October 5, 1955. The summary judgment
thus entered for Benda was affirmed by this court in Moore v. Moore, 75 Nev. 189, 336 P.2d
1073, wherein we held (a) that the decree of divorce granted Paul in 1955 was not void on the
face of the record but, at the most, voidable, and (b) that the 1957 proceeding to set aside said
decree was ineffectual because Benda, being a necessary party, was not given notice thereof.
The instant case followed.
Paul and Benda, defendants in the present action, were each served with process. Paul did
not appear. Benda did. The thrust of Mary's complaint, seeking to vacate and set aside the
1955 divorce granted Paul, is that it was obtained by the extrinsic fraud of Paul. After filing a
motion to dismiss the complaint, which motion was never argued, Benda moved for a
summary judgment, basing that motion upon the records of the case, including the 1955
divorce action and the 1957 suit by Benda, together with the depositions of Paul, Benda and
Mary which had been obtained. Mary also moved for summary judgment. She relied upon the
same records and, in addition, the depositions of three attorneys who represented the parties
to the 1955 divorce action. Argument on the respective motions for summary judgment was
received, at which time counsel for Mary and Benda stipulated that Paul was not a resident of
Nevada on October 5, 1955 when the divorce hearing was had and decree entered. After the
argument on the respective motions for summary judgment, but before decision thereon,
Benda obtained an ex parte order permitting her to file an answer to the complaint. In
addition to denying the material averments of the complaint, Benda pleaded the statute of
limitations, laches and estoppel as affirmative defenses thereto. Among other matters, the ex
parte order provided that all of the defenses raised by Benda's answer could be considered in
determining the motions for summary judgment previously argued. Upon being served with
the answer and ex parte order, counsel for Mary moved to delete that portion of the ex parte
order permitting the court to consider, on the summary judgment motions, all defenses
raised by Benda's answer.
78 Nev. 186, 189 (1962) Moore v. Moore
that portion of the ex parte order permitting the court to consider, on the summary judgment
motions, all defenses raised by Benda's answer. Mary's motion was granted. However, the
court did permit the answer to be filed. Subsequently the lower court granted Benda's motion
for summary judgment, and denied Mary's. It was that court's view that the fraud alleged by
Mary did not constitute extrinsic fraud, with the result that a claim for relief was not stated,
nor otherwise proven by the supporting papers; that as there was no genuine issue of material
fact to be determined, Benda was entitled to an order granting her motion for summary
judgment. Judgment was accordingly entered. Mary appeals.
[Headnote 1]
1. Before discussing the merits of this appeal, we must first resolve the confusion
resulting from the filing of Benda's answer. It is her position, as respondent here, that we may
consider the issues raised thereby. On the other hand, Mary, the appellant, urges that such
issues were not considered by the lower court and we may not consider them on this appeal.
We agree with Mary. The respective motions for summary judgment, filed in the court below,
sought to dispose of the entire case upon the record as it then existed. None of the issues later
raised by Benda's answer were in the case at that time, nor were they mentioned during
argument upon the said motions. The record does not reveal any attempt by Benda to present
such issues for court adjudication before argument on the motions for summary judgment, nor
did she seek to amend her motion for summary judgment to advise her opponent of her desire
to have such issues determined. Though Benda had the right to file an answer to Mary's
complaint, under the circumstances here present, the court below properly refused to consider
the new issues raised thereby, in ruling upon the respective motions for summary judgment;
nor will we consider them on this appeal.
78 Nev. 186, 190 (1962) Moore v. Moore
[Headnote 2]
2. As before stated, the prior law suit instituted by Benda against Mary and Paul resulted
in a determination by this court that the 1955 decree of divorce granted Paul was not void on
the face of the record but, at the most, voidable. Moore v. Moore, 75 Nev. 189, 336 P.2d
1073. In seeking to set aside that decree, Mary, in the case at bar, alleged, among other
matters, the following: That in or about the month of August, 1955, and while plaintiff and
Paul F. Moore were still living and residing together, Paul F. Moore told plaintiff that he
wished a divorce, that he would go to Nevada, that he would there establish legal residence,
remaining and staying in Nevada in the future at least the requisite six weeks' minimum
period, following which he would institute action in Nevada for divorce. That by reason of
the importuning and repeated demands of Paul F. Moore that he be permitted to obtain a legal
decree of divorce in Nevada without contest and upon his statements and representations that
he would, commencing with the time of his anticipated future arrival in Nevada, establish a
good and legal Nevada residence, plaintiff [as defendant in the divorce case] on or about
September 7, 1955, executed a power of attorney. That Paul F. Moore advised plaintiff that
he would, and he did, pay legal fees to counsel so designated in the power of attorney, that
such counsel was suggested and obtained by Paul F. Moore, or his attorneys or agents, that
such counsel was wholly unknown to plaintiff, excepting by name as designated in the power
of attorney, and prior to October 5, 1955, no conferences or communications whatsoever
occurred between plaintiff and said Nevada counsel so designated.[
1
] That without any
disclosure, information, or notice whatsoever to plaintiff, and within approximately one
month, to wit: September 5, 1955 to October 5, 1955, from the date that Paul F. Moore left
the home of plaintiff and himself in Massachusetts, Paul F. Moore caused to be filed in
Nevada the legal action referred to. That, acting
____________________

1
The power of attorney was acknowledged before Mary's Massachusetts counsel.
78 Nev. 186, 191 (1962) Moore v. Moore
under the power of attorney aforesaid, but without any disclosure, notice or information
whatsoever to plaintiff, an answer was filed on behalf of plaintiff in the aforesaid Nevada
action on October 5, 1955, the case was heard and on the same day a purported decree was
entered * * *. Mary then alleges that she first learned that the action was commenced and
decree entered, after it happened, by reading about it in a newspaper; that she would not have
executed the power of attorney but for Paul's representations that he would remain in Nevada
at least the requisite six weeks' minimum period before commencing suit.
The allegations just mentioned are supported completely by the depositions offered in
support of Mary's motion for summary judgment. They are not contradicted or disputed in any
manner whatsoever. No factual issue is raised concerning them. It is our opinion that the
court below erred in deciding that Mary did not establish a claim for relief based upon
extrinsic fraud. Therefore, we shall confine our discussion to this claim of error.
Paul represented to Mary that he would remain in Nevada at least six weeks before filing
suit for divorce. It was important to her that the divorce to be obtained by him was lawfully
procured. Notwithstanding such representation, Paul commenced suit after approximately
four weeks of residence. Neither Paul's attorney, nor Mary's, had any knowledge or reason to
believe that his court testimony as to residence was false. Mary had not been in
communication with her Nevada attorney before the divorce hearing. She was not advised in
advance of the date upon which Paul's divorce case was to be heard. She did not learn until
after the case was presented and decided that the hearing occurred only about four weeks
following Paul's arrival in Nevada. Without question, she had no opportunity through her
counsel or otherwise, at the time of the hearing, to advise the court that Paul had not met the
residential requirement. Had she known of Paul's fraudulent scheme in advance or at the time
of trial, a different question would be posed. Confer v. District Court, 49 Nev. 1S, 234 P.
6SS; Chamblin v. Chamblin, 55 Nev. 146
78 Nev. 186, 192 (1962) Moore v. Moore
Nev. 18, 234 P. 688; Chamblin v. Chamblin, 55 Nev. 146, 27 P.2d 1061. Under such
circumstance she would have had an opportunity to advise the court. Calvert v. Calvert, 61
Nev. 168, 122 P.2d 426; Mazour v. Mazour, 64 Nev. 245, 180 P.2d 103; Colby v. Colby, 78
Nev. 150, 369 P.2d 1019. However, Mary had no such opportunity here. In our opinion, the
present case falls within the doctrine of Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850. In
that case, as here, there was conduct on the part of the plaintiff which prevents the losing
party either from knowing about his rights or defenses, or from having a fair opportunity of
presenting them upon the trial. In Murphy the defendant husband signed an agreement with
plaintiff wife in regard to child custody, and was further assured by the plaintiff, in a
telegram, that the terms of the agreement would be agreed to and signed before the decree
was granted. He executed an appearance and waiver in reliance upon such assurance.
However, at the time of trial, the plaintiff repudiated her agreement and, through her
testimony, induced the court to award custody to her, rather than to the defendant, as provided
by the agreement. Upon the defendant's later motion to modify the decree regarding custody,
the district court, in granting it, found that extrinsic fraud had been practiced upon the
defendant by the plaintiff. This court affirmed. We perceive no difference in principle
between Murphy and the case at bar.
This court's decision in Villalon v. Bowen, 70 Nev. 456, 273 P.2d 409, squarely supports
our conclusion here. We there recognized that perjury alone does not constitute extrinsic
fraud. However, we held that such perjury, together with the fraudulent concealment of the
true facts from the opponent, thereby preventing the exposure of such perjury at the time of
trial, does constitute extrinsic fraud. That is precisely what occurred in the instant case. Mary
did not learn of Paul's perjury in time to expose it at the trial.
We do not consider Smith v. Smith, 68 Nev. 10, 226 P.2d 279, relied upon by Benda, to be
in point with the case before us. In that case we affirmed an order of the trial court which set
aside an order, entered pursuant to stipulation, vacating a divorce decree.
78 Nev. 186, 193 (1962) Moore v. Moore
the trial court which set aside an order, entered pursuant to stipulation, vacating a divorce
decree. The record revealed that the stipulating parties to the vacating order had fraudulently
concealed from the court the intervening marriage of one of them. Though the Smith case may
have been good authority for Benda in the suit filed by her (see Moore v. Moore, 75 Nev.
189, 336 P.2d 1073) wherein she sought successfully to set aside an order entered pursuant to
stipulation vacating a divorce decree, it is of no assistance to her in the defense of the present
suit instituted by Mary. The issues involved in the two cases are quite different. In the instant
case we are faced with the sole question of whether Mary has pleaded and supported her
claim of extrinsic fraud. Such issue was not before the court in either Smith v. Smith, supra,
or Moore v. Moore, supra.
For the reasons mentioned we hold:
(1) That the judgment below, granting the motion for summary judgment of defendant
Virginia Benda Chatham, also known as Virginia Benda Chatham Moore, for the failure of
Mary Coe Moore to prove extrinsic fraud, is reversed.
(2) The case is remanded for further proceedings upon the new issues raised by the answer
of Virginia Benda Chatham, also known as Virginia Benda Chatham Moore, and not
heretofore considered.
Reversed and remanded. No costs allowed.
_________
78 Nev. 194, 194 (1962) Ortiz v. Garvin
BENJAMIN L. ORTIZ CO., a Nevada Corporation, and BENJAMIN L. ORTIZ, Individually,
Appellants, v. DON GARVIN, Respondent.
No. 4444
April 11, 1962 370 P.2d 675
Appeal from the Eighth Judicial District Court, Clark County; Taylor H. Wines, Judge.
Action to recover certain engineering work performed on grounds of a hotel corporation.
Judgment for the respondent in the trial court and the plaintiffs appealed. The Supreme Court,
McNamee, J., held that plaintiffs to recover against the respondent as alleged agent of the
corporation must prove that the respondent employed the plaintiffs to do the engineering
work while representing to them that he was authorized so to do by the corporation and on the
record burden of plaintiffs was not sustained.
Affirmed.
John W. Bonner, of Las Vegas, for Appellants.
Morse & Graves, of Las Vegas, for Respondent.
1. Corporations.
Plaintiffs to recover for engineering work performed on grounds of hotel corporation against the
respondent as alleged agent of corporation, must prove that the respondent employed the plaintiffs to do the
engineering work while representing to them that he was authorized so to do by the corporation and on the
record, burden was not sustained.
2. Evidence.
The trial court could believe the testimony of respondent and disbelieve the testimony of plaintiffs.
3. Evidence.
In action to recover for engineering work on ground that respondent representing himself to be duly
authorized agent of hotel corporation employed plaintiffs to do the work, evidence of a prior contract
between corporation and plaintiffs negotiated by respondent was properly excluded where evidence of
ostensible authority was not material.
4. Depositions.
Refusing to admit a deposition taken in connection with plaintiff's prior suit against a hotel
corporation was proper where respondent was not a party in that suit and had no
opportunity to examine the deponent.
plaintiff's prior suit against a hotel corporation was proper where respondent was not a party in that suit and
had no opportunity to examine the deponent. NRCP 26(d).
OPINION
Appellants performed certain engineering work on the grounds of the Hotel Flamingo in
Las Vegas. The work consisted chiefly of surveys in connection with the proposed
construction of a convention hall for the hotel, and the reasonable value of such surveys was
$1,813.23. When Hotel Flamingo, Inc., refused to pay for the work, suit was brought against
the hotel unsuccessfully, it being determined therein that the hotel had never authorized the
work. The judgment was affirmed by this court in Ortiz Co. v. Hotel Flamingo, 76 Nev. 325,
353 P.2d 268.
In the present action appellants allege that the respondent, while representing himself to
them as the duly authorized agent of Hotel Flamingo, Inc., employed them to perform the
specified engineering work on the hotel grounds; that appellants acted on said representation
believing it to be true, and by reason of respondent's unauthorized acts, appellants have not
been compensated for the services performed under said employment.
The lower court found that respondent during the time herein mentioned had been
employed by the hotel as its chief engineer, but that the planning of the convention hall was
not one of his duties; that two members of an out-of-state architectural firm had come to Las
Vegas to make an on-the-site study of the site under consideration; that respondent had
informed Mr. Ortiz when the architects would be at the hotel and, when they arrived, he
introduced Mr. Ortiz to them; that appellants at one time had been employed by the hotel to
do some engineering work in connection with some minor construction at the hotel; that Mr.
Ortiz did not discuss the terms of any employment with the architects, the respondent, or with
any of the officials of the hotel, "nor did he question the defendant [respondent]
concerning his authority to employ engineering services"; and that appellants performed
the engineering services which constitute the basis for the present suit.
hotel, nor did he question the defendant [respondent] concerning his authority to employ
engineering services; and that appellants performed the engineering services which
constitute the basis for the present suit. All the foregoing findings are supported by competent
evidence.
[Headnote 1]
In order to have been successful in the court below, it was incumbent upon appellants to
prove, as alleged, that respondent employed appellants to do the engineering work while
representing to them that he was authorized so to do by the Hotel Flamingo, Inc.
The record is silent as to any express representation on the part of respondent that he was
authorized by the hotel to employ appellants to do the survey work. Mr. Ortiz and one
Springer, his surveyor, testified as to conversations and conduct of respondent from which it
could be inferred that appellants were hired to do the work by the hotel. On the other hand,
respondent testified that he expressly told Ortiz that the architectural firm wanted to have the
survey work done and that his only connection with the work was to introduce Ortiz to the
architects when they arrived in town. Respondent denied positively ever authorizing or
instructing Ortiz to do the survey on behalf of himself or the hotel. When called as an adverse
witness, Ortiz admitted that he had stated under oath in a prior proceeding that respondent
merely introduced us to the two representatives and turned us over to them and we listened
and took notes.
[Headnote 2]
With such conflict in the evidence, the court could conclude as it did that the appellants
had not proved by a preponderance of the evidence that the defendant by words or conduct
represented to appellants that he was the duly authorized agent of Hotel Flamingo, Inc., for
the purpose of procuring the engineering services of appellants. The lower court properly
could believe the testimony of respondent and disbelieve the testimony of appellant Ortiz and
his surveyor, Springer. In so doing, the elements of misrepresentation and reliance thereon
necessary for tort liability under the allegations of the complaint are both lacking.
thereon necessary for tort liability under the allegations of the complaint are both lacking.
There is no evidence to show that respondent at any time employed appellants on his own
behalf.
We find no merit in the contention of appellants that the findings of fact do not support the
conclusions of law and judgment, or that the conclusions and judgment are contrary to the
evidence.
[Headnote 3]
Evidence of a prior contract between the Hotel Flamingo, Inc., and appellants, negotiated
by respondent, was relevant to ostensible authority only and thus was properly received in the
action of Ortiz Co. v. Hotel Flamingo, supra. This evidence was excluded in the present case
and although such exclusion was assigned as error in appellants' briefs, appellants concede in
oral argument that such exclusion was not improper, because evidence of ostensible authority
is not material to an allegation that respondent misrepresented his authority in connection
with the survey work.
[Headnote 4]
The refusal of the court to admit in evidence a deposition which had been taken in
connection with the said suit of Ortiz Co. v. Hotel Flamingo and which was received in
evidence on motion for a new trial in that case was not error, because respondent was not a
party in that suit, and he had no opportunity to examine the deponent. NRCP 26(d). The
action of the trial court in this regard was proper. Seidell v. Tuxedo Land Co., 1 Cal.App.2d
406, 36 P.2d 1102.
Affirmed.
____________
78 Nev. 198, 198 (1962) Overton v. State
SAMUEL DAVIS OVERTON, Appellant, v.
STATE OF NEVADA, Respondent.
No. 4475
April 13, 1962 370 P.2d 677
Appeal from judgment of the Eighth Judicial District Court, Clark County; John C.
Mowbray, Judge.
The defendant was convicted in the trial court of unlawful possession of heroin, and he
appealed. The Supreme Court, Thompson, J., held that evidence of a prior sale or sales of
heroin by the defendant was probative to establish his guilty knowledge that the substance in
capsules was narcotic in nature, and such evidence was properly admitted in the State's case
in chief.
Judgment affirmed.
Robert Santa Cruz, of Las Vegas, for Appellant.
Roger D. Foley, Attorney General; John F. Mendoza, District Attorney; Charles L.
Garner, Deputy District Attorney, for Respondent.
1. Criminal Law.
A preliminary examination is not a trial, and magistrate, before whom the examination is held,
determines only whether it appears that a public offense has been committed, and whether there is
sufficient cause to believe the accused guilty thereof. NRS 171.450, 171.455.
2. Criminal Law.
Conduct of the prosecuting attorney during recess between sessions of preliminary examination could not
possibly have prejudiced defendant with respect to substantial right in trial subsequently held, and therefore
no reversal because of such conduct was warranted. NRS 169.110, 171.450, 171.455.
3. Criminal Law.
Defendant, by proceeding to trial on merits without raising any objection to proceedings before
magistrate on preliminary examination, other than objection urged by motion to set aside information,
waived any irregularities which might have occurred therein. NRS 171.450, 171.455.
4. Criminal Law.
No reversal of conviction was warranted because of fact that after jury had been selected, but before
introduction of any evidence, prosecuting attorney obtained from clerk of court balloon, in which capsules
of heroin were found, and which had been received in evidence at preliminary examination, to discuss
exhibit with witnesses to be later placed on stand, where it was conceded that balloon was not
tampered with altered, or changed in any respect.
stand, where it was conceded that balloon was not tampered with altered, or changed in any respect. NRS
169.110.
5. Criminal Law.
Statute providing that whenever any preliminary examination has been had and defendant held to appear
before court having jurisdiction of offense, magistrate or other officer holding examination shall deliver to
clerk of court within ten days after holding of examination the complaint, bonds, affidavits, warrants, and
full transcript of proceedings of examination in directory merely, and filing of transcript with clerk of
district court within reasonable time is sufficient. NRS 173.160.
6. Criminal Law.
Balloon, in which capsules of heroin were found, was properly received in evidence in prosecution for
unlawful possession of heroin, over objection that there was not sufficient evidence to establish that
defendant had been in possession of balloon, where detective testified that defendant admitted to him that
balloon was his, and arresting officer testified that balloon was picked up within three feet of defendant and
that there was no one else in immediate area. NRS 453.030.
7. Criminal Law.
Balloon, in which capsules of heroin were found, was properly admitted in prosecution for unlawful
possession of heroin, over objection that capsules of heroin had not been separately identified by officer
who took possession of them or by chemist who later tested substance contained therein. NRS 453.030.
8. Poisons.
Knowledge by defendant of narcotic character of narcotic possessed is essential element of crime of
unlawful possession of narcotic. NRS 453.030.
9. Criminal Law.
Plea of not guilty puts in issue every material allegation of information. NRS 174.350.
10. Criminal Law.
Evidence of prior sale or sales of heroin by defendant, who was being prosecuted for unlawful possession
of heroin, was probative to establish his guilty knowledge that substance in the capsules was narcotic in
nature and was properly admitted in State's case in chief. NRS 453.030.
11. Poisons.
Evidence sustained conviction for unlawful possession of heroin. NRS 453.030.
OPINION
By criminal complaint, Overton, the appellant, was charged with the unlawful possession
and control of heroin, a narcotic drug. At the conclusion of a preliminary hearing on
December 14, 1960, he was held to answer in the district court.
to answer in the district court. On December 16, 1960, the assistant district attorney, with
leave of court, filed an information against Overton pursuant to NRS 173.140.
When first before the district court for arraignment upon the information thus filed,
Overton objected to being arraigned, for the reason that the full transcript of the proceedings
of the preliminary examination had not been delivered to the clerk of the district court within
10 days following the preliminary hearing, as required by NRS 173.160. The district court
continued the arraignment and directed the filing of such transcript within 10 days thereafter.
The transcript was filed before the arraignment occurred. At the time of arraignment Overton
moved to set aside the information, asserting a lack of jurisdiction in the district court to
proceed because of the failure to deliver the full transcript of the proceedings of the
preliminary hearing within 10 days after the holding thereof. That motion was denied,
whereupon Overton entered a plea of not guilty.
After trial, a jury found Overton guilty. He appeals, claiming that prejudicial errors
occurred as follows: (a) At the preliminary hearing, during a recess, when the prosecuting
attorney spoke to a witness in the presence of other witnesses, thereby violating NRS
171.440, relating to the exclusion of witnesses who had not been examined; (b) At the
preliminary hearing, during a recess, when the prosecuting attorney removed from the
courtroom Exhibit A, a balloon in which the capsules of heroin were found, to discuss the
exhibit with a witness; (c) In the district court, but before testimony was taken, when the
assistant district attorney removed Exhibit A from the custody of the clerk, and discussed it
with witnesses to be called; (d) When the district court denied the motion to set aside the
information; (e) When the district court, over objection, admitted Exhibit A into evidence;
and (f) When the district court denied motions for mistrial, made when evidence of a distinct
and separate crime was offered by the State during presentation of its case in chief.
We turn to discuss such claims of error, and the relevant facts bearing upon each.
[Headnotes 1-3]
1. Re prejudicial error claimed to have occurred during the preliminary examination:
The claimed errors in this regard are those mentioned above as assignments of error (a) and
(b). A preliminary examination is not a trial. The accused is neither convicted nor acquitted of
the crime with which he is charged. The magistrate before whom the examination is held,
determines only whether it appears that a public offense has been committed, and whether
there is sufficient cause to believe the accused guilty thereof. NRS 171.450; 171.455. In the
case at bar, the magistrate ordered that the accused, Overton, be held to answer in the district
court. The conduct of the prosecuting attorney during recess, between sessions of the
preliminary examination, and of which appellant Overton now complains, could not possibly
have prejudiced him with respect to a substantial right in the trial subsequently held and,
accordingly, no reversal on this ground is warranted. NRS 169.110; cf. State v. District Court,
42 Nev. 218, 174 P. 1023. In any event, by proceeding to trial upon the merits, without
raising any objection to the proceedings before the magistrate (other than the objection urged
by his motion to set aside the information to be later discussed), Overton waived any
irregularities which might have occurred therein. Pinana v. State, 76 Nev. 274, 352 P.2d 824.
[Headnote 4]
2. Re removal by prosecuting attorney from the custody of the court clerk, of an item to be
later received as an exhibit in evidence. At the preliminary examination, a balloon in which
the capsules of heroin were found, was received in evidence as Exhibit A. All exhibits there
received were subsequently delivered to the clerk of the district court, pending trial upon the
merits. After the jury had been selected, but before the introduction of any evidence, the
prosecuting attorney obtained said balloon from the clerk of court and discussed same with
witnesses to be later placed on the stand.
obtained said balloon from the clerk of court and discussed same with witnesses to be later
placed on the stand. With reference to this occurrence, appellant Overton contends that the
prosecuting attorney should have obtained leave of court to remove the balloon, and that his
failure to do so prejudiced Overton with regard to a substantial right. The nature of such
claimed prejudice is not indicated. It is conceded that the balloon was not tampered with,
altered, or changed in any respect. This being true, no possible prejudice could have resulted
to Overton. NRS 169.110. We find this claim of error to be without merit.
3. Re motion to set aside information: As hereinbefore related, the full transcript of the
proceedings of the preliminary examination was not filed with the clerk of the district court
within 10 days following the preliminary examination.
1
However, such transcript was filed
before the accused was arraigned in the district court. He urges that the failure to strictly
comply with the provisions of NRS 173.160 prevented the district court from acquiring
jurisdiction to proceed. He cites Dimmers v. Taylor, 289 Mich. 482, 286 N.W. 798, as
supporting authority. In that case the stenographic notes of the preliminary examination were
not in the file at the time of trial. The trial court granted a motion to quash the information,
because the right to have such preliminary transcript available for use at the trial is a
substantial right. Furthermore, the trial court discharged the defendant. On review the
appellate court held that, under the circumstances there present, the lower court correctly
granted the motion to quash the indictment, but that reversible error occurred when it
discharged the defendant. It particularly pointed out that the lower court had not lost
jurisdiction of the prisoner by reason of the defective information which had been quashed.
____________________

1
NRS 173.160 provides: Whenever any preliminary examination has been had and the defendant held to
appear before a court having jurisdiction of the offense, the magistrate or other officer holding the examination
shall deliver to the clerk of the court within 10 days after the holding of the examination the complaint, bonds,
affidavits, warrants, and a full transcript of the proceedings of the examination.
had been quashed. Accord: In re Elliott, 315 Mich. 662, 24 N.W.2d 528.
In the case before us, the information was filed two days following conclusion of the
preliminary examination as permitted by NRS 173.140. However, the lower court, at the
request of the appellant, did not proceed with the arraignment until the full transcript of such
preliminary examination was in the file and available to the accused. It is evident that there
was no prejudice under such circumstances.
[Headnote 5]
The period of 10 days specified in NRS 173.160 is directory merely. The filing of such
transcript with the clerk of the district court within a reasonable time, is sufficient. People v.
Mullally, 16 Cal.App. 44, 116 P. 88; cf. State v. Polan, 78 Ariz. 253, 278 P.2d 432.
Therefore, we find no merit to this claim of error.
[Headnote 6]
4. Re the admission of Exhibit A in evidence: The balloon in which the capsules of
heroin were found, was received in evidence as Exhibit A. In objecting to its admission,
counsel for Overton urged upon the court that there was not sufficient evidence to establish
that Overton was, or had been in possession of the balloon, or that it was his and, further, that
the capsules of heroin therein had not been separately identified by the officer who took
possession of them, or by the chemist who later tested the substance contained therein. In our
view, the trial court correctly received the proposed exhibit as evidence. A detective testified
that Overton admitted to him that the balloon was his. Additionally, the arresting officer in
describing the arrest of Overton, said: I called for Mr. Overton to stop and he was walking
away from me, he had his back to me. He stopped, turned around and he had his right hand in
his right pocket and as I got nearer to him he pulled his hand out of his pocket and I could
hear some metal falling, he gave it a quick jerk. * * * After I had shaken Mr. Overton down I
looked around to see what had fallen and I found some keys and some change and an orange
colored balloon and I picked up this balloon and I felt some round objects in it."
change and an orange colored balloon and I picked up this balloon and I felt some round
objects in it. The balloon was picked up within three feet of Overton, and there was no one
else in the immediate area. Cf. Terrano v. State, 59 Nev. 247, 91 P.2d 67. Such evidence, if
accepted by the jury, and it apparently was, abundantly establishes Overton's possession and
control of the balloon and contents.
[Headnote 7]
The capsules of heroin were also sufficiently identified. The arresting officer marked the
balloon in which the capsules were contained with his initials and a number, placed all items
in a manila envelope, sealed and marked it, and delivered the envelope to the desk sergeant
who placed it in a vault. Thereafter, the sergeant of identification removed the manila
envelope from the vault and delivered same to a chemist who opened it and tested the
substance contained within the capsules, determining that substance to be heroin. Following
such testing, the chemist returned all items to the envelope, sealed it, and retained it in his
possession until it was produced as evidence during the preliminary examination. Under such
circumstances, Overton's objection to the introduction of Exhibit A, the balloon, upon the
ground that the capsules therein were not separately identified, is obviously without merit.
5. Re evidence of another crime: On two separate occasion during the presentation of the
State's case, in chief, the defendant moved for a mistrial. The motion was first made when a
detective testified that Overton stated that he had known the person with whom he was seen
immediately before his arrest, and had sold heroin to him. The motion for mistrial was
denied. However, the court did strike such testimony and admonished the jury to disregard it.
On the second occasion, a different detective testified that he overheard Overton say, * * *
that he (Overton) went to Mississippi Slim's house, the address I don't know, and at that time
Mississippi Slim, Willie Henderson, and a man, I believe his last name was James, were
present in the house when the defendant (Overton) went over there. He said that they had
just finished capping some heroin and at that time he {Overton) took a portion of what
they had capped up and took it out and sold it and that he brought it.
that they had just finished capping some heroin and at that time he (Overton) took a portion
of what they had capped up and took it out and sold it and that he brought it. * * * He said he
went back to the house and obtained, I believe, 40 more caps and took them down and
disposed of them all except 14; that he then went to the rear of the Nevada Club to meet a
man who he had a prearranged meeting with and he said that while this man that he met there
was examining one of the caps he saw Jergovic [a detective] and Whitney [a detective]
approaching them and at that time the man that was examining the cap swallowed the cap and
he started to run and he threw the balloon down on the ground that had the other caps in it
and that heor Jergovic or Whitney picked it up.
The trial court again, pursuant to motion, struck that portion of the quoted testimony
relating to the sale of heroin, and admonished the jury to disregard it. Overton's motion for
mistrial was denied.
[Headnotes 8-10]
Overton was prosecuted for the violation of NRS 453.030 which provides that it shall be
unlawful for any person to * * * possess, have under his control, sell * * * any narcotic drug
* * *. Knowledge by the accused of the narcotic character of the article possessed is an
essential element of the crime. Wallace v. State, 77 Nev. 123, 359 P.2d 749. A plea of not
guilty puts in issue every material allegation of the information. NRS 174.350. Accordingly,
evidence of a prior sale or sales of heroin by Overton was probative to establish his guilty
knowledge that the substance in the capsules was narcotic in nature.
In Wallace v. State, supra, a narcotics case, we held admissible evidence of a separate
offense, offered in rebuttal, to contradict the testimony of the defendant that he had never
seen marijuana. In the case at bar, the evidence was offered during presentation of the State's
case in chief. Overton contends that this distinction is material. We do not agree. We perceive
no difference in principle between offering such evidence during the State's case in chief to
show the defendant's knowledge of the narcotic nature of the substance, which knowledge
was put in issue by his not guilty plea, and offering such evidence in rebuttal to refute the
defendant's testimony that he did not possess such knowledge.
knowledge of the narcotic nature of the substance, which knowledge was put in issue by his
not guilty plea, and offering such evidence in rebuttal to refute the defendant's testimony that
he did not possess such knowledge. State v. Elges, 69 Nev. 330, 251 P.2d 590. It is our view,
therefore, that the offered, but stricken, evidence, was, in each instance, admissible.
Therefore, Overton may not properly complain of the court's ruling in granting his motions to
strike, nor of its ruling in denying his motions for mistrial.
Overton next contends that, in any event, such testimony should not have been received
because the trial court did not, before receiving such evidence, take the intermediate step
suggested by this court in Nester v. State, 75 Nev. 41, 334 P.2d 524. In that case we said,
Since it is the prejudicial nature of the evidence which is the principal concern, the question
of admissibility does not turn entirely on its relevance or competence. The matter of a fair
trial must also be considered.
In order to establish admissibility, then, it is not enough to establish that the evidence of a
separate offense is relevant and competent under one of the exceptions to the general rule
excluding such evidence. 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.
Whether, under the circumstances, admission of the evidence interferes with fair trial, can
hardly be determined by fixed rule of law. It would seem to require, instead, the exercise of
judicial discretion of the trial judge.
* * * In all such cases as this, then, an intermediate step must be taken between the
determination of relevancy by the court and the weighing of the evidence by the jury. In
determining admissibility the additional responsibility rests upon the trial judge (after having
determined that the evidence of a separate offense is competent and relevant) to balance the
prejudicial and distracting impact of the evidence against its probative weight and
persuasiveness.
weight and persuasiveness. If by the balance struck, prejudice outweighs probative value, the
evidence should be excluded regardless of its relevancy to the issue of identity.
The suggested procedure in Nester is the preferred method, if circumstances permit. Wyatt
v. State, 77 Nev. 490, 367 P.2d 104. However, in the instant case, the so-called intermediate
step could not be taken by the court because evidence of the sale of heroin was in the case
without prior notice or warning of any kind. The court, then, did what it considered to be
proper under the circumstances, and granted Overton's motion to strike. However, for the
reasons heretofore given, we do not believe that the court below was obliged to do that. In
any event, Overton did not sustain a prejudice when the court granted his respective motions
to strike such testimony. Accordingly, this assignment of error is also without merit.
[Headnote 11]
In addition to the claims of error already discussed, the appellant contends that the
evidence was insufficient to support the verdict of the jury. He does not indicate in either his
brief or argument on appeal in what respect the evidence presented would not support his
conviction. We do not, therefore, believe it necessary to consider, in detail, this assignment of
error. It is sufficient to state that the evidence heretofore related in this opinion, and which is
but a part of the case presented, of itself is sufficient to support the jury verdict.
Affirmed.
____________
78 Nev. 208, 208 (1962) Dunes Hotel v. Schmutzer
THE DUNES HOTEL, INC., Appellant v. ROBERT C. SCHMUTZER, M. M. SWEENEY
and LAWRENCE HADLUND, a Co-partnership Doing Business as THE GARDEN
CENTER, Respondents.
No. 4446
April 16, 1962 370 P.2d 685
Appeal from the Eighth Judicial District Court, Clark County, George E. Marshall, Judge.
Action to recover balance due on landscaping contract. The trial court entered judgment
for the plaintiff, and the defendant appealed. The Supreme Court, Badt, C. J., held that the
evidence supported finding that landscaper had substantially complied with terms of tree
planting and landscaping contract.
Affirmed.
Jones, Wiener & Jones, of Las Vegas, for Appellant.
Harry E. Claiborne, of Las Vegas, for Respondents.
Contracts.
Evidence supported finding that landscaper had substantially complied with terms of tree planting and
landscaping contract.
OPINION
The parties will be referred to by their abbreviated names. Schmutzer sued to recover a
balance of $10,181.02 on a $35,000 written contract to furnish trees, plants, and landscaping
on the grounds of Dunes Hotel near Las Vegas. Dunes denied Schmutzer's allegations of the
performance of his contract, and as an affirmative defense alleged that Schmutzer had
violated the terms of his guaranty of all grass, plants, trees and shrubs for a period of one
growing season, to wit, one calendar year from the date of installation thereof early in July
1955. It alleged that subsequent to October 12, 1955 and prior to the expiration of such
period of one year, "substantially all of the trees planted by [Schmutzer] died or were
defective * * *," and that, though demanded, Schmutzer had failed, refused and
neglected to remedy the situation caused by said death or failure of trees, to Dunes's
damage in the sum of $11,500.
1955 and prior to the expiration of such period of one year, substantially all of the trees
planted by [Schmutzer] died or were defective * * *, and that, though demanded, Schmutzer
had failed, refused and neglected to remedy the situation caused by said death or failure of
trees, to Dunes's damage in the sum of $11,500. The trial court found that Schmutzer had
performed in accordance with his contract and had satisfactorily landscaped the grounds and
installed the plants, trees, shrubs, and lawn area owned by the hotel; that the allegations of
Dunes's affirmative defense were untrue, and rendered judgment for Schmutzer in the amount
prayed for.
Dunes Hotel contends that it was not open to a finder of fact to and the allegations of its
affirmative defense untrue because the evidence presented at the trial in support thereof was
uncontroverted. A close examination and analysis of the testimony of the witnesses and the
exhibits received in evidence satisfy us that this assertion is without justification.
The written contract was entered into November 3, 1954, and called for the planting and
landscaping by Schmutzer at an agreed price of $35,000, on progress payments, with final
payment due 30 days after completion. The work was to be done under a plot plan, which
was made a part of the contract. Schmutzer agreed to perform in a good husband like manner
and in accordance with the highest standards of horticulture and to furnish only the best
quality of grass, trees, shrubs, plants, and other material, and, upon the rejection by the hotel
of inferior quality trees, etc., to replace the same. He guaranteed all plantings, as aforesaid,
for one growing season, namely, one calendar year, from the date of installation. The contract,
other than by reference to the plot plan, does not indicate the names of trees, plants, etc., to be
installed, and the photostat copy of the map or plot plan attached to the contract, which is part
of the record on appeal, is so blurred as virtually to destroy its legibility. However, as the
challenge of Schmutzer's performance and the support of the affirmative defense have
reference entirely to the palms and olive trees installed, the testimony of the witnesses
supplies the necessary information.
the affirmative defense have reference entirely to the palms and olive trees installed, the
testimony of the witnesses supplies the necessary information.
On October 12, 1955, some three months after the completion of the planting and
landscaping, Dunes Hotel wrote Schmutzer that it had leased its property for 10 years to
Dunes-Sands Hotel Corporation; that the rental moneys were being deposited in escrow and
were marked for the benefit of Dunes's creditors; that an audit had been completed indicating
that Dunes was indebted to Schmutzer in the sum of $19,962.80; that there was sufficient
money available for an immediate payment of 40 percent to creditors and that thereafter
distributions would be made to creditors out of rental proceeds every three months and that
creditors would be paid in full within 18 to 24 months. The letter thanked Schmutzer for his
cooperation and requested his immediate acceptance of the terms offered. Such letter gave no
indication that any of the material furnished by Schmutzer was unsatisfactory.
The lessee canceled its lease from Dunes on February 1, 1956. During the period of the
lease the Dunes's grounds were maintained and supervised, for the most part, through the
head gardener and crew of the Sands Hotel.
Schmutzer had accepted the Dunes's proposition, the 40 percent payment was made, and
was followed by partial payments in January, April, July, and November 1956, and April
1957, after which no further payment was made and a balance in the sum of $10,181.02
remained due, owing, and unpaid. Plaintiff filed his complaint for this balance July 8, 1958,
some three years after the completion of his work.
Schmutzer testified to his continuous visits to the grounds between July 1955 and July
1956. From his testimony and the testimony of other witnesses it would appear that there had
been installed 26 windmill palms, 6 Chamaerops palms and 9 other palms between the main
hotel and the highway, making a total of 41 palms, in addition to 24 olive trees. Schmutzer
frankly admitted to the poor condition of not more than three palms and not more than two
olives.
not more than two olives. He testified as follows: Let me preface my statement with this.
Many times a palm tree will lose its entire top or fronds and then come out again, and many
times they will come out with a whole new top, and that has happened to us repeatedly on job
after job, on hotel jobs after hotel jobs. Now when I say they were dead, I'm not positive they
were dead. The fronds had receded on the number I mentioned. Now whether they were dead
at that particular time, I did not go and see.
He admitted that after March 1956, Robert Rice, manager of the Dunes, demanded
replacement of some of the trees, but stated repeatedly that their condition was due to neglect
of the hotel, for which he was not responsible, and refused to replace them without being
paid.
Schmutzer rested after his own testimony, and the Dunes's motion for involuntary
dismissal was denied. Appellant then called Mr. Rice, who testified that some 30 trees
required replacement20 or more being palms and the rest olives. The hotel then called
Monrad McBride, a former employer of Schmutzer, who qualified as an expert in this field,
being an owner of a nursery and former head gardener at the Dunes and then at the Sands. He
testified that 28 of the palms and 12 of the olives had died.
On rebuttal Schmutzer denied statements by Rice that Schmutzer had agreed to replace
trees that Rice claimed were defective. Albert Lackner, former head gardener at the Sands and
head gardener and supervisor of the grounds at the Dunes, made a detailed survey of the
Dunes's grounds and found three olive trees pretty badly shot, but which he described as a
condition more or less normal in transplanting olives. In any event, these three were
subsequently removed when the highway on which the Dunes fronted was widened. During
the period involved he made a tour of the Dunes's grounds and checked everything once or
twice a week. He conceded that some of the palms were stunted but the fronds were green,
that they were in good condition when he left, that it was in the winter season and not the
growing season.
The picture may be somewhat clearer when it is understood that the palms were from 15 to
20 feet or more high and were from 20 to 25 years old. They were brought in by truck from
California and installed through the use of cranes. The olives were from 17 to 20 years old.
Lackner testified, after saying that two of the palms and three of the olives were in shock,
as follows: The tree, when it is transplanted, particularly an evergreen tree of any variety,
suffers a setback in transplanting. Hardwood trees like Olives take a long time to recover
from that setback and they also take a long time to die completely from shock. So when I say
they were in shock when we took it over and they were still in shock when we released it, I
mean there was no essential evidence to say they were better off or worse from the time we
took it over until the time we left.
Harry Yavener, the general superintendent of grounds at the Sands Hotel, sent over his
gardening crew under Lackner to the Dunes on September 1, 1955, and kept them there until
the Sands stopped operation of the Dunes on February 1, 1956. He made numerous
inspections of the grounds and the trees during that period. He testified with reference to the
palms: Well, as I recall they were all in pretty good shape by the time they had been in the
ground. It takes a little time to establish them, but they were in pretty fair condition for the
time they had been in the ground. There was probably one or two that looked like they weren't
going to make it but I could not judge whether or not. We were not there long enough.
Referring to the olives, he testified: The Olive trees were in the general condition of Olive
trees in this country. When you ship them up and plant them, they have a shock coming up
and sometimes it takes two or three years for them to come out of it before they really look
like they are going to make it. Some of them looked like they had gone through the stages of
shock. There were a couple that did not look too well.
Schmutzer's guaranty did not extend beyond July, 1956. In accepting his testimony and the
testimony of his witnesses Lackner and Yavener and drawing reasonable inferences
therefrom, and rejecting the testimony of McBride, the court's findings were substantially
supported.
his witnesses Lackner and Yavener and drawing reasonable inferences therefrom, and
rejecting the testimony of McBride, the court's findings were substantially supported. There
was, then, a substantial compliance by Schmutzer with the terms of the planting and
landscaping contract. As to the three palms and the two olives that were in poor condition,
but with reasonable chance of recovery, and whose poor condition was due to neglect on the
part of Dunes, and at a time when Dunes was in default not only on its original contract but
also on its subsequent contract for a composition with its creditors, Schmutzer was justified
in refusing to replace them at his own expense.
Under the circumstances recited, where the conflicting evidence is that of expert and
experienced gardeners with reference to the condition of aged palm and olive trees,
transported to a territory to which they are not indigenous, we find all the more reason for
applying the rule that we shall not interfere with the findings of the trial court supported by
substantial evidence.
In view of the foregoing, it is unnecessary for us to discuss any other matters suggested by
respondents in support of their request for affirmance.
Affirmed.
____________
78 Nev. 213, 213 (1962) Northern Illinois Corp. v. Miller
NORTHERN ILLINOIS CORPORATION, a Corporation,
Appellant, v. BRUCE W. MILLER, Respondent.
No. 4478
April 18, 1962 370 P.2d 955
Appeal from the Second Judicial District Court, Washoe County, Thomas O. Craven,
Judge.
Action on an Illinois judgment. The trial court entered an order dismissing the complaint
for lack of prosecution and plaintiff appealed. The Supreme Court, McNamee, J., held that
dismissal of the action for lack of prosecution was not an abuse of discretion, where action
was not brought to trial for three years and seven months, and fact motion to dismiss was
not made until after plaintiff had requested a setting for trial did not preclude grant of the
motion.
of prosecution was not an abuse of discretion, where action was not brought to trial for three
years and seven months, and fact motion to dismiss was not made until after plaintiff had
requested a setting for trial did not preclude grant of the motion.
Affirmed.
Pike & McLaughlin, and William N. Dunseath, of Reno, for Appellant.
R. S. Flanary, of Reno, for Respondent.
1. Dismissal and Nonsuit.
Only limitation upon discretionary power of a court to dismiss a cause for delay in prosecution of an
action is that such power must not be abused. NRCP 41(e).
Dismissal of action for lack of prosecution was not an abuse of discretion, where action was not brought
to trial for three years and seven months, and fact motion to dismiss was not made until after plaintiff had
requested a setting for trial did not preclude grant of the motion. NRCP 41(e).
It was not incumbent upon defendant in moving for dismissal of an action for lack of prosecution, to
show prejudice from the delay, and with the record silent as to any excuse for delay injury would be
presumed. NRCP 41(e).
A trial court could consider merits of the action in exercising its discretion in ruling on a motion to
dismiss an action for lack of prosecution. NRCP 41 (e).
When a case had been long neglected and no adequate excuse is offered for failure to bring it to trial, an
inference arises that the case lacks merit, and a party whose case is dismissed for lack of prosecution and
who asks an appellate court to reverse the order of dismissal must see that record contains something
substantial which will justify reversal. NRCP 41(e).
OPINION
This is an action on an Illinois judgment in favor of appellant and against respondent for
the sum of $749.16. The complaint was filed in the court below on November 25, 1957. On
December 16, 1957 respondent filed an answer in which he denied that he owed any money
to appellant and, as a separate defense, alleged that on June 4, 1952 he signed an
installment contract with appellant for the purchase of an automobile; that on November
4, 1952 the automobile was sold to one Moore who signed a new contract with appellant
in which he assumed the balance due on the original contract; that at the time of the
execution of the Moore contract, appellant represented to respondent that the contract of
June 4, 1952 was thereby cancelled and void, and that appellant would look to Moore for
the balance due; that respondent believes that the Illinois judgment is based on the June
4, 1952 contract.
to appellant and, as a separate defense, alleged that on June 4, 1952 he signed an installment
contract with appellant for the purchase of an automobile; that on November 4, 1952 the
automobile was sold to one Moore who signed a new contract with appellant in which he
assumed the balance due on the original contract; that at the time of the execution of the
Moore contract, appellant represented to respondent that the contract of June 4, 1952 was
thereby cancelled and void, and that appellant would look to Moore for the balance due; that
respondent believes that the Illinois judgment is based on the June 4, 1952 contract.
On or about July 7, 1961, more than three years and seven months after the complaint was
filed below, appellant gave notice that it would bring the action for setting before the court's
calendar clerk on July 19, 1961. On July 13, 1961 respondent filed a motion to dismiss, based
on NRCP 41 (e). Appeal is from the order dismissing the complaint.
Because no stenographic report had been taken at the hearing upon the motion to dismiss,
a statement of proceeding was made by appellant pursuant to NRCP 75 (n) and approved by
the court without objection, wherein it appears that the Nevada action is upon a confession of
judgment in a sister state on a promissory note, and that in light of this disclosure by the file,
the court would dismiss the action. Thereafter upon statement by counsel for the
plaintiff-appellant that the merits of the case were not in issue in this Motion to Dismiss the
Court stated that it would nevertheless exercise its discretion upon its authority to review the
file as it did and grant the motion for dismissal.
The court in approving the foregoing statement added and included therein the following:
The court ordered the dismissal of the complaint, and said order was made and filed on
August 4, 1961 pursuant to NRCP 41 (e) and the exercise of the court's discretion as
authorized under NRCP 41 (e).
[Headnote 1]
In Harris v. Harris, 65 Nev. 342, 196 P.2d 402, we held that the only limitations upon the
discretionary power of a court to dismiss a cause for delay in its prosecution is that such
power must not be abused and "unless it is made to appear that there has been a gross
abuse of discretion on the part of the trial court in dismissing an action for lack of
prosecution its decision will not be disturbed on appeal."
power of a court to dismiss a cause for delay in its prosecution is that such power must not be
abused and unless it is made to appear that there has been a gross abuse of discretion on the
part of the trial court in dismissing an action for lack of prosecution its decision will not be
disturbed on appeal.
Appellant concedes that Harris correctly states the law, but he argues that in the exercise of
its discretion it was error for the trial court to consider the merits of the action. In support of
this contention it cites People's Home Savings Bank v. Sherman, 150 Cal. 793, 90 P. 133. In
that case a motion to dismiss was denied, it appearing among other things that the defendant
was in part to blame for the delay and that constant and repeated efforts were being made to
settle and adjust the case during all of the time. The appellate court intimated that the trial
court might properly have come to a different conclusion but, for a reversal, a gross abuse of
discretion should be made to appear which was not disclosed in the record. [T]he superior
court, in ruling upon the motion to dismiss the action for want of diligence in prosecuting the
same, could properly consider any facts appearing in the record of the case and bearing upon
the question of diligence and good faith, whether the same occurred before the action was
begun or afterwards, and that in reviewing the action of the superior court, and considering
whether or not its discretion was properly exercised, the appellate court should also take such
circumstances into consideration. This case in no manner sustains appellant's contention.
[Headnote 2]
Although it may be inferred from the statement of proceedings as approved by the court
that the court considered the nature of the action in exercising its discretion, it likewise may
be inferred that the discretion of the court was exercised in favor of dismissal because of the
delay in prosecution of three years and seven months. The motion was made on such ground
{"that the action has not been brought to trial within two years after the said action was
filed in this court"),1 and was based upon NRCP 41 {e).
(that the action has not been brought to trial within two years after the said action was filed
in this court),
1
and was based upon NRCP 41 (e). The order dismissing the complaint
recites that the court exercising its discretion under the provisions of NRCP 41 (e) grants the
motion.
[Headnote 3]
Appellant urges that respondent has shown no prejudice from the delay. It was not
incumbent upon the respondent to do so. With the record silent as to any excuse for the delay
in prosecution injury is presumed. Jackson v. DeBenedetti, 39 Cal.App.2d 574, 103 P.2d 990.
[Headnotes 4, 5]
If in fact the trial court did consider the merits of the action in exercising its discretion this
was not error. Bonelli v. Chandler, 165 Cal.App.2d 267, 331 P.2d 705. See also Knight v.
Pacific Gas and Electric Company, 178 Cal.App.2d 923, 3 Cal.Rptr. 600; Jepsen v. Sherry, 99
Cal.App.2d 119, 220 P.2d 819. If Bell v. Solomons, 162 Cal. 105, 121 P. 377, is authority to
the contrary as claimed by appellant, it has been overruled in this respect by later California
cases. Furthermore, when a case has been long neglected and no adequate excuse is offered
for the neglect, an inference arises that the case lacks merit, and a party whose case is
dismissed for lack of prosecution and who asks an appellate court to reverse the order of
dismissal must see to it that the record contains something substantial which will justify a
reversal. Horn v. California-Oregon Power Company, 221 Ore. 328, 351 P.2d 80. Nothing of
that kind appears in the record on appeal.
The fact that the motion to dismiss in this case was made after appellant had requested a
setting for trial does not, under the circumstances of this case, preclude the granting of
the motion.
____________________

1
Rule 41(e) provides in part: The court may in its discretion dismiss any action for want of prosecution on
motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after
action is filed to bring such action to trial.
does not, under the circumstances of this case, preclude the granting of the motion. Atkinson
v. County of Los Angeles, 180 Cal.App.2d 467, 4 Cal.Rptr. 423.
The judgment of dismissal is affirmed.
____________
78 Nev. 218, 218 (1962) Continental Casualty Co. v. Gardner
CONTINENTAL CASUALTY COMPANY, Appellant, v. LoLETA
GARDNER, Respondent.
No. 4447
April 20, 1962 370 P.2d 957
Appeal from the Second Judicial District Court, Washoe County, Grant L. Bowen, Judge.
Action to recover death benefits under insurance policy. The trial court entered judgment
for the deceased's widow, and the insurer appealed. The Supreme Court, Badt, C. J., held that
evidence supported finding that decedent's death, which occurred when decedent, at high
speed, failed to make turn in highway, went off road, and collided with house, was result of
bodily injury caused by accident resulting directly and independently of all other causes.
Affirmed.
Ernest S. Brown and Jack I. McAuliffe, of Reno, for Respondent.
Insurance.
Evidence supported finding that insured's death, which occurred when insured, at high speed, failed to
make turn in highway, went off road, and collided with house, was result of bodily injury caused by
accident resulting directly and independently of all other causes.
OPINION
The question presented by this appeal is whether a judgment in favor of deceased's widow,
based on an insurance policy conditioning the payment of the death benefit upon "bodily
injury caused by accident * * * resulting directly and independently of all other causes,"
finds substantial support in the evidence.
insurance policy conditioning the payment of the death benefit upon bodily injury caused by
accident * * * resulting directly and independently of all other causes, finds substantial
support in the evidence.
We have italicized the words on which defendant based its defense and under which it
asserts that it is entitled to a reversal under the evidence adduced.
Plaintiff's husband was 38 years old, of good health, six feet two inches tall, and weighed
between 225 and 250 pounds. He had been an excellent driver for many years and had never
been involved in an automobile accident or cited for a driving violation. On the morning of
the accident his car was in good condition, and he was in good spirits. He was driving along a
highway in the town of Loyalton, California, at a speed of about 10 to 15 miles an hour. As
he approached an intersection where one Lola Gilmer was stopped at a boulevard stop sign,
waiting for him to pass, he tooted his horn twice as he looked toward her and motioned to her
with one hand to come to him. She thought that he was seeking directions. As he got in front
of her, he pressed down hard on the horn and started tooting steady. Then he straightened
up and looked sort of to the side and a little bit back at an odd angle as if he was looking in
the rear-view mirror. He speeded up to 50 or 60 miles an hour. She followed him down the
highway about a fifth of a mile to a point where, failing to make a gradual right turn, he
continued straight ahead, off the road, over a ditch, knocked down a fence, bounced through a
yard, and collided with a house.
The foregoing reflects Mrs. Gilmer's testimony. Just before he left the highway, a Mrs.
Vallery saw him go past her at a real terrific speed * * * just like a bullet out of a gun. She
then saw his car collide with the fence and then the house.
Dr. Vasco A. Salvadorini was called as an expert witness for plaintiff. He had performed
an autopsy on the deceased shortly after the accident. The report thereof is an extended and
detailed document occupying three pages of single-spaced typewriting and concludes: "Cause
of death: Contusion and subarachnoid hemorrhage of the brain due to extensive
depressed fracture of the skull with multiple fractures and contusions of the body due to
trauma."
Cause of death: Contusion and subarachnoid hemorrhage of the brain due to extensive
depressed fracture of the skull with multiple fractures and contusions of the body due to
trauma.
Dr. Peter Rowe was called as an expert by defendant. The testimony of the eye witnesses
was read to him, as well as the testimony that deceased was a careful driver, continuously
engaged in business requiring him to be on the highway almost every day and for long
distances, and always kept his car in excellent condition. He was then asked if he had an
opinion as to what might have occurred at or immediately prior to [deceased's] impact with
the house which would result in behavior such as these witnesses have described on the
highway. He answered: Yes, in my opinion something went wrong with this man at the
time he passed in front of the car or stopped at the boulevard stop.
* * * * *
Now I cannot explain the erratic course of an automobile driven by a careful driver, other
than by assuming something happened to this man at the time he passed the boulevard stop,
and the inferential material that we have certainly makes spontaneous subarachnoid
hemorrhage likely, a likely explanation for this.
It is true that he subsequently referred to some of the facts appearing in the autopsy report
and some of the facts testified to by Dr. Salvadorini as affording some support to this
possibility, but it is manifest that the testimony just quoted to the effect that the erratic course
of the driver cannot be explained other than by assuming that something happened to him at
the time he passed the boulevard stop could have been given by anybody (expert in any field
or expert in no field) to whom the testimony of the eye witnesses had been read. It is true that
Dr. Rowe testified to a possible spontaneous subarachnoid hemorrhage and that he also
indicated the possibility of a saccular aneurysm. Remembering that Dr. Rowe had never seen
the body of the deceased, we turn to the testimony of Dr. Salvadorini in rebuttal. Q. Did you
examine this man's heart? A.
Yes, sir. Q. Did you find any evidence of any disease or anything abnormal with reference to
the heart? A. Well, I found no significant heart disease. He had slight arteriosclerosis of the
coronary vessels. He had a few small hemorrhages in the inner surfaces of the heart, such as
you see in injuries of this type. Q. But, in your opinion, would any heart trouble have
contributed to the death? A. I found no anatomical or histologic evidence of this. Q. Did you
find any evidence of any severe illness in this man? A. I found no organic diseases, as such.
Q. In your opinion, was there anything the matter with this man which could have contributed
to his death? A. I found no anatomical or histologic evidence of any underlying disease.
On cross-examination he testified as follows: Q. What do we mean by saccular
aneurysm?' A. It is a little dilation. Oh, when you have blown up some tire inner tubes, and all
of a sudden they puff out in one place, that is what I would call a saccular [aneurysm].
Later on in the cross-examination we find the following: A. Are you asking me if he had
a saccular aneurysm? Q. In other words, if he had such A. He didn't have one. Q. Well,
how do you know he didn't? A. Because I examined him. Q. Well, could you have told
definitely that he did not have a subarachnoid hemorrhage prior to the impact of his head at
the time the automobile struck that house? A. He did not have one. Q. How do you know
that? A. I examined the vessels, looked for it.
There was further extensive cross-examination, including questions as to the possibility of
the occurrence of a spontaneous subarachnoid hemorrhage, or a hemorrhage from a saccular
aneurysm before the car ran off the road. The doctor's positive testimony adequately disposed
of such possibilities. As to the possibility of the existence of a saccular aneurysm resulting
from a congenital defect, Dr. Rowe accepted Dr. Salvadorini's testimony as to the absence of
any such defect.
We have heretofore referred to parts of Dr. Rowe's testimony in the nature of expert
testimony: With an intracranial hemorrhage, a spontaneous subarachnoid hemorrhage, the
characteristic thing that occurs is an extended position of the body, with the head thrown
back.
hemorrhage, the characteristic thing that occurs is an extended position of the body, with the
head thrown back. This is stiff and unyielding. One can't move these people. Q. You say it
would be stiff? A. It is. Q. It is stiff? A. There is a certain amount of information in the
autopsy report that makes this likelihood more than chance. This was an obese man. Q. What
do you mean by obese?' A. He was fat. Dr. Salvadorini's written report contains evidence, or
contains the statement that he had moderate hypertrophy of the muscle of the heart. Q. Tell us
what you mean by that. A. Well, I don't mean differently than Dr. Salvadorini.
But Dr. Rowe's testimony as to the deceased's obesity was a misconception of his height as
62 inches. His actual height was six feet two inches, which gives a far different picture of
obesity or lack of obesity. In like manner, when discussing the possibility of the occurrence of
spontaneous subarachnoid hemorrhage, in the absence of injury, Dr. Rowe concedes that such
a possibility would be limited to five to ten percent of the cases, and would characteristically
be evidenced by headaches or other discomfort, all of which were absent in this case. He also
admitted that his testimony of the likelihood of such hemorrhage in the absence of injury was
based upon the deceased's bodily overweight and abnormal state of obesity. This, as we have
indicated, was not justified by the facts, although it might indeed have been so concluded
from faulty punctuation in the autopsy report. A man weighing about 230 pounds might
indeed be considered obese if he were five feet two inches tall, but not necessarily if he were
six feet two inches tall.
Appellant contends that Dr. Salvadorini's testimony was all negative and not entitled to the
weight given to positive testimony. We do not consider his testimony in that light. It is
positive testimony that certain conditions did not exist.
In Blackburn v. State, 31 Ariz. 427, 442, 254 P. 467, 472, the court, after recognizing the
rule that positive testimony is entitled to more weight than negative testimony, said: * * *
but by the latter term is meant negative testimony in its true sense and not positive
evidence of a negative, because testimony in support of a negative may be as positive as
that in support of an affirmative."
negative testimony in its true sense and not positive evidence of a negative, because
testimony in support of a negative may be as positive as that in support of an affirmative.
Such is the case here.
Respondent does not deny the proposition that if deceased had lost control of himself and
of his car by reason of a sudden heart attack, stroke or other preexisting disabling condition,
the terms of the policy would preclude recovery. Nor does appellant contend that it may
escape payment if the death resulted directly from the accident independently of any prior or
preexisting heart attack, stroke or other disabling condition. Respondent first met her burden
of proving her husband's accidental death. Appellant then sought, through the testimony of
the two eye witnesses and Dr. Rowe, to prove that an independent cause, a pre-existing
physical disease, contributed to the death. Respondent met this challenge by the positive
testimony of Dr. Salvadorini.
Appellant in urging a reversal relies on language quoted from a number of opinions. The
cases cited however are clearly distinguishable. In virtually all such cases it clearly appeared
that the plaintiff had a preexisting disease or disability that contributed to the injury.
Appellant contends that physical facts and the laws of nature cannot be refuted by
testimony, and that the physical facts in this case show conclusively that the erratic driving of
the car compels the conclusion reached by Dr. Rowe. Conceding the premises, the conclusion
does not follow. In New York Life Insurance Co. v. Doerksen, 10 Cir., 64 F.2d 240, on which
appellant relies, the court on the second trial, 10 Cir., 75 F.2d 96, 99, said: Since a car in
good mechanical condition does not ordinarily leave a level highway in broad daylight if
driven by one in full possession of his faculties, a jury might well conclude from these facts
that the accident was caused by some untoward incident, such as a wasp or a bee, the lighting
of a cigar or the sudden appearance of a calf or chicken in the road, distracting the attention of
the driver. Many other distractions could occurthe adjusting of a clock, the tuning of a
radio, the inspection of a road map {Mrs.
adjusting of a clock, the tuning of a radio, the inspection of a road map (Mrs. Gilmer thought
the deceased was seeking road directions), that he was trying to release a stuck accelerator, or
other activity.
All the elements discussedthe testimony of the two eye witnesses, the conclusions of Dr.
Rowe, the positive testimony of Dr. Salvadorini, the report of the autopsy, the absence of any
existing physical or mental diseaselead to the conclusion that a factual issue was presented
to the jury, whether the decedent's death was the result of bodily injury caused by accident
resulting directly and independently of all other causes. The jury's verdict finds substantial
support in the evidence.
Appellant urges further that if deceased was in possession of his physical health and
mental qualities, we must assume that he knowingly drove off the highway at the curve with
knowledge of the damage that would result, and that such result was therefore not an accident
but occurred because he was deliberately violating the law, and a recovery would be against
public policy. It also contends that such a deliberate driving of the car off the highway was
outside the scope of his employment, in which case recovery would be barred by a clause in
the policy. We find no merit in either of these contentions.
Affirmed.
McNamee, and Thompson, JJ., concur.
____________
78 Nev. 224, 224 (1962) Ballin v. Ballin
ROBERT W. BALLIN, Appellant, v.
MARY W. BALLIN, Respondent.
No. 4467
April 27, 1962 371 P.2d 32
Appeal from judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Proceeding on motion by divorced husband to substantially reduce or terminate installment
payments for support and maintenance of former wife. The lower court ruled that it lacked
jurisdiction and husband appealed. The Supreme Court, Thompson, J., held that divorce
decree which approved property settlement agreement, providing for installment
payments for wife's support, and which directed that agreement survive decree did not
constitute installment judgment for alimony and support, court could not reduce or
terminate payments and statute providing for merger into decree of agreement adopted
by court was inapplicable.
appealed. The Supreme Court, Thompson, J., held that divorce decree which approved
property settlement agreement, providing for installment payments for wife's support, and
which directed that agreement survive decree did not constitute installment judgment for
alimony and support, court could not reduce or terminate payments and statute providing for
merger into decree of agreement adopted by court was inapplicable.
Judgment affirmed.
George Rudiak, of Las Vegas, for Appellant.
Morse & Graves, of Las Vegas, for Respondent.
1. Divorce.
Statute to effect that divorce decree ratifying, adopting or approving contract executed by husband and
wife by reference thereto, shall have effect as though contract had been copied into decree, eliminated
distinction between ratification or approval of agreement by court and its adoption of it, and provided for
merger of agreement into decree. NRS 123.080, subd. 4.
2. Divorce.
Support clause in property settlement agreement survives subsequent divorce decree if parties so
intended, and if court directs such survival.
3. Divorce.
Divorce decree, which approved property settlement agreement, providing for installment payments for
wife's support, and which directed that agreement survive decree did not constitute installment judgment
for alimony and support, court could not reduce or terminate payments and statute providing for merger
into decree of agreement adopted by court was inapplicable. NRS 123.080, subd. 4, 125.170.
OPINION
By motion, Robert Ballin sought to substantially reduce, or terminate installment payments
for the support and maintenance of his former wife Mary. The lower court ruled that it lacked
jurisdiction to do so. Robert Ballin appeals. We shall refer to the parties as Robert and Mary.
On March 21, 1956 Robert and Mary entered into a written agreement wherein it was
recited that the parties desire to enter into Articles of Separation to settle their property
and financial rights, to agree on amounts to be paid by the husband for the maintenance
and support of the wife, * * *, and to remove all such matters from litigation."
parties desire to enter into Articles of Separation to settle their property and financial rights,
to agree on amounts to be paid by the husband for the maintenance and support of the wife, *
* *, and to remove all such matters from litigation. Each party was separately represented by
counsel in negotiating and consummating the agreement. The agreement provided, in separate
paragraphs, for the disposition and settlement of their real property, the disposition and
settlement of their personal property, other than cash and securities, a payment to the wife of
a lump sum based upon a disclosure of the value of the cash and securities belonging to the
husband, and for the future handling of certain life insurance policies. In addition to the
foregoing, the agreement provided: The husband shall pay to the wife for her support and
maintenance until she dies or until she remarries, whichever occurs first, the sum of sixteen
thousand dollars ($16,000.00) per annum, payable in monthly installments of $1,333.33 in
advance on the first of each month * * *. The support payments provided to be made to the
wife hereunder, together with the transfers of property and principal payments provided for
hereunder, shall be in full settlement and discharge of the wife's right to support and
maintenance * * *.
Furthermore, the agreement provided that it was to be construed under New York law, and
that it could not be altered or modified except in writing and executed with the same
formality of this Agreement by both parties.
Finally the agreement provided: Nothing herein contained shall be construed to bar or
prevent either party from suing for absolute divorce in any jurisdiction of the United States. In
the event such a proceeding is instituted, it is agreed that this Agreement and the provisions
hereof shall be incorporated by reference or otherwise in, and made a part of, any judgment or
decree of divorce granted in such suit. Notwithstanding the incorporation of this Agreement
in any such decree or judgment, this Agreement shall not be merged in such decree or
judgment, but shall survive the same and shall be binding and conclusive on the parties
hereto, their heirs, executors, administrators and assigns for all time."
their heirs, executors, administrators and assigns for all time.
Following consummation of said agreement, Mary came to Nevada, and on May 4, 1956,
filed suit for divorce. Her complaint requested, among other things, that the property
settlement agreement entered into by and between the parties hereto on the 21st day of March,
1956 be ratified, approved, and confirmed to survive a decree of divorce entered herein.
Robert, through an attorney duly authorized, answered the complaint. On May 4, 1956, after
trial, the court entered a decree of divorce wherein it provided that the certain property
settlement agreement entered into by and between the parties hereto on the 21st day of March,
1956 be ratified, approved and confirmed to survive this decree of divorce. The said decree
did not contain a specific order directing Robert to pay Mary the monthly installment
payments provided for by their agreement. Jurisdiction to modify the decree as to payments
for the support and maintenance of Mary was not expressly reserved.
Whether the lower court was correct in deciding that it lacked jurisdiction to grant Robert
the relief requested requires us to determine the following question. Does the decree of
divorce, which approved and ratified an agreement containing an installment payment
provision for the wife's support, and also directing that such agreement shall survive the
decree entered, constitute an installment judgment for alimony and support within NRS
125.170?
1

We have not heretofore had occasion to consider the legal consequences flowing from
such a decree. Robert here contends that the lower court's action in approving and ratifying
the agreement had the legal effect of merging the agreement into the decree, with the
result that an installment judgment for alimony was entered.
____________________

1
The respondent, Mary, contended that the installment support provision should be considered as part of the
property settlement, and not alimony or support, citing Krick v. Krick, 76 Nev. 52, 348 P.2d 752. In the Krick
case the decree, by express language, provided that the monthly payments were a part of the property settlement
and a part of the consideration received by the wife for her release of a community interest in a business. The
agreement contains no such provision in the instant case. A fair reading of it compels the conclusion that the
monthly support provision is in addition to the property disposition provided for in separate paragraphs and is
completely independent thereof.
and ratifying the agreement had the legal effect of merging the agreement into the decree,
with the result that an installment judgment for alimony was entered. This being so, he then
urges upon us that, by statute, NRS 125.170, jurisdiction to modify such installment judgment
existed even though not expressly reserved.
2
On the other hand, Mary insists that the decree
before us did not expressly direct Robert to make installment payments for her support; that
mere approval and ratification of the agreement does not have the legal effect of merging the
agreement into the decree, where there is a survival provision; that an installment judgment
for alimony was not entered; that, in any event, the parties clearly stated their intention by an
express provision in the agreement, that it could be modified only by mutual consent and not
otherwise. In brief, Robert believes his rights, if any, are fixed by a judgment which is subject
to modification by the court which entered it, while Mary contends that the agreement only
defines their rights, with the result that no judgment exists regarding alimony which is subject
to modification. We must resolve these contentions.
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.
____________________

2
Robert based his motion to modify as to installments of alimony not accrued, upon NRS 125.170 as it
existed before the 1961 amendment, his motion having been filed before that amendment became effective. Such
amendment provided that installment judgments for alimony and support of the wife shall not be modified as to
installments not accrued at the time the motion is filed, unless the court expressly retained jurisdiction for such
modification. Before such amendment, this court in Folks v. Folks, 77 Nev. 45, 359 P.2d 92, held that such an
installment judgment was subject to modification upon production of proper evidence, even though jurisdiction
to do so had not been expressly reserved. Whether the 1961 amendment could be retrospectively applied to this
case, was briefed and argued. However, our disposition of this appeal does not require a determination of this
point.
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. To this extent, at least, Finley appears to be inconsistent with
Lewis.
In any event, it is reasonably clear that as of the date of Finley v. Finley, supra, the mere
approval or ratification of an agreement made by the parties would not make it a part of the
judgment or decree of divorce.
However, in 1953 the legislature amended sec. 3374, 1929 NCL, 1941 supp. (now NRS
123.080) by adding a new paragraph (now NRS 123.080(4)) reading: 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.
[Headnote 1]
We believe that this amendment accomplished two things. First, it declared the legislative
intent to eliminate the distinction theretofore existing between a ratification or approval of an
agreement by the court, and its adoption of it. Second, it provided for the merger of an
agreement which had been either ratified, or adopted, or approved by the court, into the
decree entered, for we consider the language as though the contract were copied into the
decree, or attached thereto, to mean a merger.
merger. Though this be true, it is our opinion that NRS 123.080(4) does not govern the
disposition of the case before us. Here the parties specifically provided by their agreement
that it shall not be merged in any decree or judgment, but shall survive the same and shall be
binding and conclusive on the parties hereto, their heirs, executors, administrators and assigns
for all time. In addition, they particularly specified that their agreement could not be altered
or modified except by a further written agreement. Furthermore, the decree entered did not
merely approve their agreement; it expressly directed that the agreement survive. Under such
circumstances, it would be manifestly improper to invoke the concept of merger.
The effect, if any, of NRS 123.080 (4) upon a Nevada decree which approves an
agreement, but directs that it shall survive was considered by the Connecticut Superior Court
in Curtis v. Curtis, 22 Conn.Sup. 349, 173 A.2d 137, 139, affirmed by the Supreme Court,
148 Conn. 733, 173 A.2d 140. The court stated:
The plaintiff seeks to avoid the effect of the language in the decree by relying on
123.080 of the Nevada Revised Statutes, which provides in part as follows: 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.'
[Headnote 2]
By the terms of this statute it is undoubtedly true that if the agreement had been
submitted, as it was, to the Nevada court and had the court approved' it, as it did, and had
said nothing further with reference thereto, the agreement would have become a part of the
decree and would now be enforceable as a foreign judgment. However, the Nevada court
went further with the provision that although it approved of the agreement it is to be
recognized as a continuing agreement and not merged in the decree.
merged in the decree. It seems to this court that it would be an anomaly to enforce the Nevada
decree as such contrary to the very provisions of the decree. We agree with the Connecticut
court. To hold otherwise would be to disregard not only the expressed intention of the parties,
but the decree itself approving such intention. 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.
3

[Headnote 3]
The appellant, Robert, has cited the following cases in support of his contention that where
a court has the power to modify as to installments not accrued, a provision in an agreement,
adopted by the court prohibiting such a modification, is void. Simpson v. Superior Court, 87
Ariz. 350, 351 P.2d 179; Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265; Adler v.
Adler, 373 Ill. 361, 26 N.E.2d 504; Miller v. Miller, 317 Ill.App. 447, 46 N.E.2d 102; Parmly
v. Parmly, 125 N.J.Eq. 545, 5 A.2d 789; Prime v. Prime, 172 Ore. 34, 139 P.2d 550. None of
those cases involved a decree expressly directing survival of the agreement. Had the decree
before us not directed survival of the agreement, we would be required to determine what
effect should be accorded the provision of the approved agreement that modification could
occur only by further written agreement. It is evident that such a determination is not required
in this case.
Robert further insists that Nevada has recognized that the spouses' agreement is not
binding upon the court in the original divorce proceedings. This is unquestionably true. Lewis
v. Lewis, 53 Nev. 398, 2 P.2d 131; Drespel v. Drespel, 56 Nev. 36S
____________________

3
It is of interest to note that Nevada's policy has been to enforce the parties' intention, if possible, in
post-divorce proceedings. In Aseltine v. District Court, 57 Nev. 269, 62 P.2d 701, where the agreement merged
into the decree, it was stated that it was the intention of the court that the intention of the parties, as expressed
in the agreement, should be made effective. Accordingly, it was held that the court had jurisdiction to entertain
the former husband's request to modify as to alimony because the agreement which had merged into the decree,
indicated such to be the parties' intent; the fact that the decree did not specifically reserve jurisdiction made no
difference under such circumstances.
Drespel, 56 Nev. 368, 45 P.2d 792, 54 P.2d 226. He suggests that we should extend that
doctrine to permit a post-divorce revision of a nonmerged agreement. We decline to do so.
The distinction between the court's power in the original divorce proceeding either to accept
or reject, in whole or in part, the support agreement offered, and its power to revise it
following approval and the direction that it survive the decree is clear.
We therefore conclude that NRS 123.080 (4) does not apply to a decree directing survival
of an approved agreement; that the installment payment provisions of the agreement survive
such decree; that the post-divorce level of support is controlled by the agreement; that the
decree does not constitute an installment judgment for alimony and support within NRS
125.170; and that the lower court did not have jurisdiction to grant the relief requested.
Affirmed.
____________
78 Nev. 232, 232 (1962) Poirier v. Dental Examiners
H. M. POIRIER, Doing Business as PIONEER DENTAL LABORATORY, Appellant, v.
BOARD OF DENTAL EXAMINERS OF NEVADA, Consisting of Ross Whitehead, Morris
Gallagher, Howard Woodbury, Vincent Sanner, Stephen Comish, A. A. Cozzalio and David
W. Melarkey, Respondent.
No. 4434
April 30, 1962 370 P.2d 960
Action to enjoin individual doing business as dental laboratory from advertising that he
could or would perform certain acts allegedly constituting practice of dentistry. The lower
court entered judgment granting permanent injunction, and the individual appealed. The
Supreme Court, McNamee, J., held that even if defendant's answer to question whether
he had performed work on inanimate objects as dental lab technician without written
prescription should have been excluded because of defendant's claim of privilege against
self-incrimination, admission of answer was not prejudicial where individual was purged
of any contempt, and other evidence was legally sufficient to sustain the injunction.
Supreme Court, McNamee, J., held that even if defendant's answer to question whether he
had performed work on inanimate objects as dental lab technician without written
prescription should have been excluded because of defendant's claim of privilege against
self-incrimination, admission of answer was not prejudicial where individual was purged of
any contempt, and other evidence was legally sufficient to sustain the injunction.
Affirmed.
Harry A. Busscher, of Reno, for Appellant.
Goldwater, Taber and Hill, and Cooke & Roberts, of Reno, for Respondent.
1. Injunction.
Injunction restraining individual doing business as dental laboratory from advertising that he could
perform dental operations or repair dental plates, from diagnosing or treating diseases or lesions of oral
cavity, from taking impressions in oral cavity, from supplying artificial teeth, from performing mechanical
work on inanimate objects without written prescription, and from engaging in practice of dentistry did not
exceed scope of the Nevada Dental Act or include matters not supported by record. NRS
631.010-631.400.
2. Statutes.
Nevada Dental Act was not unconstitutional attempt to regulate dental laboratories and dental technicians
without indication of such regulation in title. NRS 631.010-631.400.
Provisions of Nevada Dental Act were not unreasonable exercise of police power. NRS
631.010-631.400.
Even if answer of individual doing business as dental laboratory to question whether he had performed
work on inanimate objects as dental lab technician without written prescription should have been excluded
because of claim of privilege against self-incrimination, admission of answer was not prejudicial where
individual was purged of any contempt, and other evidence was legally sufficient to sustain injunction
against him. NRS 631.010-631.400.
OPINION
This is an action brought to enjoin appellant from advertising that he can or will perform
certain acts which allegedly constitute the practice of dentistry.
The record shows that on the hearing for a preliminary injunction before the Honorable
Gordon W. Rice, District Judge, certain advertising from the current telephone directory and
from the Washoe County newspapers was received in evidence, together with the testimony
of witnesses. As a result of said hearing the lower court issued a preliminary injunction
restraining appellant from advertising that he could or would perform dental operations of any
kind, or that he could correct malpositions of the teeth or jaws, take impressions, or do any
practice included in the curricula recognized in dental colleges, or perform mechanical work
on inanimate objects without a written prescription from a licensed dentist.
Thereafter, appellant was ordered to show cause why he should not be punished for
contempt for his failure to obey said preliminary injunction. The contempt hearing was before
the Honorable Clel Georgetta, District Judge, and evidence, both oral and written, was
admitted. The parties thereupon stipulated in writing that the proceedings, testimony, and
exhibits offered during the hearings in the above-entitled case shall be considered as a trial
upon the merits, to the end that all issues raised by the complaint, answer, and motions
presented herein be finally determined and a final judgment entered.
Pursuant to said stipulation the lower court found that appellant had never been licensed to
practice dentistry, and entered judgment granting the permanent injunction prayed for. Appeal
is from said judgment. The permanent injunction enjoins and restrains appellant from:
[Headnote 1]
1. Advertising or permitting to be advertised by any media that he can or will attempt to
perform dental operations of any kind, or that he can or will repair, reline, or rebuild dental
plates.
2. Diagnosing, professing to diagnose, treating, or professing to treat, any of the diseases
or lesions of the oral cavity, teeth, gums, or the maxillary bones.
3. Taking impressions in the mouth or oral cavity of people for the purpose of relining,
altering, making or repairing dentures, or directing that such impressions be taken.
4. Supplying artificial teeth as substitutes for natural teeth, or placing in the mouth and
adjusting such substitutes or directing that such be done.
5. While performing the services of a dental laboratory technician, from performing
mechanical work on inanimate objects without first obtaining a written prescription from a
dentist licensed to practice in Nevada for such mechanical work.
6. From engaging in the practice of dentistry as defined by the Nevada Dental Act.
It is apparent that the acts enjoined are substantially the same as those enjoined in the
recent case of Ambrose v. Board of Dental Examiners, 78 Nev. 130, 369 P.2d 672. Appellant
here urges that the injunctive order exceeds the scope of the statute and includes matters
which are not supported by the record. The same argument was made in Ambrose and
rejected.
[Headnotes 2, 3]
Appellant attacks the constitutionality of the Nevada Dental Act (NRS 631.010-631.400)
on two grounds:
(a) That it attempts to regulate dental laboratories and dental technicians, and that the title
of the act gives no such indication. In Ambrose, we held that such attack is without merit.
(b) That the provisions of the act are an unreasonable exercise of the police power. The
case of State v. Anderson, 54 Wash.2d 156, 338 P.2d 740, and cases cited therein, accurately
point out that this objection is not well taken. Accord, Thrasher v. Board of Governors, 359
P.2d 717 (Okla. 1961). The case of Berry v. Summers, 76 Ida. 446, 283 P.2d 1093, has been
cited in many cases as representing a contrary view. Even if such be so, the case of Perry v.
Koehler, 369 P.2d 1010 (Idaho 1962), establishes Idaho as now in accord with State v.
Anderson, supra.
[Headnote 4]
As a final ground for reversal appellant contends that self-incriminating evidence was
admitted into the record over his objection.
During the contempt hearing appellant was asked, while being examined as an adverse
witness, whether he had performed work on inanimate objects as a dental lab technician
without a written prescription of a licensed dentist. His attorney, claiming the privilege
against self-incrimination, objected to the question upon the ground that appellant was being
asked to testify with respect to a matter which, if answered in the affirmative, would
constitute a misdemeanor under the Nevada Dental Act. The trial court ultimately permitted
respondent's counsel to proceed with this line of questioning, with the understanding that
appellant's objection went to this entire line of testimony. If we assume that the testimony
thereupon given by the appellant should have been excluded in view of the objection raised
and that it was error for the trial court to consider the same, the admission of such testimony
was not prejudicial to the appellant because:
First, appellant was purged of any contempt when it was shown to the lower court that he
had not been personally served with a copy of the preliminary injunction; and
Second, this was an action to enjoin appellant from advertising as aforesaid. It was
stipulated that all the proceedings, testimony, and exhibits could be considered by the court in
rendering its final judgment on the merits. The advertising from a telephone directory and
from the two Reno newspapers was before the trial court as evidence at the time it rendered
its decision and judgment. It had been received in evidence upon stipulation of the parties at
the hearing on the motion for a preliminary injunction. This evidence in itself is legally
sufficient to sustain the injunction. It consisted of advertising free dental services, which is
defined as dishonorable and unprofessional conduct under the Nevada Dental Act, and
advertising the performance of dental operations, to wit, the repairing, relining, and
rebuilding of dental plates, which constitutes the practice of dentistry under said act.
of dental plates, which constitutes the practice of dentistry under said act. Board of Dental
Examiners v. Jameson, 64 Cal.App. 614, 149 P.2d 223.
There being no prejudicial error, the judgment is affirmed.
Badt, C. J., and Waters, D. J., concur.
Thompson, J., being disqualified, the Governor designated Honorable Richard L. Waters,
Jr., Judge of the First Judicial District, to sit in his stead.
____________
78 Nev. 237, 237 (1962) Ex Parte Havas
In the Matter of the Application of VICTOR
HAVAS for a Writ of Habeas Corpus.
No. 4500
May 7, 1962 371 P.2d 30
Original petition for writ of habeas corpus.
Proceeding by petitioner who was held in contempt for refusal to comply with a district
court judgment. The Supreme Court, Badt, C. J., held that court was without jurisdiction to
cite defendant in a replevin action for contempt for failure to deliver an automobile, where
court although having sufficient data for entry of a judgment requiring in the alternative,
delivery of the automobile, or its value in case delivery could not be had, as required by
replevin statute, instead entered judgment requiring defendant to deliver the automobile to
plaintiff with no alternative.
Petitioner discharged from custody.
Magleby & Posin, of Las Vegas, for Petitioner.
Roger D. Foley, Attorney General, John F. Mendoza, District Attorney, Charles L.
Garner, Deputy District Attorney, Clark County, for Respondent.
1. Replevin.
In a replevin action, if property is in possession of defendant, value thereof must always be found in the
verdict, and the judgment must be in the alternative that plaintiff recover property sued for, or in
case delivery cannot be had, then its value, and it is not optional with plaintiff in such
case to the judgment for value of the property absolutely.
property sued for, or in case delivery cannot be had, then its value, and it is not optional with plaintiff in
such case to the judgment for value of the property absolutely. NRS 17.120.
2. Contempt.
Court was without jurisdiction to cite defendant in a replevin action for contempt for failure to deliver an
automobile, where court although having sufficient data for entry of a judgment requiring in the alternative,
delivery of the automobile, or its value in case delivery could not be had, instead entered judgment
requiring defendant to deliver the automobile to plaintiff with no alternative. NRS 17.120.
3. Replevin.
A judgment for plaintiff in a replevin action is enforceable only by execution. NRS 17.120, 21.050.
OPINION
Petitioner asserts that he is unlawfully deprived of his liberty under a commitment of the
Eighth Judicial District Court, Clark County, Nevada, committing him to jail for contempt of
court for having willfully refused to comply with the judgment and order of [said] court
entered on December 27, 1961, requiring Defendant, Vic Havas, to forthwith return to
Plaintiff a certain automobile, for which the plaintiff Junius Anderson sought possession in a
replevin action in said court, and for his misconduct and willful failure to comply with said
Court Order and Judgment. He therefore seeks his release from custody.
Although, as hereinafter appears, our order for the release of petitioner is based upon the
ground that under our statutory requirements the court was without jurisdiction to commit
petitioner for contempt, we recite, first, the following chronological order of events to give a
picture of the proceedings below.
On May 26, 1960, one Junius Anderson filed a complaint to replevy from Havas a 1957
Oldsmobile. No delivery under the provisional remedy of claim and delivery was at the time
sought or obtained. The case was tried, and on December 27, 1961, judgment was entered by
the trial court in which it was ordered that defendant return to plaintiff forthwith the 1957
Oldsmobile, and that defendant further pay to plaintiff a certain $300 deposit made by
plaintiff to defendant, and that in turn plaintiff reimburse defendant for moneys paid to
clear a bank encumbrance against said Oldsmobile,1 less a credit for a returned insurance
premium received by defendant and less a credit for the said $300 deposit.
certain $300 deposit made by plaintiff to defendant, and that in turn plaintiff reimburse
defendant for moneys paid to clear a bank encumbrance against said Oldsmobile,
1
less a
credit for a returned insurance premium received by defendant and less a credit for the said
$300 deposit. On the same date notice of the entry of judgment was served upon Havas's
counsel and on the following day plaintiff's attorney addressed a letter to petitioner's attorney
asking the latter to verify the bank payoff balance and the returned insurance premium, so that
arrangements could be made to pay the resulting balance, and request was made for the
delivery of the automobile and the adjudicated costs. This letter was received by petitioner's
counsel December 30, 1961, and was followed by a telephone conversation in which there
was discussed the consideration of an appeal and, in such event, the amount of a supersedeas
bond.
On January 8, 1962, the judge of the district court signed an instrument entitled Writ of
Restitution, in which the sheriff was directed and ordered to take possession of the
automobile and return the same to the plaintiff in the replevin suit. Such writ was not filed
with the clerk nor was any process issued by him. Havas was in California at the time and
said writ was not personally served on him. On January 10, 1962, notice of appeal was filed,
and on the same day the parties stipulated in writing that whereas Havas had appealed to the
supreme court from the final judgment the said judgment may and shall be stayed upon
defendant's filing a supersedeas bond or undertaking in the amount of $2500.00 * * *. On
January 18, 1962, the district court issued its order to show cause why Havas should not be
punished for contempt. Hearing was had on said order on January 24, and Havas was found
guilty of contempt and ordered to be confined in the county jail for ten days and pay a fine of
$300. It does not appear that at such hearing a return of the said Writ of Restitution was
made.
____________________

1
The delivery of the Oldsmobile and the $300 deposit were on account of the purchase of a 1959 Pontiac
automobile by Anderson from Havas. The dispute over that transaction is involved in the pending appeal from
the judgment.
Although Havas presents several assignments of error growing out of the issuance of the
contempt order under the circumstances above outlined, we need consider only one: that the
court was without jurisdiction to cite him for contempt for failure to deliver the Oldsmobile
as ordered in the judgment, because the court failed to follow the mandatory statutory
proceedings in replevin actions. As we have indicated, this assignment is well taken.
NRS 17.120 reads in part as follows: Replevin; judgment to be in alternative and with
damages. 1. In an action to recover the possession of personal property, judgment for the
plaintiff may be for the possession or the value thereof, in a case a delivery cannot be had,
and damages for the detention or the value of the use thereof. * * *
2

[Headnote 1]
This statute was first construed by this court in Lambert v. McFarland, 2 Nev. 58
(combined Vols. 1-2 Nev. 581), wherein plaintiff sought to recover 128 head of cattle and
$1,000 damages. The cattle had remained in possession of defendant. The jury found a
verdict for the plaintiff, and assess[ed] the damages at $3,130, and judgment was entered
accordingly. This court in reversing said: The verdict and judgment are clearly erroneous,
and must be reversed. In an action of replevin, * * * if the property be in the possession of the
defendant, the value of the property must always be found in the verdict, and the judgment
must be in the alternative that the plaintiff recover the property sued for, or in case delivery
cannot be had, then for its value. It is not optional with the plaintiff in such case to take
judgment for the value of the property absolutely. The court then referred to the statute
governing executions for the enforcement of judgments. We turn to our present statute, NRS
21.050. Where a judgment requires the payment of money or the delivery of real or
personal property, the same shall be enforced in those respects by execution.
____________________

2
This provision originated in 1869 (Stats. 1869, ch. 8, sec. 202, p. 228) and has remained on our statute
books without material change ever since.
money or the delivery of real or personal property, the same shall be enforced in those
respects by execution. * * *
3

In Carson v. Applegarth, 6 Nev. 187 (combined Vols. 5-6-7 Nev. 513) this court, citing
Lambert v. McFarland, supra, said that the statute contemplated first, the verdictthe basis;
next, the judgment; next, the execution, all in the alternative in cases similar to the present
[suit for replevin]. It said: To the defendant * * * always belongs the right, if the property
has not been delivered, to deliver it himself; and in such case, it is not at plaintiff's option to
take the property or its value * * *. The jury should have rendered an alternative verdict * * *.
This is a point upon which there is no conflict of authority: * * * The judgment of the district
court and its order refusing a new trial are reversed, and the cause remanded. Accord:
Buckley v. Buckley, 12 Nev. 423, 429; Hanchett v. Humphreys, C.C., 84 F. 862.
[Headnotes 2, 3]
The record contains evidence from which the court could have fixed the value of the
Oldsmobile that was the subject of the replevin action, thus affording to the court sufficient
data for a judgment requiring, in the alternative, the delivery of the automobile, or its value,
in case delivery could not be had, and damages for its unlawful detention. NRS 17.120. It was
enforceable only by execution. NRS 21.050. As neither the judgment nor the Writ of
Restitution followed the mandatory requirements of the statute, the contempt proceedings
based thereon were beyond the power and jurisdiction of the court.
____________________

3
Rule 70, NRCP, deals with the power of the court in enforcing certain kinds of judgments in various ways,
including execution of a conveyance by a third party in the name of the defendant, issuance by the clerk of writs
of attachment or sequestration and, in proper cases, a judgment of contempt against the disobedient defendant.
The contempt provision of Rule 70 does not apply to repelvin actions. The last sentence of that rule provides
that the party in whose favor a judgment for delivery or possession is entered is entitled to a writ of execution or
assistance upon application to the clerk.
The petitioner is entitled to his release under the writ of habeas corpus and it is so ordered.
It appearing that petitioner was heretofore by this court released on bail, it is further ordered
that his bail be exonerated.
____________
78 Nev. 242, 242 (1962) Cosner v. Cosner
INEZ I. COSNER, Appellant, v. BYRLE L.
COSNER, Jr., Respondent.
No. 4435
May 9, 1962 371 P.2d 278
Appeal from the Second Judicial District Court, Washoe County; Jon R. Collins, Judge.
Action by husband for divorce. From a judgment of the trial court granting husband a
divorce and dividing custody of minor children, the wife appealed. The Supreme Court,
McNamee, J., held that award of custody of children results from conclusion of law rather
than a finding of fact and determination of issue of custody by master to whom a divorce case
had been referred was advisory only and trial judge had right to disregard it.
Affirmed.
Cantwell, Loomis & Murphy, and Stanley H. Brown, of Reno, for Appellant.
Bruce D. Roberts, of Reno, for Respondent.
1. Divorce.
Award of custody of children results from conclusion of law rather than a finding of fact and
determination of issue of custody by master to whom a divorce case had been referred was advisory only
and trial judge had right to disregard it. NRCP 53.
2. Infants.
There is presumption on appeal in child custody cases that trial court has properly exercised its judicial
discretion in determining what is for best interests of child.
3. Reference.
Constitutional power of decision vested in trial court in child custody cases can be exercised only by duly
constituted judge, and that power may not be delegated to a master or other subordinate official of the
court. NRCP 53.
OPINION
This is a divorce action commenced by the husband (respondent) which was referred to a
master on stipulation of counsel.
1
The complaint alleges extreme cruelty as the ground for
divorce and requests custody of the two minor girls who, at the time of the decree, were 12
and 10 years of age. Appellant's answer denies the allegation of cruelty and asks that custody
of the children be awarded to her. After hearing the evidence the master made and filed his
report, recommending that a divorce be granted respondent and the custody of the children be
awarded to appellant. Formal findings and conclusions to this effect were presented to the
lower court with such recommendations, but no transcript of the testimony was made or
presented. Objections to the report were made by respondent and the lower court sustained
such objections insofar as full custody was given to the appellant wife. The court then, after
finding that both parties were fit and proper persons to have custody of the minor children
(which was in accord with the master's report), awarded the custody of the children to
respondent during the school months and to appellant during the summer vacation months of
each year, and provided for alternate custody on certain holidays. Appellant has appealed
from this portion of the decree relating to custody. She assigns as error the refusal of the
lower court to adopt the report of the master without modification, and of its modification of
the findings of fact, conclusion of law, and decree as proposed by the master, which
modification provides for divided custody of the children.
____________________

1
Although the parties stipulated to the reference, they did not stipulate that the master's findings of fact would
be final.
It must be determined therefore what effect a trial court must give to the report of a master
appointed pursuant to NRCP 53.
The master's report contained the substance of the proceedings and evidence and recites
that the younger child favored staying with her father; that the older child is mentally retarded
but she indicated that she was very fond of both her father and mother; that when the parties
separated in June 1960, the father took both children with him to Nevada and that the wife
did not know the whereabouts of the children until the divorce action was commenced. There
was evidence that during the time the husband had cared for the children in Nevada his
treatment of them was excellent and he had placed the older child in a special school for
handicapped children. The husband testified that the wife had on occasion mistreated the
children and there was evidence from which it could be inferred that the husband did
likewise, but this evidence can be disregarded in view of the finding that both parties were fit
and proper persons to have custody of the children and that both parties appeared to be
devoted parents. The wife planned to establish and operate a home for elderly women and
thereby be with the children as much as possible. The husband testified that he believed his
unmarried sister could be with the children while he was at work. The master believed that
the preference of the younger child, born December 22, 1950, to remain with her father was
primarily due to her being separated from her mother for a long period of time. Under such
circumstances, the report continued, the writer feels forced to conclude that all things
considered it is for the best interests of the two minor children to be in the custody of their
mother.
Despite these findings and conclusions the trial court determined that the divided custody,
as aforesaid, was for the best interests of the children.
NRCP 53(e) (2) provides: In an action to be tried without a jury the court shall accept the
master's findings of fact unless clearly erroneous. Appellant argues that the determination of
custody by the master was a finding of fact, and since it is not "clearly erroneous," the trial
court was required to accept this determination.
finding of fact, and since it is not clearly erroneous, the trial court was required to accept
this determination.
Respondent maintains, however, that the determination of the fitness of both parties to
have custody of the children constitutes the finding of fact in this regard and that the award of
custody in accordance with the best interests of the children is the legal conclusion resulting
from that finding.
[Headnote 1]
In Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98, we stated that the lower court abused its
discretion in concluding that the interests of the children would best be served by awarding
their custody to the mother. The inference from such statement is obviousthat the award of
custody results from a conclusion of law rather than a finding of fact.
[Headnote 2]
In this case two ultimate decisions had to be made. One was whether from a determination
of the facts a divorce should be granted, and the other was the disposition of the custody of
the children. Both of these were legal determinations, were not questions of fact, and the
ultimate decision necessarily rested with the trial court. It is not questioned that the evidence
was sufficient to justify the granting of a divorce to respondent. Likewise, 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. 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. Rea v. Rea, 195
Ore. 252, 245 P.2d 884, A.L.R.2d 612.
[Headnote 3]
The constitutional power of decision vested in a trial court in child custody cases can be
exercised only by the duly constituted judge, and that power may not be delegated to a master
or other subordinate official of the court. See: Rae v. Rae, supra; Bowler v. Bowler, 351
Mich. 398, 88 N.W.2d 505. If a master attempts to determine the issue of custody, his
determination would be advisory only, and the trial judge has the right to disregard it.
determine the issue of custody, his determination would be advisory only, and the trial judge
has the right to disregard it. See: Prouty v. Prouty, 16 Cal.2d 190, 105 P.2d 295; D.M.W.
Contracting Co. v. Stolz, 81 U.S.App. D.C. 334, 158 F.2d 405. Under these principles and
authority, we conclude that NRCP 53 does not purport to authorize the delegation to a master
of the court's power to adjudicate custody.
The trial court having jurisdiction to adjudicate custody independent of the action of the
master, and having done so, and there being no showing of an abuse of judicial discretion, the
judgment must be affirmed.
Affirmed. No costs allowed.
____________
78 Nev. 246, 246 (1962) Bower v. Landa
DAVID M. BOWER, GEORGE H. BOWER and MARY B. UPSON, Appellants, v.
ANASTASIO MARTIN LANDA, THE UNION ICE COMPANY OF NEVADA, a
Corporation, and DAVID NEAL MORSE, Also Known as DAVID BOWERS, by His
Guardian Ad Litem, Frederick L. Hill, Respondents.
No. 4449
May 16, 1962 371 P.2d 657
Action by surviving brothers and sister of decedent for his wrongful death, wherein a party
claiming to be the equitably adopted child of decedent intervened. The lower court entered
judgment adverse to brothers and sister of decedent and they appealed. The Supreme Court,
McNamee, J., held that equitably adopted child of decedent had right to maintain an action
for wrongful death of his adoptive parent, and such right was paramount to rights of surviving
brothers and sister of deceased parent.
Affirmed.
78 Nev. 246, 247 (1962) Bower v. Landa
R. P. Wait & E. J. Wait, Jr., of Reno, for Appellants.
Woodburn, Forman, Wedge, Blakey and Folsom, and Clinton E. Wooster, of Reno, for
Respondents.
Goldwater, Taber and Hill, and Wayne L. Mortimer, of Reno, for Intervener-Respondent.
Bryce Rhodes, of Reno, Amicus Curiae.
1. Judgment.
Judgment of probate court in sister state that a party was entitled to inherit estate of deceased as an
equitably adopted child of deceased, determined his status as equitably adopted child only with reference to
his right to share in the estate, and was not determinative of his rights and duties other than those which
might flow from agreement to adopt.
2. Judgment.
The full faith and credit clause of the federal constitution requires only that a court recognize adoption
status of a child adopted in another state, but does not compel one state to recognize law of a foreign state
with respect to effect of adoption on scheme of intestate succession. U.S.C.A. Const. art. 4, sec. 1.
3. Judgment.
Utah decree, insofar as it adjudicated that there was a valid contract to adopt, would be recognized where
existence and validity of the contract to adopt were properly before Utah court for adjudication, and where
all parties in subsequent action appeared in that proceeding, determination therein that there was a valid
contract to adopt was res judicata in a subsequent action.
4. Specific Performance.
A contract to adopt should be specifically enforced.
5. Death.
Equitably adopted child of decedent had right to maintain an action for wrongful death of his adoptive
parent, and such right was paramount to rights of surviving brothers and sister of deceased parent. NRS
12.090.
6. Death.
The word heirs is used in portion of wrongful death statute specifying parties that may maintain suit
includes any person entitled to inherit the estate of a decedent. NRS 12.090.
OPINION
Clifford W. Bower and his wife, Virginia B. Bower, were killed in an automobile-truck
collision near Winnemucca, Nevada, on July 23, 1959. The action below is one for the
wrongful death of Clifford W.
78 Nev. 246, 248 (1962) Bower v. Landa
for the wrongful death of Clifford W. Bower, wherein David M. Bower, George H. Bower,
and Mary B. Upson, the surviving brothers and sister of Clifford W. Bower (also known as
Clifford W. Bowers) are plaintiffs. The defendants are Landa, the driver of the truck, and his
alleged employer, The Union Ice Company of Nevada, a corporation. David Neal Morse, also
known as David Bowers, was permitted to intervene upon his allegation that he is the adopted
son and sole heir of Clifford Wilson Bower, and therefore the only proper plaintiff in an
action for the wrongful death of Clifford. He also filed a separate action for the wrongful
death of Clifford with which we are not concerned at this time.
The defendants below and the intervener moved for and were granted a summary judgment
against the plaintiffs, appellants herein. This judgment has the legal effect of determining that
David Neal Morse is the proper surviving heir to bring the wrongful death action.
The facts upon which the lower court based its conclusions are as follows: David Neal
Morse was the illegitimate child of Phyllis Ball, who died in childbirth, and who was the
niece of Virginia B. Bower. The child lived with his maternal grandparents from 1944 until
1947 when they gave him into the custody and control of Clifford and Virginia, under an oral
agreement that Clifford and Virginia would adopt the child. Although Clifford and Virginia
thereafter and until the time of their death cared for said child and treated him in all respects
as their own, they never proceeded formally to adopt the child. After the death of Clifford and
Virginia, Walker Bank & Trust Co. of Salt Lake City, with whom Clifford had been
employed, notified Occidental Life Insurance Company of California, who was the insurer
under a group policy covering Clifford, of Clifford's death, that he left no surviving wife or
children, and that the parties entitled to the $10,000 death benefit were the said surviving
brothers and sister. Occidental thereupon paid the $10,000 to the appellants.
1
In August
1959, Walker Bank petitioned the probate court in Salt Lake City for letters of
administration with the will annexed in the matter of the estates of Clifford and Virginia,
and in said proceedings a determination of heirship was adjudicated under the following
circumstances:
____________________

1
Bryce Rhodes was permitted to file a brief on appeal as amicus curiae upon his showing that he is an
attorney for Occidental Life Insurance Company of California; that after Occidental had paid
78 Nev. 246, 249 (1962) Bower v. Landa
In August 1959, Walker Bank petitioned the probate court in Salt Lake City for letters of
administration with the will annexed in the matter of the estates of Clifford and Virginia, and
in said proceedings a determination of heirship was adjudicated under the following
circumstances:
During the administration of said estates the case of In re Williams, 10 Utah 2d 83, 348
P.2d 683, was decided. In that case the Supreme Court of Utah stated:
It is generally recognized that where a child's parents agree with the adoptive parents to
relinquish all their rights to the child in consideration of the adoptive parents' agreement to
adopt such child, and to care and provide for it the same as though it were their own child,
and such agreement is fully performed by all parties connected with such contract except that
there is no actual adoption, the courts will decree specific performance of such contract and
thereby award to the child the same distributive share of the adoptive parents' estate as it
would have been entitled to had the child actually been adopted as agreed.
Thereupon the Walker Bank filed in said estate proceedings a PETITION FOR
DETERMINATION OF THE PERSONS WHO ARE HEIRS OF DECEDENT ENTITLED
TO DISTRIBUTION. The petition alleges that at the time of the filing of the petition for
letters of administration with the will annexed
2
the petitioner, Walker Bank & Trust Co.,
believed that the heirs were those named in the petition; that the decision in the Williams case
requires a determination of heirship prior to distribution; that there was an agreement between
Clifford and Virginia to adopt David Bowers; and that because of said agreement David
Bowers is in fact the adopted child of decedent and his wife and the sole heir of Clifford
entitled to distribution as such.
____________________
the $10,000 death benefit to the appellants, David Bowers (David Neal Morse) commenced an action in Nevada
against Occidental claiming that he as the adopted child and sole heir of Clifford W. Bowers was entitled to the
$10,000 death benefit; and that the result of this appeal will vitally affect the disposition of that action. His brief
naturally sustains the position of the appellants.

2
On this appeal we are concerned with Clifford's estate in Utah only. His will named Virginia as the sole
beneficiary, but because of her simultaneous death, the surviving brothers and sister of Clifford were alleged to
be the heirs.
78 Nev. 246, 250 (1962) Bower v. Landa
adopted child of decedent and his wife and the sole heir of Clifford entitled to distribution as
such. The prayer of the petition prays that the court enter its decree determining the status
of David Bowers and the heir or heirs of decedent.
Upon the hearing of the petition, David Bowers, the brothers and sister of decedent, Union
Ice Company, and Landa all appeared through counsel.
The Utah probate court in that proceeding found that there had been an agreement
(between Clifford and Virginia on the one hand and the maternal grandparents of said minor
on the other) under the terms of which the maternal grandparents released their custody and
control of the minor to Clifford and Virginia in consideration of their agreement to adopt said
child. From said findings it concluded that the agreement to adopt shall be considered as
having been fully performed, thereby making David Bowers, a minor, the sole heir at law of
the estates of Clifford W. Bowers and Virginia B. Bowers, and as such entitled to the
distribution of their estates. The court thereupon decreed That David Bowers, a minor, be
and he is hereby declared the adopted child of Clifford W. Bowers and Virginia B. Bowers,
the decedents above named, and their sole heir entitled to distribution of their estate.
Intervener contends that the probate decree aforesaid, being in rem, establishes his status
as the adopted child of Clifford and Virginia, and his further status as their sole heir.
In answer thereto appellants maintain that the probate court, in decreeing that David
Bowers be and he is hereby declared the adopted child of Clifford W. Bowers and Virginia
B. Bowers * * * and their sole heir, clearly went beyond the holding in the Williams case;
that it had no jurisdiction to declare the status of the minor child; that an adopted status
could be decreed only through the statutory adoption procedures; and that the probate court's
jurisdiction was limited to a determination of the party or parties entitled to the distribution of
the particular estate in question. To this, the intervener replies that even if the probate court
went beyond the holding in the Williams case its decree is final, no appeal having been
taken therefrom, and therefore it must be accorded full faith and credit by the courts of
Nevada.
78 Nev. 246, 251 (1962) Bower v. Landa
beyond the holding in the Williams case its decree is final, no appeal having been taken
therefrom, and therefore it must be accorded full faith and credit by the courts of Nevada.
The Williams case does not hold that proof of a contract of adoption which has been fully
performed with the exception of obtaining the decree of adoption ipso facto results in the
adoption of the subject child.
The decisions of the courts have not been unanimous in respect to the enforcement of
such contracts. Those courts which will decree specific performance of a contract to make the
child an heir, or to adopt with the incidental right of inheritance, do not undertake to alter the
status of the parties or to hold that the child takes as an heir, since they generally agree that
equity does not have power to decree an adoption. Rather the relief allowed derives from the
power of equity to enforce a contract fully performed on one side by decreeing performance
of the promise of inheritance even if only implied from the agreement to adopt. * * * A
minority takes the position that no rights are conferred where the statute is not fully complied
with, hence no adoption, no inheritance. 10 Md.L.Rev. 76-77.
[Headnote 1]
It is our opinion, therefore, that the Utah probate court purported to determine only what
person or persons was or were entitled to have distribution of the estate in Utah and having
before it the agreement to adopt, it considered as done that which should have been done, and
treated David Bowers as an adopted child and as such the sole person entitled to inherit the
Utah estate. It went no further than this, and although the prayer asked for a determination of
the status of David Bowers, the word status, as so used, means his status only with
reference to his being entitled to the Utah estate and was not meant to be and was not
determinative of his rights and duties other than those which might flow from an agreement
to adopt.
[Headnotes 2, 3]
Under the full faith and credit clause, Nevada would be required to recognize the Utah
judgment insofar as it holds that agreements to adopt are specifically enforceable in Utah
and, as such, would entitle the subject of such an agreement to have the same rights of
inheritance in Utah as a natural child.
78 Nev. 246, 252 (1962) Bower v. Landa
it holds that agreements to adopt are specifically enforceable in Utah and, as such, would
entitle the subject of such an agreement to have the same rights of inheritance in Utah as a
natural child. In the present case it is not necessary to determine whether the Utah decree
constitutes a determination in rem of the status of David Bowers, or whether we must give
full faith and credit to the Utah decree so as to consider David Bowers as the adopted child
and heir of Clifford and Virginia for all purposes.
3
We will however recognize the Utah
decree insofar as it adjudicates that there was a valid contract to adopt, because the existence
and validity of the contract to adopt were properly before the Utah probate court for
adjudication. With all of the parties in this action appearing in that proceeding, that court's
determination that there was a valid contract to adopt becomes res judicata in this action.
[Headnote 4]
Under the Williams case, Utah follows the weight of authority and will enforce such
contracts specifically. We are of the opinion that Nevada should do likewise. This being true,
if Clifford had left any estate in Nevada, David Bowers would have been entitled to inherit
from decedent to the same extent as if he had actually been adopted as agreed. Annots., 171
A.L.R. 1315; 142 A.L.R. 84; 27 A.L.R. 1325; In re Williams, supra.
Our only remaining problem is whether the doctrine of equitable adoption should be
extended so as to permit the subject thereof to sue for wrongful death.
4

[Headnote 5]
Although there are authorities to the contrary (Smith v. Atlantic Coast Line R. Co., 212
S.C. 332, 47 S.E.2d 725; Weems v. Saul, 52 Ga.App.
____________________

3
The full faith and credit clause of the Constitution of the United States requires only that a court recognize
the adoption status of a child adopted in another state; it does not compel ones state to recognize the law of a
foreign state with respect to the effect of adoption on the scheme of intestate succession. In re Zoell's Estate, 345
Pa. 413, 29 A.2d 31.

4
The answer to this question is independent of whether the doctrine should be extended to other situations,
for example, so as to permit or deny inheritance from blood relatives of the adoptive parents or from blood
relatives of the child. See 45 Iowa L.Rev. 159-163.
78 Nev. 246, 253 (1962) Bower v. Landa
725; Weems v. Saul, 52 Ga.App. 470, 183 S.E. 661), we see no justification for refusing to
extend the principles of equitable adoption so as to entitle the subject thereof to maintain an
action for the wrongful death of his adoptive parents.
[Headnote 6]
David Bowers being the sole beneficiary of Clifford would in legal effect be his sole heir.
The word heirs used in the wrongful death statute (NRS 12.090) includes any person
entitled to inherit the estate of a decedent. Little v. Ireland, D.C., 30 F.Supp. 653; Ginochio v.
City and County of San Francisco, 194 Cal. 159, 228 P. 428; Evans v. Shanklin, 16
Cal.App.2d 358, 60 P.2d 554.
We conclude, therefore, that David Bowers has the right to maintain an action for the
wrongful death of Clifford W. Bowers which is paramount to the rights of the surviving
brothers and sister of Clifford.
Affirmed.
Badt, C. J., and Georgetta, D. J., concur.
Thompson, J., being disqualified, the Governor designated Honorable Clel Georgetta,
____________
78 Nev. 254, 254 (1962) Cox v. Glenbrook Co.
GEORGE COX and LEONARD DETRICK, Appellants, v. GLENBROOK COMPANY,
a Delaware Corporation, Respondent.
No. 4479
May 17, 1962 371 P.2d 647
Appeal from judgment of the First Judicial District Court, Douglas County; Frank B.
Gregory, Judge.
Action in which owners of both dominant and servient estates sought judgment declaring the
scope and extent of a right-of-way easement. The trial court entered judgment declaring that
easement could be used for access and egress only by a single family in occupancy of entire
dominant 80-acre parcel, that road was to be used as presently constructed and maintained,
and that proposed use of 80-acre dominant estate as a subdivision would constitute an illegal
and unjustified burden and surcharge upon the servient estate, and the owners of the dominant
estate appealed. The Supreme Court, Thompson, J., held that right-of-way could be enjoyed
by those who succeeded to possession of parts into which dominant estate might be divided,
that road could be maintained and improved but not widened, and that to extent that judgment
declared that subdivision of dominant estate would constitute an illegal burden, judgment was
premature and had to await requisite determination of facts.
Modified and remanded for judgment in accordance with this opinion. Each party to
bear his own costs on appeal.
[Rehearing denied June 12, 1962]
Bible, McDonald & Jensen and Donald L. Carano, of Reno, for Appellants.
Laxalt and Laxalt, of Carson City, for Respondent.
Claim of error based upon erroneous reception of alleged hearsay evidence that right-of-way easement
had been gratuitously given had no merit where original findings, which had been deleted upon appellants'
motion, determined that a nominal consideration had been paid, where amended findings were silent on
the subject, and where no ruling had been made on appellants' objection to evidence
which, in any case, had no significance in determination of case.
were silent on the subject, and where no ruling had been made on appellants' objection to evidence which,
in any case, had no significance in determination of case.
Record did not establish that court had taken judicial notice of use made of certain roads where record
reflected only that court had firsthand knowledge of conditions but did not indicate what such conditions
were.
3. Easements.
Extent of easement created by prescription is fixed by use creating it, and extent of easement created by
conveyance is fixed by conveyance if clear and unambiguous.
4. Evidence.
Conveyance covering a right-of-way easement and granting over the servient estate a full right of use
was clear and unambiguous and did not admit of evidence of an intent of the parties to restrict or limit the
use of such right-of-way.
5. Easements.
One who succeeds to the possession of each of the parts into which a dominant tenement may be
subdivided also succeeds to privileges of right-of-way use over servient tenement, unless otherwise
provided by terms of easement.
6. Easements.
Owners of 80-acre dominant estate, suitable for subdividing, and right-of-way easement for full right of
use for egress and ingress over servient estate were not limited to use of easement by a single family in
occupancy of entire 80-acre tract and their guests, and such limitation could not be imposed by judicial
declaration where instrument conveying easement contained no such restriction.
7. Easements.
Owner of an easement may prepare, maintain, and improve or repair the way in a manner and to an extent
reasonably calculated to promote the purposes for which easement was created, but may not cause an
undue burden upon servient estate nor an unwarranted interference with independent rights of others who
have a similar right of use.
8. Easements.
Where the width of right-of-way is not specified in instrument conveying easement, instrument must be
construed in the light of the facts and circumstances existing at its date and affecting the property, the
intention of the parties being the object of inquiry.
9. Easements.
Under grant of right-of-way easement calling for full right of use over roads of grantor from dominant
estate to state highway, small back road, which, at time of easement, was not wide enough to permit two
automobiles to pass comfortably along its course, could not be widened but had to be maintained as a road
with only occasional turn outs to permit passing.
10. Easements.
Under grant of right-of-way easement, the purpose of which was to assure ingress and egress from
dominant parcel over servient estate to named highway, existing roads could be closed
under servient estate's right to relocate roads, so long as ingress and egress were
accorded dominant parcel over roads as relocated.
over servient estate to named highway, existing roads could be closed under servient estate's right to
relocate roads, so long as ingress and egress were accorded dominant parcel over roads as relocated.
To extent that judgment declared that proposed use of dominant 80-acre estate as a subdivision would
constitute an illegal burden and surcharge upon servient estate over which a right-of-way easement had
been granted, judgment was premature and had to wait requisite determination of fact. NRS 30.040,
30.110.
OPINION
In this case, Glenbrook Company, a family corporation, by complaint, and Cox and
Detrick, copartners, by answer and counterclaim, each request a declaratory judgment as to
the scope and extent of a certain right-of-way herein referred to as the Quill Easement,
granted Henry Quill by the Glenbrook Company in 1938. The conveying instrument reads:
That said grantor, in consideration of the sum of ten dollars ($10.00), lawful money of the
United States of America, to it in hand paid by the grantee, receipt whereof is hereby
acknowledged, does by these presents grant, bargain, sell and convey to the said grantee an
easement and right-of-way, with full right of use over the roads of the grantor as now located
or as they may be located hereafter (but such relocation to be entirely at the expense of the
grantor) from the State Highway known as U. S. Route 50 to the following described
property: [description of Quill property]
To have and to hold said right-of-way and easement unto the said grantee, his heirs and
assigns forever.
1. The facts. The relevant facts are not disputed. The Quill property contains 80 acres.
Henry Quill died in 1943. In 1945 the administratrix of his estate sold the property, with
appurtenances, to Kenneth F. Johnson for $8,600. In 1960 Johnson sold the property to Cox
and Detrick for $250,000, $50,000 down, with the balance secured by trust deed and payable
over an extended period.
Page 257 map (See book) Cox and Detrick propose to subdivide their property into parcels
of one acre or more, resulting in a minimum of 40 or a maximum of 60 separate parcels.1
The building on each parcel is to be limited to a residence and a guesthouse.
Cox and Detrick propose to subdivide their property into parcels of one acre or more,
resulting in a minimum of 40 or a maximum of 60 separate parcels.
1
The building on each
parcel is to be limited to a residence and a guesthouse. Permanent, as distinguished from
seasonal, homes are planned. A commercial development of the property is not contemplated.
Zoning will permit the proposed development. Cox and Detrick have incurred expenses of
about $17,000 in preliminary development work, including leveling of the back road,
drilling a well, testing the soil, and staking out four 1-acre parcels which were released from
the deed of trust. In leveling the back road, four pieces of equipment were taken on a
transport from U. S. Highway 50 to said road. In doing the work some trees were barked
and at least two trees were knocked down. The back road was too narrow to permit passage
of the caterpillars. An advertising program to sell the individual parcels was commenced. Cox
and Detrick anticipate a fully developed subdivision in 10 years. The 80 acres are said to be
surrounded on two sides by the property owned by George Whittel, and on two sides by the
property of Glenbrook Company. The Quill Easement is the only existing ingress to and
egress from that tract.
The property of Glenbrook Company fronts on Glenbrook Bay, Lake Tahoe. For more than
25 years it has operated a resort business. Its facilities consist of a beach, approximately 30
guest cottages, a tennis court, riding stables, foot paths for hiking, horse trails for riding, a
golf course, a post office, a rodeo area, a service station, a bar, and a dining room and lounge
at the Glenbrook Inn. The golf course may be used by nonguests upon paying a higher green
fee. The bar is open to the public, as is the dining room when not completely reserved by
guests. There is no gambling. Glenbrook is operated on a seasonal basis from mid-June
through September and is widely known as a beautiful summer vacation resort for families,
many of whom return year after year. The atmosphere sought to be maintained is that of
peace, seclusion and quiet.
____________________

1
The lower court apparently assumed that 80 separate parcels would be created. The evidence does not bear
this out.
that of peace, seclusion and quiet. The roads through the property are generally unpaved
except for the main road from U. S. Highway 50 to the golf course. At the entrance to the
main road is a sign stating that permission to pass over is revocable at any time. The main
road is the only way in or out from the Glenbrook properties. In years past, from time to time,
Glenbrook Company has sold small parcels of its property to individuals. In each instance it
has granted the purchaser a right-of-way for ingress and egress.
To get to the Cox and Detrick property one may take either the golf course road or the
back road. Before this action started, the golf course road was fenced off at the point
indicated. A portion of the back road was built in 1936 to provide a way to water tanks
which supplied water for the golf course. In the late 1930's it was extended to the Quill (now
Cox and Detrick) properties. Glenbrook Company, because of friendship with Quill, supplied
the tractor and blade used in so extending the road. The road was, and is, narrow and
unpaved. In most places it is wide enough for only one car. Trees, rocks and manzanita
generally border it. There is an occasional turn out. A worker, who extended the road to the
Quill property in the late 1930's, stated that Quill just wanted a rough road, so that he could
go on up with a car. Cox frankly, stated that he would like to use the back road if it were
passable, and that he definitely wanted to widen the road. That road has seldom been used
by anyone except the four or five families having homes along its course, and their guests.
2. The lower court's judgment. After trial before the court without a jury, judgment was
entered declaring that the Quill Easement is limited in three respects: (a) to such uses as are
and will be reasonably consistent with the use to which the servient property is employed,
that is, a conservative, family, mountain resort operation, and is further limited, as to
reasonable use, to the use contemplated in the original grant to Quill, that is, access to and
egress from the entire dominant parcel by a single family in occupancy, and their guests; (b)
to use of the Glenbrook roads as those roads are presently constructed and maintained, or
as the Glenbrook Company by its own action or by mutual agreement with interested
parties, may hereafter locate and construct roads in the Glenbrook estate"; and {c) that
"The proposed use of the so-called Quill Easement by the defendants herein, that is, the
use of the Glenbrook roads by purchasers of subdivided parcels of the former Quill
property, would constitute an illegal and unjustified burden and surcharge upon the
servient estate."
roads are presently constructed and maintained, or as the Glenbrook Company by its own
action or by mutual agreement with interested parties, may hereafter locate and construct
roads in the Glenbrook estate; and (c) that The proposed use of the so-called Quill
Easement by the defendants herein, that is, the use of the Glenbrook roads by purchasers of
subdivided parcels of the former Quill property, would constitute an illegal and unjustified
burden and surcharge upon the servient estate.
[Headnotes 1, 2]
3. Area of contention. The primary contentions which we are called upon to resolve are:
first, whether the Quill conveyance with regard to its extent is clear and without ambiguity;
and, second, whether the limitations of its use placed thereon by the lower court are justified
by the law and the facts presented. The assignments of error by appellants Cox and Detrick
are primarily directed to these two areas of contention and related matters. However, they also
assigned, as error, two incidental points which are referred to and disposed of by footnote.
2

4. Is the Quill conveyance as to its extent? We have heretofore quoted the Quill
Easement. By its terms the grantor conveyed an easement and right-of-way, with full right of
use over the roads of the grantor as now located or as they may be located hereafter * * *
from the State Highway known as U. S. Route 50 to the following described property: * * *.
The trial court announced in a conclusion of law that the terms of the grant are not so
clear and precise as to exclude interpretation regarding its true extent and limit.
____________________

2
(a) Cox and Detrick objected to hearsay evidence offered to show that the Quill conveyance was
gratuitously given. Ruling upon the objection was reserved, and the record does not reflect that a ruling was ever
made. The original findings determined that a nominal consideration was paid for the conveyance. That finding
was deleted upon motion of Cox and Detrick. The amended findings are silent on the subject. In the absence of a
ruling upon the objection, and it being apparent that the point had no significance in the determination of the
case, there can be no merit to this claim of error.
(b) Cox and Detrick urge that the lower court took judicial notice that the use of the Glenbrook roads was
exclusive in nature. The record simply does not establish this to be so. It reflects only that the court had
first-hand knowledge of that condition; it does not tell us what that condition was or is. Obviously this claim
of error is without validity.
announced in a conclusion of law that the terms of the grant are not so clear and precise as to
exclude interpretation regarding its true extent and limit. The appellant subdividers urge that
the meaning of the conveyance is clear; that full right of use cannot mean a restricted or
limited use; that the lower court should not have looked to extrinsic evidence to aid it in
ascertaining the parties' intention at the time the grant was made. On the other hand,
Glenbrook Company argues that the phrase full right of use must be considered in the light
of circumstances existing at the time the grant was made, and the actual use of the way
thereafter; that such circumstances are relevant and admissible to aid the court in ascertaining
the extent of an easement created by conveyance.
No issue regarding admissibility of evidence was raised during trial. Objection was not
made to any of the evidence offered, except as to testimony relating to whether the grant was
gratuitously made, which we have already discussed.
3
Yet the court below, by way of a
conclusion of law after trial, held that it could refer to extrinsic evidence for the purpose of
interpreting the meaning of the grant with regard to its true extent and limits. The record
does not reveal what extrinsic evidence was considered by the lower court for this purpose,
and we do not propose to speculate in this connection.
By the phrase extent of an easement is meant the scope of the privilege of use authorized
by the easement. Here the grantor conveyed an easement with full right of use. To our
mind, that phrase is clear and without ambiguity. It may not, under the veil of interpretation,
be considered to mean a "restricted right of use."
____________________

3
The reason for the absence of objection is evident. No person was available to testify that the terms of the
grant did not state the true intention of the persons named therein. W. M. Bliss, who signed as vice president of
grantor, is dead. His cosignor for grantor, Herbert E. Hall, at that time its assistant secretary, did not testify and
the record does not tell us why. The grantee, Henry Quill, died in 1943. A witness was not presented who sought
to declare the intention of those persons as being different than expressed in the grant of easement. Had such
testimony been offered, perhaps objection would have been made. Under the circumstances here presented, no
reason existed for any party to object to the evidence offered.
be considered to mean a restricted right of use. Keeler v. Haky 160 Cal.App.2d 471, 325
P.2d 648. In Keeler, the grantor gave the full and free right, * * * to pass and repass along,
over and upon said private road * * *. The court there said: The language of the grant deed,
dated April 17, 1934, is clear and free from ambiguity and does not create such a condition as
to require or authorize the court to consider extrinsic evidence as to the meaning of the
written agreement between the parties. Furthermore, the court held that the right to pass and
repass over the private road was unrestricted.
[Headnote 3]
The process which creates an easement necessarily fixes its extent. The extent of an
easement created by prescription, is fixed by the use which created it. Likewise, the extent of
an easement created by conveyance is fixed by the conveyance, Restatement, Property, sec.
482, comment (a), at p. 3010, if clear and unambiguous.
4

[Headnote 4]
We therefore conclude that the trial court committed error in deciding that the phrase full
right of use was subject to judicial interpretation. This error probably resulted in the
restrictions placed upon the Quill Easement by the judgment entered. However, we cannot be
certain that this is so. In any event, it is our view that the judgment is too restrictive in certain
respects, incomplete in others, and premature as to a third aspect of the litigation. It will be
our purpose to point out wherein the judgment imposes unwarranted restrictions upon the
possessors of the dominant tenement, to define the rights of the parties in the areas where the
judgment is silent, and announce why, as to a certain phase of this case, a definitive
determination cannot yet be made.
[Headnotes 5, 6]
5. The unwarranted restrictions. (A) We shall first discuss that portion of the judgment
restricting the use to ingress to and egress from the entire dominant parcel "by a single
family in occupancy and their guests."
____________________

4
Glenbrook Company urges that the trial court, by virtue of the rule of practical construction could
properly consider evidence of the actual use of the way by predecessors of Cox and Detrick, to fix the extent of
the use created by the conveying instrument. That rule does not apply where the instrument is clear. Woods v.
Bromley, 69 Nev. 96, 241 P.2d 1103.
discuss that portion of the judgment restricting the use to ingress to and egress from the entire
dominant parcel by a single family in occupancy and their guests. Such a restriction, in our
view, destroys the appurtenant character of the easement. Yet, there can be no question but
that the Quill Easement was appurtenant to the 80-acre tract then owned by him. The terms of
the conveyance, to have and to hold said right-of-way and easement unto the said grantee,
his heirs and assigns forever, make it clear that one who succeeds to the possession of the
dominant tenement, succeeds as well to the privileges of use of the servient tenement
authorized by the conveyance. Furthermore, those who succeed to the possession of each of
the parts into which the dominant tenement may be subdivided, also succeed to such
privileges of use, unless otherwise provided by the terms of the conveyance. Bang v. Forman,
244 Mich. 571, 222 N.W. 96; Crawford Realty Company v. Ostrow, 150 A.2d 5 (R.I. 1959);
Restatement, Property, sec. 488, comments (b) and (c); Akers v. Baril, 300 Mich. 619, 2
N.W.2d 791; Hewitt v. Perry, 309 Mass. 100, 34 N.E. 2d 489; Martin v. Music, 254 S.W.2d
701 (Ky. 1953); Annots., 8 A.L.R. 1368, 34 A.L.R. 972. The Quill conveyance does not
contain a restriction that the easement granted is to be appurtenant to the dominant estate only
while such estate remains in single possession, and none may be imposed by judicial
declaration.
[Headnote 7]
(B) The judgment further restricts the use of the easement to use of the Glenbrook roads
as those roads are presently constructed and maintained. We are uncertain as to the precise
meaning of this restriction. If such language prohibits the owner of the dominant estate from
making any improvements or repairs of the way, it is too restrictive. As a general rule, the
owner of an easement may prepare, maintain, improve or repair the way in a manner and to
an extent reasonably calculated to promote the purposes for which it was created. The owner
may not, however, by such action, cause an undue burden upon the servient estate, nor an
unwarranted interference with the independent rights of others who have a similar right of
use.5 Annot.,
of others who have a similar right of use.
5
Annot., 112 A.L.R. 1303. The action of Cox and
Detrick in leveling or rough grading the back road, to the extent that it was confined to
the area within the exterior borders of the road as they existed when the easement was
originally granted, was an improvement reasonably calculated to promote the purposes for
which the easement was created. Such leveling or rough grading as so confined, would not, in
itself, cause an undue burden upon the servient estate, nor constitute an unwarranted
interference with the easement rights of other private property owners.
[Headnotes 8, 9]
However, their conduct in attempting to widen the way is another matter. A careful study
of the record makes it clear that the ultimate intention of the subdividers is to widen the back
road in order that two cars going in opposite directions may pass comfortably at all points
along its course. The conveying instrument does not specify the width of the way expressly; it
does, however, refer to the roads as now located. The back road as it existed at the time
of the grant of easement, was described as a small road, and wide enough for just one car.
The record does not disclose that the predecessors of Cox and Detrick ever sought or
attempted to widen the back road. There is no evidence tending to indicate that either
Glenbrook Company or Henry Quill Contemplated or intended a wider road than existed
when the grant was made. When the width is not specified, the conveying instrument must be
construed in the light of the facts and circumstances existing at its date and affecting the
property, the intention of the parties being the object of inquiry. Annot., 28 A.L.R.2d 253.
Lipsky v. Heller, 199 Mass. 310, 85 N.E. 453; Dunham v. Dodge, 235 Mass. 367, 126 N.E.
663; Drummond v. Foster, 107 Me. 401, 78 A. 470. Indeed, it is sometimes held, as a matter
of law, that where the width of a right-of-way is not specified in the grant, it is limited to
the width as it existed at the time of the grant.
____________________

5
The factual background related mentions other property owners to whom Glenbrook Company has given
similar rights of ingress and egress. To the extent mentioned by the general rule of law, this litigation is of
significance to them.
held, as a matter of law, that where the width of a right-of-way is not specified in the grant, it
is limited to the width as it existed at the time of the grant. Good v. Petticrew, 165 Va. 526,
183 S.E. 217. We need not go that far. We believe that the intention of the parties at the time
of the grant, when there is evidence to indicate such intention, controls as to width.
6

As already stated, the only evidence in the record with reference to the back road
indicates that Henry Quill desired a way wide enough for one car; that such was the character
of the back road at that time, with occasional turn outs. We must conclude, therefore, that
such was the parties' intention in 1938 when the grant was made. If the width of the way is
what the lower court had in mind when it restricted the easement to use of the Glenbrook
roads as those roads are presently constructed and maintained (the record revealing no
substantial change from 1938 to time of trial, except for the work of Cox and Detrick before
mentioned), then we find ourselves in accord.
[Headnote 10]
6. Area wherein judgment is silent. Glenbrook Company erected a fence or barrier across
the golf course road at or near the point indicated on the sketch. Cox and Detrick desire
permission to use that road. They removed the barrier, but it was again erected by Glenbrook
Company. The predecessors of Cox and Detrick used the back road for ingress and egress;
the golf course road was, however, used occasionally. The judgment below does not touch
on this aspect of the case.
The conveyance gave full right of use over the roads. Both roads existed at that time.
However, the conveyance also permitted relocation of the roads by Glenbrook Company at its
own expense.
The evident purpose of the conveyance is to assure ingress to and egress from the
dominant parcel, over the servient estate, to U. S. Highway 50. It is admitted by Cox and
Detrick that Glenbrook Company could discontinue the use of, or barricade the existing
roads, and relocate them without infringing upon the Quill Easement so long as ingress
and egress was given to the dominant parcel over the roads as relocated.
____________________

6
The full right of use phrase, previously discussed, does not embrace the problem of width. There can be a
full right to use a narrow as well as a wide road.
by Cox and Detrick that Glenbrook Company could discontinue the use of, or barricade the
existing roads, and relocate them without infringing upon the Quill Easement so long as
ingress and egress was given to the dominant parcel over the roads as relocated. The action by
Glenbrook Company in barricading the golf course road is, to a degree, a relocation of
that portion of the right-of-way, and authorized by the terms of the conveyance. Cf. Heyna v.
Lyons, 228 Ky. 211, 14 S.W.2d 766; Lyon v. Lea, 84 Me. 254, 24 A. 844. The purpose of the
conveyance is not frustrated by such conduct.
[Headnote 11]
7. Area wherein judgment is premature. The judgment entered also declared that the
proposed use of the Quill Easement would constitute an illegal burden and surcharge upon
the servient estate. This declaration, we believe, deals with the subject with which the parties
are most deeply concerned. They earnestly desire a specific declaration of their legal rights
arising out of the Quill conveyance in order that their future courses of action may be
planned. Though this be so, every judgment following a trial upon the merits must be based
upon the evidence presented; it cannot be based upon an assumption made before the facts are
known or have come into existence. The announced intention by the owners of the dominant
estate as to their proposed future use of the easement does not, of itself, constitute an
unreasonable burden upon the servient estate. When the facts concerning that use become
known, an unreasonable burden upon the servient estate may, or may not result. That
determination must await the presentation of evidence then in existence.
NRS 30.110 of the Uniform Declaratory Judgments Act contemplates that the
determination of an issue of fact is to be tried and determined in the same manner as issues of
fact are tried and determined in other civil actions. All parties concede that the issue as to
whether the actual use to which an easement is devoted, constitutes an unreasonable burden
upon the servient estate, is primarily a question of fact and not of law. The authorities so
hold. Bang v. Forman, 244 Mich. 571, 222 N.W. 96, a subdivision case, where the court
said, "The extent to which the use of the easement had been increased was a question of
fact for the court.";
N.W. 96, a subdivision case, where the court said, The extent to which the use of the
easement had been increased was a question of fact for the court.; Wall v. Rudolph,
Cal.App., 18 Cal.Rptr. 123, 131, Ordinarily the question of whether there has been an
unreasonable use of an easement is one of fact * * *.; Siedler v. Waln, 266 Pa. 361, 109 A.
643, 645, 8 A.L.R. 1363, where the court stated, While it is difficult, if not impossible, to
lay down a clear and definite rule to determine what may be construed a reasonable and
proper use [of an easement], as distinguished from an unreasonable and improper one, and
such questions must, of necessity, be usually left to the determination of a jury or the trial
court, as questions of fact,' * * *, here the chancellor has found the facts against defendants;
and we are not convinced of reversible error in that regard.
A distinction must be drawn between the construction of a writing as contemplated by
NRS 30.040 of the Uniform Declaratory Judgments Act, and the determination of an issue of
fact provided for by NRS 30.110 of that act. As applied to the case before us, matters
respecting the extent of the privilege to use the easement are governed by the terms of the
instrument itself, if mentioned. The phrase full right of use as used therein we have
declared to be clear, and not the subject of interpretation. On the other hand, the problem
respecting the width of the way, which was not designated by the instrument itself, was the
subject of determination based upon factual information in existence and received during
trial. The conveying instrument was, therefore, interpreted to mean the width of the way as it
existed at the time of the grant. Each of these matters dealt with the extent of the privilege of
use.
However, problems arising from the actual use of the way as distinguished from the
privilege to use it, do not, in most cases, depend upon a construction of the conveying
instrument, but rather upon the consequences resulting from such actual use. This being so,
factual circumstances which may arise in the future cannot be fairly determined now. As to
this phase of the case we are asked to make a hypothetical adjudication, where there is
presently no justiciable controversy, and where the existence of a controversy is
dependent upon the happening of future events. Cf. Prashker v. United States Guarantee
Company, 1 N.Y.2d 5S4, 154 N.Y.S. 2d 910, 136 N.E.2d S71.
are asked to make a hypothetical adjudication, where there is presently no justiciable
controversy, and where the existence of a controversy is dependent upon the happening of
future events. Cf. Prashker v. United States Guarantee Company, 1 N.Y.2d 584, 154 N.Y.S.
2d 910, 136 N.E.2d 871. A declaratory judgment should deal with a present, ascertained or
ascertainable state of facts. See Hunt v. Smith, 137 So.2d 232 (Fla.App. 1962), where
plaintiff asked the court to decree that it would have an easement of necessity if certain events
occurred in the future.
Indeed, Glenbrook Company has stated that its purpose in initiating this suit is not to
enjoin the proposed subdivision. It is vitally interested, however, in maintaining the
atmosphere of peace, seclusion and quiet for which it is widely known. Whether a
subdivision, on the one hand, can coexist with the maintenance of such an atmosphere, on the
other, cannot now be determined because of the lack of sufficient evidence. Consequently, a
judgment cannot now be announced which will supply all of the answers desired by the
parties. For example: Suppose we were to assume a completed subdivision, 40 or 60 homes
with guesthouses, within 10 years, and declared, at this time, that the use of the Quill
Easement by the possessors of the subdivided parcels, would unreasonably burden the
servient estate. Such a declaration by us would not determine whether such use by a lesser
number would likewise surcharge the servient estate. Nor can we forecast whether the
character of Glenbrook will remain the same or change within the next 10 years. There is no
feasible method, at this time, by which we can declare in advance the point at which the
burden upon the servient estate becomes unreasonable. Such court declaration must await the
knowledge and presentation of proper evidence. In our judgment the lower court erred in
declaring that the proposed use of the Quill Easement would constitute an unreasonable
burden upon the servient estate, in the absence of existing evidence. It should have done no
more than to announce, in general terms, the applicable legal principle within which a
subsequent factual determination could be made if occasion therefor arises.
which a subsequent factual determination could be made if occasion therefor arises.
Conclusions: From the foregoing it is apparent that the parties seek a declaration of rights
in the following respects:
1. The scope and extent of the easement as described by the words full right of use in
the conveying instrument.
2. The legal right, if any, of the owners of the easement to maintain, repair and improve
the way.
3. The legal right, if any, of the owners of the easement to widen the way.
4. The legal right, if any, of the owner of the servient estate to barricade that portion of the
way referred to as the golf course road.
5. A declaration now as to whether uses of the way, concomitant with a future proposed
subdivision, will, if completed, or during the course of its development, cause an
unreasonable burden upon the servient estate.
As to these matters, we conclude:
First: The privilege of use of the Glenbrook roads as located on January 7, 1938 (the date
of the grant of easement) is not restricted by the terms of the grant, and is appurtenant to the
dominant estate, and may be enjoyed by those who succeed to the possession of the dominant
estate in its entirety or by those who succeed to the possession of the parts into which such
estate may be subdivided.
Second: The owners of the easement may maintain, repair and improve the way in a
manner reasonably calculated to promote the purposes for which the easement was created,
provided, however, (a) such maintenance, repair or improvement is confined to the area
within the exterior borders of the way as it existed on January 7, 1938 (the date of the grant of
easement); (b) that such maintenance, repair, or improvement will not cause an undue burden
upon the servient estate; (c) that such maintenance, repair or improvement will not cause an
use.
Third: The owners of the easement may not widen the way, its width being limited, by
reason of the evidence introduced, to the width of the way on January 7, 1938 (the date of the
grant of easement); and, insofar as the portion of the way herein referred to as the back road
is concerned, that width is sufficient only for one car with occasional turn outs.
Fourth: The owner of the servient estate has the right to relocate the way at its own
expense, which right includes the right to barricade that portion of the existing way herein
referred to as the golf course road.
Fifth: The owners of the easement may not, by reason of their proposed subdivision
development, or otherwise, cause an undue burden upon the servient estate, or an
use. Whether such a burden or interference will occur cannot be conclusively declared upon
existing evidence. In the event the owners of the easement proceed with their announced plan,
their use of the way is limited to the extent herein noted. We believe it proper, however, at
this time, to note that, should they proceed with their proposed plan, the trier of the facts in
subsequent litigation, if it occurs, might or might not determine upon evidence then existing,
that their use of the way causes an unreasonable burden upon the servient estate or an
use; hence, any further action on their part to develop their property in the manner proposed is
subject to such contingency.
Modified and remanded for judgment in accordance with this opinion. Each party shall
bear his own costs on this appeal.
McNamee, J., concurs.
Badt, C. J., concurring:
I concur in the conclusions reached by Mr. Justice Thompson, but fear that some of the
expressions used in the opinion might in some future case be taken to limit unduly the power
of the court in actions under the Declaratory Judgments Act. While it is undoubtedly true that
"factual circumstances which may arise in the future cannot be fairly determined now," it
is likewise true than an expressed purpose and intention to perform acts that will, under
satisfactory proof, surcharge the servient tenement with an unreasonable burden is a
present threat of invasion of plaintiff's rights and subject to declaratory determination.
that factual circumstances which may arise in the future cannot be fairly determined now, it
is likewise true than an expressed purpose and intention to perform acts that will, under
satisfactory proof, surcharge the servient tenement with an unreasonable burden is a present
threat of invasion of plaintiff's rights and subject to declaratory determination. It need not
await the event. NRS 30.030, 30.040, 30.050, 30.070, 30.140. See Kress v. Corey, 65 Nev. 1,
189 P.2d 352, and cases therein cited.
____________
78 Nev. 271, 271 (1962) Quijada v. Southern Pipe & Casing Co.
L. QUIJADA, Appellant, v. SOUTHERN PIPE & CASING COMPANY, A DIVISION OF
U. S. INDUSTRIES, INC., a Delaware Corporation, Respondent.
No. 4452
May 21, 1962 371 P.2d 661
Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Judge,
David Zenoff, Judge (on motions for new trial, etc.).
Action for value of pipe furnished in connection with subdivision development. The trial
court entered judgment for plaintiff and one defendant appealed. The Supreme Court, Badt,
C. J., held that where subdivision developer made contact with representatives of pipe seller
for purchase of pipe, seller's controller and credit manager insisted on knowing how pipe
would be paid for and developer produced copy of escrow instructions stating that money
would be given to it through escrow and pipe seller's credit manager made copy of contract
verified fact that money was on deposit and made shipment, developer was estopped from
denying promise to pay pipe seller.
Affirmed.
Charles E. Catt, of Las Vegas, for Appellant.
Ralph L. Denton and George F. Ogilvie, Jr., both of Las Vegas, for Respondent.
1. Contracts.
Escrow agreement, whereby escrowee was to disburse funds for payment of bills incurred by water
company in installation of facilities to make water available to subdivision with developer to lend one-half
of funds necessary was no unclear, and supplier of pipe was third-party beneficiary.
2. Frauds, Statute of.
Even if escrow agreement constituted agreement of signer thereof to answer for debt of another,
inasmuch as it was in writing and subscribed to by signer, who was sued thereon, it complied with statute of
frauds. NRS 111.220.
3. Depositaries.
Although money held in escrow to pay for water system, was due subdivision developer from mortgage
company developer owed nothing to water company or supplier of pipe, where obtaining of water was
essential to subdivision, and water company was insolvent, there was ample consideration for third-party
beneficiary contract in favor of supplier of pipe.
4. Depositaries.
Lack of privity between subdivision developer, who placed money in escrow as loan to water company
which was to install water system, and supplier of pipe to water company did not foreclose pipe seller's
right to sue on escrow agreement.
5. Estoppel.
Where subdivision developer made contact with representatives of pipe seller for purchase of pipe,
seller's controller and credit manager insisted on knowing how pipe would be paid for, developer produced
copy of escrow instructions stating that money would be given to it through escrow, and pipe seller verified
fact that money was on deposit before making shipment, developer was estopped from denying promise to
pay pipe seller. NRS 52.060.
Reviewing court cannot interfere with trial court's acceptance of testimony of respondent's witnesses
where evidence is conflicting.
OPINION
This appeal presents for our determination (1) the construction of a certain written
agreement, contained in escrow instructions, signed by appellant and others; (2) the legality
of such agreement; (3) its operation as affecting the rights of a third-party beneficiary; (4) the
application of the doctrine of promissory estoppel as affecting appellant's liability thereunder;
and (5) certain rulings of the trial court asserted to be erroneous and prejudicial.
and prejudicial. The parties will be referred to by their abbreviated names.
The action was originally brought by Southern Pipe & Casing Company against Pure
Water Company, Pioneer Title Insurance and Trust Company, Michael Hines, and L. Quijada.
Judgment was entered in favor of Southern Pipe against Hines, Quijada and Pure Water for
$6,028.20 and interest, and for the payment by Pioneer Title to Southern Pipe of sums held by
it in escrow.
1
Quijada alone appealed from the judgment, to the end that the only parties
involved in this appeal are Quijada as appellant and Southern Pipe as respondent.
The facts may be best presented by quoting the findings of the trial court, in which we
have abbreviated the names of the parties without designation of the changes.
5. On or about the 15th day of August, 1956, pursuant to an oral contract made in
California between the plaintiff and the defendants Pure Water and Hines, the plaintiff sold
and delivered by common carrier to the defendant Pure Water and Hines, jointly, 7400 feet of
six-inch diameter asphalt-dipped steel pipe of the reasonable and agreed value of $6,028.20.
Said sum was due and payable on the 15th day of September, 1956.
6. Prior to and at the time of the sale of pipe by plaintiff as aforesaid:
(a) Quijada was the owner and developer of a housing subdivision located in or near the
City of Las Vegas, County of Clark, State of Nevada, which was and now is known as the
Park Ridge Tract;
(b) Pure Water was a public utility duly licensed by the State of Nevada and had
previously secured from the Public Service Commission of the State of Nevada a Certificate
of Public Convenience for the furnishing of domestic water to the said Park Ridge Tract;
(c) The Water Well System of the defendant Pure Water Company which had previously
supplied water to said tract had become inadequate because of water contamination from the
wells owned by said Pure Water Company; "{d) The Park Ridge Tract was without an
adequate water supply because of said contamination;
____________________

1
Pioneer Title sought only a judicial declaration as to who was entitled to distribution of these funds.
(d) The Park Ridge Tract was without an adequate water supply because of said
contamination;
(e) Water was being supplied to the residents of said tract by means of tank trucks;
(f) Because of the above-described water situation, the Federal Housing Administration
had refused to permit the release of funds held by Palomar Mortgage Company to Quijada, to
which he would otherwise have been entitled by reason of the sale of houses in said tract
pending the installation of a suitable water system thereto.
(g) That prior to the sale of such pipe as aforesaid, the Public Service Commission * * *
conducted an informal investigative hearing into the affairs of Pure Water and had ordered
said Pure Water to take immediate steps to provide adequate water service to the Park Ridge
Tract.
7. Prior to the sale of pipe by plaintiff as aforesaid and in order to provide for an
adequate water system for said Park Ridge Tract, Quijada, Hines, and Pure Water and J.
Fisher entered into an agreement for the purpose of financing the installation of an adequate
water system for Park Ridge Tract. Under the terms of said agreement, Quijada agreed to pay
one-half of the cost of such water system, and Hines and Pure Water and J. Fisher had agreed
to pay the other half; the cost of said system exceeded $12,000.00. Hines and J. Fisher have
fully performed all things required of them by said agreement.
8. Pursuant to the agreement described in Paragraph 7, Quijada on or about the 21st day
of June, 1956, entered into a further agreement with the Palomar Mortgage Company,
mortgage holder on certain of the lots on the Park Ridge Tract, wherein Quijada agreed to,
and thereafter did, open an escrow with the defendant Pioneer Title, being Escrow No.
LV3979-2, wherein it was provided that Quijada would deposit in said escrow with the
Pioneer Title a sum sufficient to pay one-half of the costs of the water system to be
constructed to serve Park Ridge Tract as aforesaid. Thereafter, Quijada did deposit a sum in
excess of $7,234.50 in such escrow; Pioneer Title still holds such sum; all bills by persons
furnishing materials for the construction of such water system were, under the terms of
said Escrow Agreement, to be jointly approved by J.
in such escrow; Pioneer Title still holds such sum; all bills by persons furnishing materials for
the construction of such water system were, under the terms of said Escrow Agreement, to be
jointly approved by J. Fisher and Quijada; Quijada has arbitrarily and wrongfully failed and
refused and still fails and refuses to approve the payment of such bills, even though the same
have been approved for payment by J. Fisher; in particular, Quijada has failed and refused
and still fails and refuses to approve the payment of the bill due to the plaintiff on account of
the purchase price for the steel pipe in the amount of $6,028.20. It was further understood and
agreed by and between Quijada and Hines and J. Fisher that the sums of money to be
advanced by Quijada for the payment of one-half of the price of a new water system to serve
at Park Ridge Tract would constitute a loan by Quijada to Pure Water.
9. It was expressly intended by the parties to the agreements described in paragraph 7
and 8 above that persons such as plaintiff who supplied materials for use in said water system
would be benefited thereby.
10. Prior to the sale and delivery of the pipe by plaintiff as aforesaid, Quijada orally
stated and represented to the plaintiff that it would be paid for all pipe which it sold to the
defendants Pure Water and Hines from funds which he had then deposited into the escrow
referred to hereinabove, or which he would thereafter deposit or cause to be deposited into
said escrow. Had it not been for such statement and representation by Quijada, the plaintiff
would not have sold said pipe to the defendants Hines and Pure Water.
11. Neither the plaintiff nor any of its agents, servants or employees made any
guarantees, representations or warranties, express or implied, as part of said sale, except that
the pipe would, and it did, conform to the description contained in said contract, as above
stated; neither the plaintiff nor any of its agents, servants or employees made any guarantee,
representation, or warranty regarding the length of time said pipe would last or as to its life.
12. Said pipe when sold and delivered by plaintiff complied with the description
contained in the order placed by the defendants Pure Water Company and Hines;
complied with the description contained in the order placed by the defendants Pure Water
Company and Hines;
* * * * *
14. Shortly after August 15, 1956, said pipe was installed as part of the Park Ridge Tract
water system by said J. Fisher under the direction and supervision of Hines and Pure Water
and with the knowledge and consent of Quijada. Said pipe was negligently and carelessly
installed so as to cause the joints to be improperly driven together and so as to cause the
asphalt coating thereof to become broken, chipped, and cracked, all of which facilitated
corrosion of said pipe and proximately contributed to the leaks which subsequently developed
therein, as described below.
The court did not include in its findings the wording of the escrow instructions that
constituted the contract signed by Quijada for release of the funds from escrow to pay the
bills. Such contract, signed by Quijada and executed by Palomar Mortgage Company,
contained the following initial paragraph:
The undersigned hereby instruct you to close your above numbered escrow, and you are
further instructed that from the loan proceeds in your hands you are to hold said funds for the
purpose of a loan to the Pure Water Company, Inc., a Nevada corporation from L. Quijada for
the purpose of providing an adequate water supply to Park Ridge Tract No. 1. It is further
understood that in the disbursing of said funds that the disbursement shall be to the Pure
Water Company, Inc., and Contractor, sub-contractors or materialmen jointly for the payment
of bills incurred by Pure Water Company, Inc., in the installation of the necessary facilities to
make water available for residents of Park Ridge Tract No. 1. The bills presented for payment
are to be jointly approved by Jay Fisher and L. Quijada. It being understood that L. Quijada is
agreeing to loan one-half (1/2) of the funds necessary to install the necessary facilities to
make water available to residents of this tract. The additional one-half (1/2) of funds are to be
provided by Pure Water Company, Inc.
The escrow instructions contained nothing further material to this appeal other than the
usual provision that in the event of controversy the title company might await the judgment of
a court concerning the disbursement of funds.
The court concluded that Southern Pipe was a third-party beneficiary of the agreement;
that Quijada having led the plaintiff to believe that it would be paid at full purchase price for
such pipe from the funds in escrow as a result of his contract with Palomar and Hines and
Pure Water is now estopped to deny such promise; that plaintiff was entitled to judgment
against Hines, Quijada, and Pure Water, jointly and severally, for $6,028.20, plus interest, at
7 percent from September 15, 1956; and that Pioneer Title should be ordered and directed to
remit to Southern Pipe the sums held in escrow not to exceed the amount of the judgment. It
entered judgment accordingly.
The theory of appellant is evidenced by its motion to strike and amend the findings and
conclusions. It moved to strike all the significant portions of paragraph 8 quoted above, which
fixed Quijada's liability under the written escrow instructions, and to insert in place thereof a
finding that such escrow agreement was preparatory to the concluding of an agreement in
terms and collateral between Quijada, Hines, Fisher, and Pure Water, which, however, was
never agreed upon, and that there was no legal consideration to Quijada for any legal binding
obligation to Palomar Mortgage. It moved to strike all of finding No. 9 and to strike all of
finding No. 10, and to insert in place thereof a finding that Quijada had made none of the
representations found in paragraph 10. Numerous other provisions of the court's findings, 10
in all, were asked to be stricken. Such motion to strike followed the theory of Quijada's
answer to the complaint and his special defenses thereto, and upon the theory, contrary to the
court's decision and findings, that Quijada's denials and special defenses had been proved by
Quijada. Such are the same points raised by Quijada on this appeal. They amount to the
contention that the findings are not supported by the evidence. The same contentions were
made in support of his motion to strike from the conclusions those parts thereof
concluding that Southern Pipe was a third-party beneficiary of the agreement and that
Quijada was estopped from denying his promise to Southern Pipe by the fact that it had
led Southern Pipe to believe that if it shipped the pipe it would be paid in full out of the
funds held in escrow.
same contentions were made in support of his motion to strike from the conclusions those
parts thereof concluding that Southern Pipe was a third-party beneficiary of the agreement
and that Quijada was estopped from denying his promise to Southern Pipe by the fact that it
had led Southern Pipe to believe that if it shipped the pipe it would be paid in full out of the
funds held in escrow.
[Headnote 1]
(1) The agreement is in no manner lacking in clarity and precision. It contains no
indication that it was tentative only and collateral to some other unidentified and
unmentioned agreement. Under the court's findings one of the third-party beneficiaries would
be the party furnishing the pipe essential to the housing project. The funds were in escrow for
that purpose. That the fund would thus become a loan from Quijada to Pure Water, repayable
by the latter to the former was simply an additional incident of the transaction.
[Headnote 2]
(2) Appellant contends that the enforcement of the written agreement is barred by the
statute of frauds, because all parties to this action are strangers to it. But Quijada was not a
stranger to it; he signed it. Even if it constituted an agreement to answer for the debt of Pure
Water for the purchase price of the pipe, it was in writing, and subscribed by the party
charged therewith. It thus complied with the statute. NRS 111.220.
[Headnote 3]
(3) Quijada next contends that, as the money held in escrow was money due him from
Palomar Mortgage Company and as he owed nothing to Southern Pipe or Pure Water, there
was no legal consideration to support a third-party beneficiary contract in favor of Southern
Pipe, on Pure Water, or Hines. However, the obtaining of water was essential to Quijada's
tract. It was essential to his compliance with his contract to supply water to the respective
purchasers of land and homes therein. It was essential to his compliance with the orders of the
Public Utilities Commission.
Public Utilities Commission. It was essential to Quijada's right to the funds deposited in
escrow by Palomar Mortgage. Pure Water was insolvent. The consideration was ample for the
support of a third-party beneficiary contract. See Hemphill v. Hanson, 77 Nev. 432 (1961),
366 P.2d 92.
[Headnote 4]
(4) Appellant contends (a point not raised in Hemphill v. Henson, supra) that lack of
privity forecloses Southern Pipe's right to sue on the contract. Appellant relies on Ferris v.
Carson Water Co., 16 Nev. 44 (1881), as disposing adversely of the beneficiary's right to sue.
In that case Ferris sued Carson Water Co. under his assertion that he was a beneficiary under
the defendant's contract with Carson City to supply it and its inhabitants with water for the
extinguishment of fires. A fire occurred in premises adjoining the premises of Ferris and the
insufficiency of the water pressure permitted the fire to be communicated to the plaintiff's
building and to destroy it. This court denied relief on the ground of lack of privity, citing as
authority Vrooman v. Turner, 69 N.Y. 280 (1877). For a complete discussion of Vrooman v.
Turner, how and why the rule was pronounced in that case, the development of the law, and
the subsequent virtual abandonment of the rule, See 4 Corbin, Contracts, secs. 806 and 827.
The status of the rule in Nevada, however, is clear. In Miliani v. Tognini, 19 Nev. 133, 7 P.
279, this court answered in the affirmative the question: Can a plaintiff maintain an action
on a simple contract to which he is not a party upon which he was not consulted, and to
which he did not assent, when it contains a provision for his benefit? The same was held in
Painter v. Kaiser, 27 Nev. 421, 76 P. 747, 750, 65 L.R.A. 672, 675, and in Acoustics, Inc. v.
American Surety Company, 74 Nev. 6, 320 P.2d 626, where, citing Painter v. Kaiser, supra,
and Miliani v. Tognini, supra, this court said: Where a contract contains a promise for the
benefit of one not a party to the contract, the third party beneficiary has a direct right of action
against the promisor.
isor.
2
We are compelled to reject as the present law in this state any language used in Ferris
v. Carson Water Co., supra, contrary to the holdings of this court last above cited. The
assignment of error that Southern Pipe could not sue Quijada for lack of privity is without
merit.
[Headnote 5]
(5) Error is assigned in the trial court's application of promissory estoppel. We find no
error. It is provided in NRS 52.060: The following presumptions, and no others, are deemed
conclusive: * * * 3. Whenever a party has, by his own declaration, act or omission,
intentionally and deliberately led another to believe a particular thing true and to act upon
such belief, he cannot, in any litigation arising out of such declaration, act or omission, be
permitted to falsify it. Quijada went to Azusa, California, made contact with the
representatives of Southern Pipe and made arrangements for the purchase of the pipe.
Southern Pipe's controller and credit manager insisted on knowing how the pipe would be
paid for. In response Quijada produced a copy of the escrow instructions and said: Here, this
is the way your money will be given to you through escrow, it will be paid out of escrow.
Southern Pipe's credit manager made a copy of the contract, verified the fact that the money
was on deposit in escrow by communicating with the escrow holder and accordingly made the
shipment. We agree with the trial court's conclusion that Quijada was estopped from denying
his promise to Southern Pipe.
[Headnote 6]
(6) Much of appellant's briefs would appear to find support in his own testimony. From
this he concludes that the findings are not supported by the evidence. The most that can be
said of this is that the evidence is conflicting, in which case we cannot interfere with the trial
court's acceptance of the testimony of the respondent's witnesses.
____________________

2
In Hemphill v. Hanson, 77 Nev. 432, 366 P.2d 92, we said in a footnote: In any event, the right of a third
party beneficiary, not a party to the contract, to maintain an action against the promisor is established law in this
state. Acoustics, Inc. v. American Surety Co., 74 Nev. 6, 320 P.2d 626.
In Force v. Peccole, 77 Nev. 143, 360 P.2d 362, the rights of a third-party beneficiary to sue under a written
agreement were presented to this court, but we refused to consider the question because it had not been raised in
the trial court.
court's acceptance of the testimony of the respondent's witnesses. The record contains ample
evidence to support the findings.
(7) We have considered other assignments of error made by appellant which, in our
opinion, are without merit and do not require discussion.
The judgment is affirmed.
____________
78 Nev. 281, 281 (1962) Cosgriff Neon Co. v. Mattheus
COSGRIFF NEON COMPANY, Inc., Appellant, v. H. E. MATTHEUS, A. E. BERNARD,
E. J. MANGINI and JACK MADDALENA, dba MANGINI and MADDALENA,
Respondents.
No. 4453
May 21, 1962 371 P.2d 819
Appeal from judgment of the First Judicial District Court, Ormsby County; Richard R.
Hanna, Judge.
The owners of a brick pylon, which collapsed, sued the contractors who constructed the
pylon, on ground that the pylon was negligently constructed. The conditional seller of a neon
sign, which had been erected on the pylon, and which was destroyed when the pylon
collapsed, by a complaint in intervention sought to recover the value of the sign from the
owners of the pylon and the contractors. The lower court rendered a judgment adverse to the
conditional seller, and it appealed. The Supreme Court, Thompson, J., held that the
contractors, who negligently constructed the pylon, were liable in tort to the conditional seller
of the sign, though there was no contractual privity between the contractors and the seller, and
though the owners of the pylon had accepted it from the contractors at the time it collapsed,
and that the owners of the pylon were not liable to the seller, where the defect in the pylon
was latent, and that the amount of recovery by the seller of the sign was the amount of the
price unpaid, not, however, exceeding the value of the sign.
John S. Halley, of Reno for Appellant.
Stewart, Horton & McCune and Donald Stuart Bab, of Reno, for Respondent Jack
Maddalena.
John Sanchez, of Reno, for Respondent Ernest J. Mangini.
William J. Crowell, of Carson City, for Respondents H. E. Matthews and A. E. Bernard.
Supreme Court would not consider contention of one of respondents that appellant was barred from
recovery by contributory negligence, where contributory negligence was not pleaded in defense, no finding
was made on point, and record did not disclose existence of contributory negligence as matter of law.
2. Sales.
Conditional seller, under proper circumstances, has claim for relief against third person who tortiously
damages or destroys property which was subject of sale.
3. Sales.
Contractors, who negligently constructed brick pylon, which collapsed so that neon sign erected thereon
was destroyed, was liable in tort to conditional seller of sign, though there was not contractual privity
between contractors and seller, and though owners of pylon had accepted it from contractors at time it
collapsed.
4. Master and Servant.
Owners of negligently constructed brick pylon, which collapsed so that neon sign erected thereon was
destroyed, were not liable in tort to conditional seller of sign, where defect in contractors' work in
construction of pylon was latent, so that owners could not have discovered defect on reasonable inspection.
5. Sales.
Amount of recovery by conditional seller of neon sign from contractors who negligently constructed
brick pylon, which collapsed so that sign thereon was destroyed, was amount of price unpaid, not, however,
exceeding value of sign.
OPINION
Pursuant to a conditional sales contract with the Carson Shopping Center, the appellant
Cosgriff Neon Company, Inc., installed and erected an electric neon sign on a brick pylon.
a brick pylon. On the day after such installation, the brick pylon collapsed. The sign was
totally destroyed. In the lower court, Cosgriff Neon Company, Inc., by complaint in
intervention, sought to recover the sum of $1,421.88 alleged to be the value of the sign.
1
It
was denied relief, the court stating, That the Intervenor, Cosgriff Neon Company, Inc., has
no privity with the Plaintiffs, or the Defendants, and its action, if any, lies against Carson
Shopping Center and Douglas Bryant,[
2
] who were not made parties to this action, nor
appeared therein. Appeal is taken from the judgment denying relief to Cosgriff Neon
Company, Inc., as intervenor.
1. The parties' contentions: (a) Cosgriff Neon. In seeking a reversal of the judgment
denying it relief, Cosgriff Neon urges upon us that it had a property interest in the destroyed
sign, having retained title thereto by reason of the conditional sales contract with Carson
Shopping Center; that the cause of the sign's destruction was the negligence of Mangini and
Maddalena in their construction of the brick pylon on which the sign was subsequently
erected; that it should be permitted to recover its loss directly from either the persons who
caused it, Mangini and Maddalena, or from the owners of the brick pylon, Mattheus and
Bernard, who had accepted the negligently constructed pylon from the contractors, and had
thereafter maintained it; that it is not necessary to seek recovery from Carson Shopping
Center to whom it had sold the sign and who remained obligated upon the contract; finally,
that the requirement of contractual privity, as a prerequisite to a valid claim for relief, is no
longer the law.
____________________

1
In the principal action below, Mattheus and Bernard, owners of the pylon, had sued Mangini and
Maddalena, builder of the pylon, alleging that its collapse was due to negligent construction. The trial court
found that the proximate cause of the destruction of the brick pylon was the faulty and negligent workmanship
of the Defendants, Ernest J. Mangini and Jack Maddalena. Judgment for $620 was accordingly entered in favor
of Mattheus and Bernard and against Mangini and Maddalena. No appeal was taken by Mangini and Maddalena.

2
Douglas Bryant signed the conditional sales contract for Carson Shopping Center.
[Headnote 1]
(b) Mangini and Maddalena. In seeking to uphold the judgment denying relief to Cosgriff
Neon, the contractors contend that the lack of contractual privity between themselves and
Cosgriff Neon is a complete defense; that the acceptance of the pylon by Mattheus and
Bernard, for whom it was built, relieved them of liability for damage thereafter sustained by
third persons; that there would be no end to litigation with third persons if liability did not
cease when the work contracted for was accepted; that the proximate cause of the damage to
Cosgriff Neon was broken by an intervening agency, the act of the owners Mattheus and
Bernard in accepting the pylon and thereafter maintaining it; that Carson Shopping Center
remained obligated on the conditional sales contract to Cosgriff Neon, with the result that
Cosgriff Neon sustained no damage; and finally, under the circumstances of this case,
Cosgriff Neon should not recover because it was contributorily negligent in erecting a heavy
sign upon the pylon when it should have known that it would probably not sustain its weight.
3

(c) Mattheus and Bernard. The owners agree with all of the arguments advanced by the
contractors, except that they do not subscribe to the contention that the proximate cause of the
pylon's failure shifted to them upon their acceptance of the contractors' work and subsequent
maintenance of the pylon. They make it clear that, in their view, Cosgriff Neon does not have
a claim for relief against anyone except on the contract against Carson Shopping Center
should it default in its payment obligation thereunder. However, they go further and argue
that if the court believes that contractual privity is not a prerequisite to Cosgriff Neon's claim
for relief, in any event they are not liable. They take this position because the trial court found
the proximate cause of the pylon's failure to rest with the contractors.
____________________

3
Contributory negligence was not pleaded in defense. No finding was made on the point. The record does not
disclose its existence as a matter of law. Hence, we will not consider this contention.
Additionally, they indicate that the defect in the construction of the pylon was latent in nature,
not observable by them, with the result that it would be unfair to impose a liability upon them
under such circumstances.
In resolving these contentions, we must first determine whether Cosgriff Neon, a
conditional seller, has a claim for relief at all, in the absence of contractual privity. If we
decide that it does, we must then decide whether the liability, under the circumstances here
present, rests with the contractors, the owners, or both.
2. Absence of contractual privity, of itself, does not bar relief. In denying relief to
Cosgriff Neon, the trial court gave as its reason the absence of contractual privity between
Cosgriff Neon and the contractors and owners from whom it sought recovery. We do not
agree.
[Headnote 2]
It should first be noted that a conditional seller, under proper circumstances, has a claim
for relief against a third person who tortiously damages or destroys the property which is the
subject of the sale. Annot., 67 A.L.R.2d 582. What constitutes the proper circumstances is a
matter concerning which case authority is not in harmony. Some courts permit the conditional
seller, or his assignee, to recover only if the buyer is in possession of the subject of the sale
and in default in his payments under the conditional sales contract. Universal Credit Co. v.
Collier, 108 Ind.App. 685, 31 N.E.2d 646; Harris v. Seaboard Airline Ry. Co., 190 N.C. 480,
130 S.E. 319, 49 A.L.R. 1452; Commercial Credit Corp. v. Satterthwaite, 107 N.J.L. 17, 150
A. 235. Some will not permit recovery against a third person if the buyer is in possession and
not in default in his payments at the time the loss or damage occurs. Louisville & N.R. Co. v.
Miller, 209 Ala. 378, 96 So. 322; Gas City Transfer Co. v. Miller, 107 Ind.App. 210, 21
N.E.2d 428. Other courts, in permitting recovery, have held that it is immaterial whether or
not the buyer is in default in his payments at the time of loss or damage. Bell Finance Co. v.
Gefter, 337 Mass. 69, 147 N.E.2d 815, 67 A.L.R. 578; First National Acceptance Corp. v.
Annett, 121 N.J.L. 356, 2 A.2d 650.
In the case at bar the record reveals that the buyer was in possession of the sign and in
default in its payment obligation when the loss occurred. The purchase price for the sign was
$1,421.88, $277.88 to be paid upon execution of the contract on November 13, 1957, and the
balance in 12 equal monthly installments of $101.05 commencing January 1, 1958. The pylon
crumbled and the electric sign was destroyed on January 14, 1958. The parties stipulated that
the buyer had paid only $250 when the loss occurred; apparently the installment payment due
January 1, 1958 had not been made. Under such circumstances, all authorities appear to agree
that the conditional seller has a claim for relief against the third person causing destruction of,
or damage to, the property which is the subject of the sale.
[Headnote 3]
However, the authorities collected in the annotation mentioned above do not deal with the
liability of a third person to the conditional seller when such third person is an independent
contractor who has negligently erected a structure that subsequently causes damage. Because
of this, the contractors Mangini and Maddalena insist that the general rule set forth in said
annotation has no application to the facts of this case. The validity of their position depends
essentially upon whether or not we choose to extend the doctrine exemplified by the
landmark decision of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.
1916F, 696, to govern the liability of a contractor for damage to a third person (Cosgriff
Neon) after completion of the contractors' work and the acceptance thereof by the owners.
MacPherson imposed liability for negligence upon the manufacturer of a car, who had sold it
to a retail dealer, who had resold it to the plaintiff. While the plaintiff was in the car, it
suddenly collapsed, causing him to be thrown out and injured. Justice Cardozo said: The
question to be determined is whether the defendant owed a duty of care and vigilance to
anyone but the immediate purchaser. He concluded that such a duty existed. We believe that
the same question is presented here, and that the "MacPherson rule" should be extended,
under the facts presented, to govern the liability of the contractors Mangini and
Maddalena to Cosgriff Neon, the absence of contractual privity being immaterial.
the same question is presented here, and that the MacPherson rule should be extended,
under the facts presented, to govern the liability of the contractors Mangini and Maddalena to
Cosgriff Neon, the absence of contractual privity being immaterial. It seems to us that the
contractors, for their own economic benefit, were engaged in work (constructing the pylon)
which they knew might affect the interests of persons other than the immediate contractee,
and could reasonably foresee the loss which occurred as the result of their negligent
construction of the pylon.
4
The Restatement, Torts, sec. 385, comment a (1934) has
recognized that contractors are bound by the general principles of negligence under the
MacPherson doctrine. In Prosser, Torts, p. 519 (2d ed. 1955), it is stated: It appears,
however, that the analogy of MacPherson v. Buick Motor Co. is at last being accepted.
Several recent decisions have placed building contractors on the same footing as sellers of
goods, and have held them to the general standard of reasonable care for the protection of
anyone who may foreseeably be endangered by the negligence, even after acceptance of the
work. Indeed, this court in Dixon v. Simpson, 74 Nev. 358, 332 P.2d 656, acknowledged the
newer rule when it said: Under the older rule applying generally to the case of an
independent contractor, such contractor was not liable for injury resulting from his work after
he had completed his contract and there had been an acceptance of his work by the contractee.
Under the newer rule, for which appellant contends, where the result of the contractor's work
is such that harm to third parties is foreseeable, his liability is not terminated by the
acceptance of his work by the contractee. In Dixon, the newer rule was not applied
because the loss did not result from the defective performance of the work. However, in the
present case, the loss which occurred directly resulted from the defective performance of the
contractors in constructing the brick pylon.
____________________

4
By the finding that the contractors were negligent, and therefore liable to the owners, Mattheus and Bernard,
the court necessarily determined that the contractors could reasonably foresee the pylon's collapse when a heavy
sign was erected upon it. That finding is not attacked by the contractors.
performance of the contractors in constructing the brick pylon. The entire problem is
discussed, reviewed, and the authorities collected in the annot. 58 A.L.R.2d 868. Though
MacPherson, the Restatement, supra, and most of the cases reviewed in the said annotation,
deal with bodily injury, we perceive no valid reason for failing to apply the same principle to
a property loss sustained by a third person. Therefore, we conclude that Cosgriff Neon, a
conditional seller having the right to immediate possession of the sign by reason of the
buyer's default in payment,
5
has a valid claim for relief against the contractors Mangini and
Maddalena for the sign's destruction; that such claim for relief is in tort for the breach of a
duty of care owed by the contractors to Cosgriff Neon, namely, that breach of the standard of
reasonable care for the protection of persons or property foreseeably endangered by their
negligence in the construction of the brick pylon, even after acceptance of work; and, that the
lack of contractual privity between the parties is not a defense.
[Headnote 4]
3. The contractors alone are liable to Cosgriff Neon under the facts of this case.
Substantial evidence establishes that the brick pylon was built onto an existing cement base.
Externally it appeared to have been properly constructed. However, the pylon collapsed
because the steel rods placed inside the structure were not tied to nor connected with the base
foundation. The defect in the contractors' work was latent. Because of this it cannot be
supposed that the owners of the pylon, Mattheus and Bernard, who had control of it after
acceptance, would or should have discovered the defect even upon a reasonable inspection.
This being so, their acceptance of the structure should not exonerate the contractors from
liability based upon a fictitious theory that the loss resulted because of the owners' failure to
maintain and repair, nor should a liability be imposed upon the owners under such
circumstances.
____________________

5
We are not called upon to determine and do not determine whether a conditional seller would have a claim
for relief if the buyer was not in default. Cf. Bell Finance Company v. Gefter, 337 Mass.69, 147 N.E.2d 815, 67
A.L.R.2d 578.
owners under such circumstances. See: Adams v. White Construction Co., 299 N.Y. 641, 87
N.E.2d 52 (Latently defective concrete work, not ascertainable on inspection); Clemens v.
Benzinger, 211 App.Div. 586, 207 N.Y.S. 539 (steel structure with defective bolts hidden by
concrete); Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R.2d 183 (a latent defect
involving the type of nails used and the manner of their use in construction); Hanna v.
Fletcher, 97 U.S.App.D.C. 310, 231 F.2d 469, 58 A.L.R.2d 847 (repair work so negligently
done that a railing rusted underneath a coat of paint after long use); cf. Underhill v. Anciaux,
68 Nev. 69, 226 P.2d 794 (where the MacPherson principle was applied in a case involving a
coca-cola bottle containing a foreign substance).
We do not decide whether the contractors would be either absolved from liability, or
jointly liable with the owners if the defect causing damage was patent, or latent but known to
the owners, nor do we decide whether the MacPherson doctrine should be applied where the
owners exercise active supervision and detailed inspection systematically throughout the
building of the structure. Such a factual picture is not presented by the record in this case.
[Headnote 5]
4. Amount of recovery. The sales price of the sign was $1,421.88. It was totally destroyed.
The buyer had paid $250 at the time of the loss, leaving a balance remaining of $1,171.88.
The measure of the conditional seller's damages in such case is the amount of the price
unpaid, not, however, exceeding the value of the sign. Lacey v. Great Northern Ry. Co., 70
Mont. 346, 225 P. 808, 38 A.L.R. 1331. No evidence was offered tending to show that the
value of the sign at the time of loss was a lesser sum than the price remaining unpaid.
We conclude, therefore, that the judgment below, denying relief to the intervenor, must be
reversed. The case is remanded, with direction to enter judgment in favor of Cosgriff Neon
Company, Inc., intervenor, against E. J. Mangini and Jack Maddalena, dba Mangini and
Maddalena, for the sum of $1,171.88, with interest thereon at 7 percent per annum, from
December 6, 1960, until paid.
thereon at 7 percent per annum, from December 6, 1960, until paid. The lower court shall fix
a reasonable attorney's fee for the intervenor. NRS 18.010.
____________
78 Nev. 290, 290 (1962) Scapecchi v. Harold's Club
VINCENT SCAPECCHI, Appellant, v. HAROLD'S CLUB, a Corporation, ST. CHARLES
BUILDING COMPANY, a Corporation, COLONY CLUB, JACK DOUGLAS, and FRANK
P. QUINN, Respondents.
No. 4485
May 25, 1962 371 P.2d 815
Action by pedestrian against abutting owners for injuries sustained in slip and fall in alley.
The lower court rendered summary judgment for defendants, and plaintiff appealed. The
Supreme Court, McNamee, J., held that contract whereunder city and abutting owners agreed
that owners should pave alley, and be responsible for good repair and maintenance of surface,
did not impose on owners joint and several liability to pedestrian for injuries sustained in slip
and fall allegedly caused by grease outside door of another abutting owner.
Affirmed.
Stewart, Horton & McCune, and Donald Stuart Bab, of Reno, for Appellant.
Goldwater, Taber and Hill, and Wayne L. Mortimer, of Reno, for Respondents Harold's
Club and St. Charles Building Company.
Guild, Busey & Guild, and William C. Thorton, of Reno, for Respondent Colony Club.
Vargas, Dillon & Bartlett, and Alex. A. Garroway, of Reno, for Respondent Jack Douglas.
Ernest S. Brown and Jack I. McAuliffe of Reno, for Respondent Frank P. Quinn.
That abutting owners acted in unison in paving alley created no duty to general public requiring them to
keep alley in reasonably safe condition.
Contract whereunder city and abutting owners agreed that owners should pave alley and be responsible
for good repair and maintenance of surface did not impose on owners joint and several liability to
pedestrian for injuries sustained in slip and fall allegedly caused by grease outside door of another abutting
owner. Stats. 1957, ch. 287, sec. 5.
3. Judgment.
Mere unverified allegations regarding characteristics of terrazzo surface did not present factual issues
which would preclude summary judgment in action for injuries in fall on terrazzo alley.
City has some discretion with respect to type of construction and paving materials, and has only duty to
use due care to construct and maintain sidewalks in reasonably safe condition as to such persons as may be
expected to use them in exercise of due care.
5. Discovery.
Plaintiff, by failing to object to hearing of motion for summary judgment while his requests for
admissions and answers to interrogatories were pending, waived right to require compliance with his
requests.
OPINION
Appellant during the daytime was walking in Lincoln Alley, a public street in the city of
Reno which connects with Douglas Alley to form a T. He slipped and fell directly in front of
the kitchen door of the Golden Hotel Coffee Shop. It was a clear day and the alley was dry.
The Golden Hotel, one of the defendants in the court below but not a party to this appeal, is
the owner of the property abutting the alley at the place where appellant fell. Appellant
testified that grease caused the fall, and that it was not visible because it blended with the
terrazzo surface of the alley.
terrazzo surface of the alley. This evidence was corroborated by Mr. and Mrs. Kern who also
were walking in the alley and saw appellant immediately after the fall. Mr. Kern helped
appellant to his feet and when I was assisting him I had to be careful I didn't slip myself.
Davis, a janitor employed by the Golden Hotel, had joined Mr. Kern in helping appellant to
his feet. He testified that he had mopped up grease with hot water and a strong detergent
where appellant had fallen a minute or two before appellant fell; that there was no grease at
all on the pavement which could have caused the fall; and that the pavement could have been
a little damp from the mopping.
In his complaint for damages resulting from the fall appellant alleges that the respondents
(and others not parties to this appeal) were negligent:
(a) In ordering, directing and arranging for the surface of Douglas Alley * * * to be paved
with terrazzo, a substance * * * extremely slippery when wet, and hazardous to persons
walking over and upon it.
(b) In failing to warn or notify the general public, * * * that the surface * * * was
extremely dangerous, hazardous and slippery when wet or when liquids of any kind were
upon it; * * *
(c) In failing to correct the slippery condition * * * by buffing, scratching, or roughing the
surface thereof * * *.
The respondents were joined in the complaint as parties defendant by reason of the fact
that they and others who owned or were interested in property bordering Douglas Alley and
Lincoln Alley had signed an agreement with the city of Reno, which permitted them to pave
the alley at their own expense with a terrazzo surface. The agreement provided that they
would keep a stockpile of materials for repair and maintenance, and that for a period of ten
years they would jointly and severally be responsible for the good repair and maintenance of
the terrazzo surface and that the city would be responsible for the maintenance of the base
concrete slab.
Summary judgments were granted in favor of the present respondents. Appeal is from such
judgments.
Because reference is made hereinafter to other parts of said agreement, we quote its entire
contents:
This Agreement made and entered into this 1st day of May, 1949, by and between the
City of Reno, a municipal corporation existing under and by virtue of the laws of the State of
Nevada, hereinafter called First Party, and the undersigned owners or lessees of property
abutting on Douglas or Lincoln Alleys in the City of Reno, hereinafter called Second Parties;
Witnesseth:
Whereas, First Party is about to commence paving of Douglas and Lincoln Alleys in the
City of Reno, the cost of which contemplated paving has been discharged by special
assessment against the property abutting on said Alleys, and
Whereas, Second parties desire that the surface of said alleys shall be paved and
completed pursuant to the plans and specifications prepared by Frank Green, Architect, and
Whereas, the surfacing of said Alleys as desired by Second Parties will add to the total
cost of paving said Alleys as originally contemplated by First Party, and
Whereas, Second Parties are willing to defray the additional cost of surfacing said Alleys,
and
Whereas, First Party is willing to permit Second Parties to cause the above-described
unusual surface to be placed on said Alleys on the terms and conditions hereinafter set forth;
Now, Therefore, the parties agree as follows:
1. That Second Parties may enter into an agreement with the contractor to whom the
contract for the paving of said Douglas and Lincoln Alleys was heretofore awarded, by the
terms of which agreement a terrazzo surface may be installed on said Alleys.
2. That Second Parties shall pay said contractor the cost of installing said terrazzo
surface on said Alleys.
3. That Second Parties shall stock-pile not less than ____________ yards of the materials
used in surfacing said Alleys and keep said materials available for repair and maintenance of
said Alleys for a period of not less than ten (10) years from date hereof.
4. That during a period of ten (10) years from date hereof Second Parties shall be, jointly
and severally, responsible for the good repair and maintenance of the terrazzo surface to be
installed on said Alleys and First Party shall be responsible for the maintenance of the base
concrete slab constructed in said Alleys during said period.
5. This agreement shall be binding upon the parties hereto and their heirs, executors and
assigns.
In Witness Whereof, the parties hereto have caused this agreement to be executed and
have hereunto set their hands and seals the day and year first above written.
City of Reno
By /s/ F. R. Smith, Mayor,
ATTEST:
Harold's Club /s/ Guy L. Lent, Secy.
St. Charles Bldg. Co. /s/ Guy L. Lent, Secy.
Bank Club /s/ Fred J. Lymbery
Frontier Club /s/ Joe S. Hobson
Murray's /s/ Murray E. Jacobs
Sam Frankovitch Wine House
/s/ N. W. Jacobs Ritz Hotel
/s/ James Powers Colony Club
/s/ Jack Douglas { Cherokee Club
{ Farley's Snack Bar
/s/ J. B. Sullivan Bank Club
/s/ James H. Lloyd Golden Hotel
/s/ Robert A. Ring (Mgr.) Harrah's Club
/s/ Lincoln Fitzgerald Nevada Club
Young Investment Co. Frank P. Quinn
Dominico Parmigiano
[Headnote 1]
Even though the respondents acted in unison in paving the alleys with a terrazzo surface,
this in itself created no duty to the general public which would require respondents to keep
the alleys in a reasonably safe condition. Major v. Fraser, 78 Nev. 14, 368 P.2d 369.
Appellant maintains, however, that such duty does arise from said agreement wherein they
promised to be responsible for the good repair and maintenance of the terrazzo surface; that
because of these quoted words, each respondent owed the general public the duty of keeping
clean and in a reasonably safe condition not only that part of the alleys abutting his property
but also the entire surface of both alleys.
We cannot accept such a construction of the agreement. In our opinion, we interpret the
words repair and maintenance to require respondents only to keep the surface of the alleys
in the same condition as when the surface was installed and not to require them to keep the
alleys clean. This is the only interpretation consistent with the Whereas clauses of the
agreement.
In Louisville & N. R. Co. v. Stanley, 232 Ala. 273, 167 So. 745, the railroad was under a
contract obligation with the city to construct and maintain a certain bridge. Stanley was
injured thereon because an accumulation of ice and snow was allowed to remain on the floor
of said bridge. The court there held:
We are of the opinion, and so hold that the duty placed upon the defendant was to keep
the bridge in repair from a structural standpoint and that it was not contemplated that it was to
keep said street free from foreign objects or defects, such as ice, banana peelings, or other
accumulations not inherently a part of the structure. We therefore hold that as a matter of law
the contract in question placed no duty upon the defendant to remove ice or snow or other
extrinsic substances from the bridge.
In City of Denver v. Denver City Cable Ry. Co., 22 Colo. 565, 45 P. 439, the word
maintain as used in a franchise ordinance was construed to mean that the cable car
company was required to keep certain syphons in repair or replace, and does not mean the
keeping of them clean and in a sanitary condition.
The fact that respondents assumed the duty of repair and maintenance can in no manner
imply that they assumed any duty owed by the city to the general public, for the city by statute
is immune from such liability.
1957 Stats. of Nev., ch. 287, sec. 5. The only burden shifted from the city to the respondents
by this agreement was the burden of the expense for the good repair and maintenance of the
structural aspects of the terrazzo surface. That this was the intent of the parties to the contract
is further established by the subsequent provision that the city retains the responsibility for
the maintenance of the base concrete slab.
[Headnote 2]
We conclude, therefore, that there is nothing in the contract express or implied which
imposes upon respondents a joint and several liability for injuries to persons caused by
nonstructural conditions of the terrazzo surface, particularly at places other than those
abutting their property.
[Headnote 3]
As heretofore stated, the evidence was in conflict as to whether appellant slipped because
of a greasy or moistened surface. Such conflict is immaterial on this appeal because
regardless of what condition contributed to appellant's fall, there was no evidence to charge
any of these respondents with the creation of the condition. Although there was evidence that
other persons had slipped in the alleys it was not shown what caused them to slip and no
evidence was presented to show that a terrazzo surface is inherently slippery when wet. The
mere unverified allegations regarding the characteristics of a terrazzo surface did not present
factual issues which would preclude a summary judgment. Dredge Corp. v. Husite Co., 78
Nev. 69, 369 P.2d 676.
[Headnote 4]
A city has some discretion with respect to the type of construction and the materials used.
As stated in Birmingham v. Monette, 241 Ala. 109, 1 So.2d 1, 3, 133 A.L.R. 1020, 1024:
The duty of the city is not to make [sidewalks] level nor on a uniform plane of decline,
nor to use the most approved material, nor to make them free from all danger, but it is its duty
to use due care to construct and maintain them in a reasonably safe condition as to such
persons as may be expected to use them in the exercise of due care."
such persons as may be expected to use them in the exercise of due care.
[Headnote 5]
Appellant complains that the lower court passed on the motions for summary judgment
before acting upon his requests for admissions and before answers to the interrogatories were
furnished. Any right of the appellant to require compliance with such requests prior to the
hearing of the motions to dismiss was waived by appellant's failure to object to the hearing of
the motions while such matters were pending.
Because of our conclusions herein, it is unnecessary to consider whether respondent Quinn
signed the agreement as an individual or in a representative capacity on behalf of Young
Investment Co.
Affirmed.
Badt, C. J., and Zenoff, D. J., concur.
Thompson, J., being disqualified, the Governor designated Honorable David Zenoff, Judge
of the Eighth Judicial District, to sit in his stead.
____________
78 Nev. 297, 297 (1962) Park v. Sierra Pacific Power Co.
WALTER M. PARK, MARY M. PARK, ALBERT B. PARK, and PAULINE PARK,
Appellants, v. SIERRA PACIFIC POWER COMPANY, a Maine Corporation,
and FRANK TRACY, Respondents.
No. 4486
May 28, 1962 371 P.2d 646
Action against power company which allegedly negligently turned off power interrupting
operation of plaintiff's electric well pump causing fire that damaged premises. The trial court
entered judgment for defendants and plaintiffs appealed. The Supreme Court, McNamee, J.,
held that even if question of power company suggested fire insurance coverage, plaintiffs
were not prejudiced where jury determined that defendants were not negligent and
awarded no damages.
McNamee, J., held that even if question of power company suggested fire insurance coverage,
plaintiffs were not prejudiced where jury determined that defendants were not negligent and
awarded no damages.
Affirmed.
Nada Novakovich, of Reno, for Appellants.
Woodburn, Forman, Wedge, Blakey and Folsom, of Reno, for Respondents.
Even if question of power company, which was sued for fire allegedly caused by turning off power
serving plaintiffs' property, thereby interrupting operation of electric well pump, suggested fire insurance
coverage, plaintiff were not prejudiced, where jury determined that company was not negligent and
awarded no damages.
2. Trial.
Unlimited admission of testimony of insurance adjuster was not prejudicial on theory that it permitted
introduction of evidence of insurance covering plaintiffs' loss, where plaintiffs, after making one objection
to such evidence, made no further objection to subsequent testimony of insurance adjuster and did not
request jury instruction that, if defendants were negligent, plaintiffs should be granted verdict for full
amount of damage irrespective of whether there was insurance.
OPINION
In this action appellants charge respondents with negligence in turning off power serving
appellants' property, thereby interrupting the operation of their electric well pump, and
causing a fire which was in progress to spread and damage their premises. The complaint
seeks damages for the loss of appellants' house trailer, buildings, and furniture, and for the
mental pain and anguish suffered as a result of the fire. The jury found in favor of the
respondents.
The sole issue on this appeal is whether the trial court erred in denying appellants' motion
for a mistrial after counsel for respondents had asked a question which appellants assert
suggested to the jury the existence of fire insurance.
During the cross-examination of appellant Walter M. Park, he was asked by counsel for
respondents: Now, did you and your wife, Mary, and your daughter Pauline, and your son
Leon, a couple of days after the fire have a conversation with a man by the name of Edwards
from the Whitby Company in connection with
The question was interrupted by appellants' objection, the jury was excused, and the
appellants in the absence of the jury moved for a mistrial. The motion was denied. Appellants
contend that the denial of the motion constituted prejudicial error. They argue that it is well
known that Whitby Company is in the insurance adjusting business, that the purpose of the
question was to suggest to the jury that the appellants' loss was covered by insurance, and that
a jury would thereby be inclined to give less damages. No evidence had been presented to the
jury concerning Whitby Company or the nature of its business.
In the absence of the jury, counsel for respondents explained that the sole purpose of the
question was to lay a foundation for the impeachment of the witness by subsequent testimony
of Edwards which would pertain to a prior inconsistent statement made by the witness
relevant to the cause of the fire. It is not denied that this was a proper foundation question and
that the testimony of Edwards would be relevant to the issues in the action.
1

[Headnote 1]
Even should we assume that appellants' argument would have merit had the jury brought
in a verdict for the appellants, it is not in the least persuasive in this case where the jury
determined that respondents were not negligent and awarded no damages. If the question
suggests fire insurance coverage, as claimed by appellants, they were in no manner prejudiced
thereby.
[Headnote 2]
The record discloses that appellants were advised by the trial judge that if the matter of
insurance was mentioned in the testimony to be given, there would be no basis for mistrial
"because it will be taken care of by instructions to the jury that if they find this fire was a
result of negligence on the part of the defendants, then they should grant to the plaintiff a
verdict for the full amount of proven damage, irrespective of whether or not there was
insurance, because if they received money from some insurance company of their own,
that is their own business, and they may have to pay it back to them.
____________________

1
The cause of the fire was material to the issue of negligence.
no basis for mistrial because it will be taken care of by instructions to the jury that if they
find this fire was a result of negligence on the part of the defendants, then they should grant to
the plaintiff a verdict for the full amount of proven damage, irrespective of whether or not
there was insurance, because if they received money from some insurance company of their
own, that is their own business, and they may have to pay it back to them. I think the proper
instructions can be prepared that would take care of the entire situation.
To this, counsel for appellants responded: Yes. However, we do not want to waive our
right to object to that line of questioning, Your Honor, for the purpose of the record.
No further objection was made to the cross-examination of appellant William M. Park and
no objection was made to the subsequent testimony of Edwards. Furthermore, appellants did
not request a jury instruction as suggested by the trial court.
Some evidence may be material and relevant for one purpose and inadmissible for
another purpose, either because it is irrelevant or because some rule excludes it for that other
purpose. It may be admitted, but only for the proper purpose, and under instructions of the
court limiting it to that proper purpose. * * * The party offering the evidence should state the
proper purpose; if his only expressed theory in offering it is an improper one, the court may
exclude the evidence. * * * And the adverse party should request the limiting instruction; if
he fails there is no reversible error in the unlimited admission. * * * Witkin, California
Evidence, sec. 115.
No prejudicial error having been shown, the judgment is affirmed.
Breen, D. J., concurs.
Thompson, J., being disqualified, the Governor designated Honorable Peter Breen, Judge
of the Fifth Judicial District, to sit in his stead.
Badt, C. J., being disqualified, appellants and respondents stipulated to the submission of
the appeal to Justice McNamee and District Judge Breen.
____________
78 Nev. 301, 301 (1962) Miller v. Schnitzer
RUSSELL F. MILLER, Appellant, v.
RETA SCHNITZER, Respondent.
No. 4454
May 29, 1962 371 P.2d 824
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Malicious prosecution action. The trial court rendered a judgment on a verdict for the
plaintiff, and the defendant appealed. The Supreme Court, Thompson, J., held that $15,000
special compensatory damage award was excessive and should be reduced to $8,000 and that
$50,000 punitive damage award was excessive and should be reduced to $5,000.
Reversed and remanded for new trial, subject to remittitur damnum.
Harry E. Claiborne, of Las Vegas, for Appellant.
Morton Galane, of Las Vegas, for Respondent.
On defendant's appeal, Supreme Court referred only to evidence relied upon by plaintiff to support
plaintiff's judgment on conflicting evidence.
2. Malicious Prosecution.
Record in malicious prosecution action disclosed that award of $15,000 as special compensatory
damages for attorney's fee paid in defense of criminal charge, lost earnings, cost of medical care and
impaired earning capacity was excessive and should be reduced to $8,000.
Damage to reputation is an item of general compensatory damages in malicious prosecution action.
Evidence sustained award of $30,000 as general damages to compensate for injury to reputation for truth,
humiliation, extreme embarrassment, mental suffering and inconvenience, all coming about as
proximate consequence of defendant's act in prosecuting plaintiff for alleged felony.
all coming about as proximate consequence of defendant's act in prosecuting plaintiff for alleged felony.
In malicious prosecution case, plaintiff may recover general money damages to compensate for injury to
reputation, humiliation, embarrassment, mental suffering and inconvenience, provided they are shown to
have resulted as proximate consequence of defendant's act; these elements of damage are wholly
subjective.
The extent of general damages to compensate for injury to reputation, humiliation, embarrassment,
mental suffering and inconvenience falls peculiarly within province of trier of fact in malicious prosecution
action.
Damages to compensate for injury to reputation, humiliation, embarrassment, mental suffering and
inconvenience of plaintiff suing for malicious prosecution should not be given by jury under influence of
passion or prejudice. NRCP 59(a) (6).
If judicial conscience of appellate court is shocked, such court will disallow or reduce award of general
money damages to compensate for injury to reputation, humiliation, embarrassment, mental suffering and
inconvenience of plaintiff suing for malicious prosecution.
Award of $50,000 punitive damages in malicious prosecution action was excessive and would be reduced
to $5,000, where defendant's net worth was about $51,000 and evidence called for special compensatory
damages in amount of $8,000 and general compensatory damages in amount of $30,000.
Punitive damages are recoverable in malicious prosecution action.
11. Damages.
Compensatory damages must be awarded before recovery of punitive damages is authorized.
Jury, in awarding punitive damages in malicious prosecution action, could not speculate that defendant
had undisclosed assets.
13. Damages.
The concept of punitive damages rests upon presumed public policy, to punish wrongdoer for his act and
to deter others from acting in similar fashion.
Evidence of defendant's net worth was received in malicious prosecution action to aid the jury in deciding
how large or how small its punitive allowance need be to promote public policy that purpose of punitive
damages is to punish wrongdoer for his act and to deter others from acting in similar fashion.
Where plaintiff suing for malicious prosecution has already been made whole by allowance of
substantial compensatory damages, her further enrichment by collection of additional damages labeled
punitive must be justified on ground of public policy, and not for reason that she has a right to such
additional sum.
The public interest is not served by awarding punitive damages in such amount as to financially annihilate
defendant sued for malicious prosecution.
17. Damages.
Compensatory damages are designed to make plaintiff whole for her injury, without reference to
defendant's ability to pay, while punitive damages are designed to punish defendant without reference to
plaintiff's injury.
Complaint in malicious prosecution action stated claim for relief even though there was no averment that
defendant, in making criminal complaint before justice of peace, filed written sworn statement as required
by statute. NRS 185.030.
Newspaper articles regarding criminal prosecution were admissible in malicious prosecution action on
issue of damage.
20. Trial.
The refusal to give requested instructions was not error where subject matter was covered by instruction
given.
Conflicting evidence in malicious prosecution action raised jury question as to whether defendant had
given housekeeping money to plaintiff to do with as plaintiff pleased or whether plaintiff had embezzled
such money. NRCP 50(a).
It is only when facts relating to probable cause are not in dispute that it becomes a question of law; when
such facts are in dispute, the issue is one of fact to be resolved by trier of fact in malicious prosecution
action.
Evidence in malicious prosecution action was sufficient to show want of probable cause for defendant's
criminal prosecution of plaintiff.
Malice can properly be inferred from want of probable cause for defendant's criminal prosecution of
plaintiff suing for malicious prosecution.
Evidence raised jury question whether defendant sued for malicious prosecution had established his
defense that he had acted upon advice of counsel, after seeking such advice in good faith and after a full
disclosure of facts within his knowledge.
Judgment would be reversed and cause remanded for new trial because of excessive damages unless
plaintiff should file remittitur damnum to extent designated, in which event the judgment, modified to
extent of such remission, would be affirmed.
OPINION
Reta Schnitzer commenced an action against Dr. Russell F. Miller to recover damages,
averring that he had maliciously and without probable cause charged her with the crime of
embezzlement, caused her arrest, confinement in jail, and subsequent appearance at a
preliminary hearing to defend herself, at which hearing she was exonerated. The jury returned
a verdict for her and awarded $15,000 as special damages, $30,000 as general damages, and
$50,000 as punitive damages. Judgment was entered accordingly. The defendant's motion for
new trial was denied. He appeals. The main question presented is whether the judgment
totaling $9,500 is excessive under the evidence presented.
[Headnote 1]
1. The evidence. The record on appeal presents a mass of evidence, both oral and
documentary. There appears to be a substantial conflict as to most, if not all, of the material
issues involved. The jury evidently chose to accept the evidence favoring the plaintiff's cause.
Therefore, in briefly stating the case, we shall refer only to the evidence relied upon by the
plaintiff to support the judgment.
Reta, a divorcee, lived in Las Vegas with her eight year old daughter. In 1954 she obtained
employment with an architectural firm, subsequently becoming its office manager, which
position she held when she met Russell in May 1957. She saw him from time to time
thereafter, but it was not until the end of 1958, after Russell had obtained a divorce, that
steady dating occurred. By April 1959 a daily companionship had come about and there was
discussion of marriage. His apartment was but a block or two from hers, and it was not an
inconvenience to live together as man and wife a good part of the time, which they did.
an inconvenience to live together as man and wife a good part of the time, which they did.
The marriage ceremony did not take place because Reta's parents were planning a visit in
1960, and all wished to have them witness the event. Furthermore, Russell had not yet
established a favorable rapport with the daughter. They exchanged keys to each other's
apartment. The doctor kept a reasonable clothing supply at each home. He gave Reta
housekeeping money when he started spending most of his time at her apartment, which
she used for food, cleaning, liquor, etc. That money was kept in a little box and was
considered (by her, at least) to be their joint money. The little box usually contained $400 or
$500, but at the time of their quarrel, to be later mentioned, contained $180.
During these happy times the doctor wished to deposit in a safe place a tidy sum which he
had saved to pay back taxes. Reta told him about a vault at her employer's place of
business, whereupon 150 one hundred dollar bills were put in manila envelopes, sealed and
placed in the vault.
In July 1959, only about two months after they had established the relationship just
described, an event occurred causing its abrupt termination. At four a. m. the doctor's
answering service called at Reta's apartment. Upon being informed that the doctor was not
there, Reta was asked to go to the doctor's apartment because it was an emergency and the
doctor's phone at his apartment had been busy. Reta obliged. Upon entering she noticed
female clothing strewn around the front room and, when she peeked into the bedroom,
another form was in bed with the doctor. Having been sincere in her marital intentions, she
found this breach of trust on the doctor's part to be unforgivable, and told him that they were
through.
Two or three days later Reta removed the manila envelopes from the vault. She wanted to
worry him about the money. When the doctor demanded its return, a dispute developed
over the total amount that had been put in the envelopes. Because of that dispute, Reta
thought it wise for an attorney to arrange for the opening of the envelopes and return of
the money.
thought it wise for an attorney to arrange for the opening of the envelopes and return of the
money. This was done. The president of a bank related that Reta had brought the envelopes to
his bank, where they were opened and found to contain 150 one hundred dollar bills. Reta
thereupon purchased a $15,000 cashier's check payable to Dr. Russell F. Miller. The doctor
received delivery on that check on July 23, 1959. Notwithstanding, the doctor on August 4,
1959 swore to a criminal complaint charging Reta with the crime of embezzlement, asserting
that Reta, as a bailee of sums in excess of $100, unlawfully appropriated and used the moneys
for purposes other than that for which the same were entrusted, with the intent to defraud the
owner thereof. The complaint was filed with the justice of the peace, and warrant of arrest
issued before the police department had completed its investigation. The complaint was
prepared at the request of Dr. Miller and not at the request of the police department.
Reta was arrested at her place of employment. Coemployees witnessed the event. She was
taken to the police department, booked, photographed, fingerprinted, undressed and examined
by the matron, and thereafter placed in a cell with other prisoners, one of whom asked, What
are you in for this time? She remained in jail for approximately one hour before bail was
arranged. The Las Vegas Review Journal, circulation 27,000, and the Las Vegas Sun,
circulation 19,000, daily newspapers, each had carried a news story, relating a version of the
embezzlement charge. After a preliminary hearing, the justice of the peace dismissed the
case.
As office manager of the architectural firm, Reta was paid a yearly salary of $8,402.45.
Primarily because of the publicity given the case, Reta's employment was terminated
September 10, 1959. She remained in Las Vegas for two or three weeks and, though she did
not personally seek other employment, friends inquired for her and were informed that her
services were not desired. She became nervous and irritable, could not sleep, and received
medical attention. School children were making life miserable for her daughter. Reta
determined that she could no longer make a life for herself and daughter in Las Vegas, and
moved to southern California.
she could no longer make a life for herself and daughter in Las Vegas, and moved to southern
California. On October 5, 1959 she obtained work with H. L. Yo Company. This job lasted
until October 25, 1959 when her resignation was requested because the one in charge had
learned of the Las Vegas felony accusation. She thereafter sought employment at various
places requiring a security clearance, but to no avail. In January 1960 she obtained work at
Tops Records, as an executive secretary, where she remained for six months. She was paid
$500 a month. She voluntarily resigned, to accept a similar position with Information
Systems, Inc., at $6,000 a year, which position she held at time of trial.
Evidence designed to establish Dr. Miller's wealth was received. It discloses that his net
worth, according to a financial statement given a bank in April 1959, was about $51,000; that
his statement of income in 1957 was $40,647.21 gross and $15,466.07 net, and in 1958,
$66,304.92 gross and $28,703.49 net. He was the principal stockholder and president of
Miller Enterprises, Inc., conducted an active medical practice, a drive-in restaurant and a
Tastee-Freeze business. As one of a group of medical men, he owned a one-ninth interest in
three corporations: COS Incorporated, which owned the building and improvements of a
medical arts center; LPX Incorporated, which conducted a laboratory business in that center;
and Paradise Pharmacy Incorporated, which carried on a pharmaceutical business.
[Headnotes 2, 3]
2. The problem of damages. Compensatory damages consisting of $15,000 special
damages and $30,000 general damages were awarded Reta. The amount given for special
damages is not fully supported by the record. The damages claimed by the complaint as
special in nature were (a) the attorney's fee paid in defense of the criminal charge; (b) lost
earnings; (c) cost of medical care; and (d) impaired earning capacity for three years. The total
amount requested was given. No evidence was offered as to the cost of her medical care. Nor
does the record establish that there has been an impairment of her ability or capacity to
perform the work for which she is trained and qualified.
which she is trained and qualified. Her claim is not for a physical injury diminishing her
ability to perform. Cf. Sierra Pacific Power Co. v. Anderson, 77 Nev. 68, 358 P.2d 892.
Rather it is essentially for a damaged reputation presently resulting in a lower annual income
than previously enjoyed. Damage to reputation, among other things, is an item of general
damage and presumably was included in the $30,000 general compensatory damage award.
The record does support an award of special compensatory damages in the following
particulars: (a) $3,000 attorney's fee paid in defense of the criminal charge; (b) $2,800
earnings loss while out of work from September 10, 1959 to some time in January 1960
(except for two weeks' employment during October 1959); (c) $2,200 earnings loss by reason
of reduced salary from January 1960 to trial in December 1960, all resulting in a total proven
dollars and cents loss of $8,000.
[Headnotes 4-7]
We turn to consider the general compensatory damage award of $30,000. In a malicious
prosecution case, the plaintiff may recover general money damages to compensate for injury
to reputation (in the instant case Reta's reputation for truth), humiliation, embarrassment,
mental suffering and inconvenience, provided they are shown to have resulted as the
proximate consequence of the defendant's act. These elements of damage are wholly
subjective. The monetary extent of damage cannot be calculated by reference to an objective
standard. The extent of such damage, by its very nature, falls peculiarly within the province of
the trier of fact, in this case, a jury. Brownfield v. Woolworth, 69 Nev. 294, 248 P.2d 1078,
251 P.2d 589; Burch v. Southern P. Co., 32 Nev. 75, 104 P. 225; Taylor v. Nevada C. 0. Ry.,
26 Nev. 415, 69 P. 858; Solen v. Virginia & T. R. R. Co., 13 Nev. 106. The only limitation
upon the judgment of the jury in this regard is that the damages thus awarded must not have
been given under the influence of passion or prejudice. NRCP 59(a) (6). If it appears that they
were so given, the award will be deemed excessive. Many courts have either disallowed or
reduced general compensatory damage awards deemed excessive, but such holdings have
not been based on any clearly expressed criteria.
either disallowed or reduced general compensatory damage awards deemed excessive, but
such holdings have not been based on any clearly expressed criteria. We are told that the mere
fact a verdict is large is not conclusive that it is the result of passion or prejudice, or other
considerations not found in the evidence. Schatz v. Devitte, 75 Nev. 124, 335 P.2d 783;
Wells, Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451; Burch v. Southern P. Co., supra;
Forrester v. Southern P. Co., 36 Nev. 247, 134 P. 753, 136 P. 705, 48 L.R.A. (N.S.) 1;
Christensen v. Floriston Paper Co., 29 Nev. 552, 92 P. 210; Taylor v. Nevada C. 0. Ry., 26
Nev. 415, 69 P. 858. Further, we are advised that awards made by other juries in similar cases
are not controlling, Wells, Inc. v. Shoemake, supra, though much respect appears to have
been accorded the comparison approach in Knock v. Tonopah & G. R. R. Co., 38 Nev. 143,
145 P. 939, L.R.A. 1915F, 3, and Cutler v. Pittsburg Silver Peak, 34 Nev. 45, 116 P. 418.
Such generalizations are of doubtful value.
[Headnote 8]
The core of the matter seems to be that an appellate court will disallow or reduce the
award if its judicial conscience is shocked; otherwise it will not. Our judicial conscience is
not shocked by the award of $30,000 as general compensatory damages in this case. Viewing
the record in the light most favorable to plaintiff, we find substantial evidence tending to
prove actual damage to her reputation for truth, extreme embarrassment, humiliation, mental
suffering and inconvenience, all coming about as the proximate consequence of the
defendant's act in prosecuting her for an alleged felony.
[Headnotes 9-11]
We will now consider appellant's claim that the award of $50,000 as punitive damages is
excessive. Such damages are recoverable in a malicious prosecution case. Anderson v. Snell,
57 Nev. 78, 83, 58 P.2d 1041, 62 P.2d 703. Compensatory damages must be awarded before a
recovery of punitive damage is authorized. Wolf v. Bonanza Investment Co., 77 Nev. 138,
360 P.2d 360; Novack v. Hoppin, 77 Nev. 33
Novack v. Hoppin, 77 Nev. 33, 359 P.2d 390. Appellate courts are believed reluctant to
disallow or reduce a punitive damage verdict, especially when the trial judge has denied a
motion for new trial based upon its excessiveness. Solen v. Virginia & T. R. R. Co., 13 Nev.
106; Seffert v. Los Angeles Transit Lines, 15 Cal.Rptr. 161, 364 P.2d 337; Ostertag v.
LaMont, 9 Utah 2d 130, 339 P.2d 1022. How the courts have reacted in particular cases is the
subject of the annot. 35 A.L.R.2d 308, entitled Excessiveness or inadequacy of damages for
malicious prosecution. One cannot avoid thinking that the general rules offered to explain
the reviewing court's decision are tailored to fit its feeling about the particular case before it.
If that court does not approve the verdict it will state that the jury was motivated by passion
or prejudice, Livesey v. Stock, 208 Cal. 315, 281 P. 70; or that a reasonable relationship
between the punitive and compensatory awards does not exist, Crowell-Collier Pub. Co. v.
Caldwell, 170 F.2d 941 (5th Cir. 1948); or that the amount of the award is enormous, Crane
v. Bennett, 77 App. Div. 102, 79 N.Y.S. 66. On the other hand, the reviewing court in
affirming the award may rely upon the converse of the reasons just mentioned, or upon a
strong presumption in favor of the verdict as confirmed by the trial judge in refusing a new
trial, Ostertag v. LaMont, supra, or some other equally plausible statement. It is evident that
such generalizations do not provide a workable standard in most cases.
[Headnotes 12-17]
However, in the case at bar, the record does furnish information which permits us to
appraise the $50,000 punitive damage award objectively. Evidence was received relevant to
the financial condition of Dr. Miller. Browand v. Scott Lumber Co., 125 Cal.App. 68, 269
P.2d 891; Marriott v. Williams, 152 Cal. 705, 93 P. 875. His net worth was established to be
about $51,000. The jury may have speculated that he had undisclosed assets. If so, it stepped
outside the evidence. Having already decided upon total compensatory damages of $45,000,
the jury knew the limits within which its further assessment of damages should be
confined if the doctor was not to be destroyed financially.
the jury knew the limits within which its further assessment of damages should be confined if
the doctor was not to be destroyed financially. The concept of punitive damages rests upon a
presumed public policy, to punish the wrongdoer for his act and to deter others from acting in
similar fashion. Net worth evidence was received to aid the jury in deciding how large or how
small its punitive allowance need be to promote the mentioned policy. The plaintiff had
already been made whole by the allowance of substantial compensatory damages. Her
further enrichment by the collection of additional damages labeled punitive must be justified
upon the ground of public policy, and not for the reason that she has a right to such additional
sum. In our judgment one may be punished without being destroyed. The public interest is not
served by the doctor's financial annihilation. We conclude that the jury was, to some extent,
influenced by passion and prejudice in allowing punitive damages in the amount of $50,000.
1

[Headnote 18]
3. Other assigned errors. Dr. Miller has assigned four errors in addition to his claim that
the judgment is excessive. First, he argues that the complaint fails to state a claim for relief,
because it does not aver that the doctor, in making the criminal complaint before the justice
of the peace, filed a sworn statement in writing as required by NRS 185.030. This argument
has no merit. It is directed to the sufficiency of the criminal complaint before the justice of
the peace, rather than to the civil complaint for malicious prosecution which initiated the case
before us. The elements of a claim for relief, i.e., want of probable cause for the criminal
prosecution, malice, termination of the criminal case, and damage, were properly averred.
____________________

1
At first blush it may appear inconsistent for us to conclude that the jury was not influenced by passion and
prejudice in granting plaintiff $45,000 in compensatory damages, but was improperly influenced when it
awarded $50,000 as punishment. This result comes about because compensatory damages are designed to make
the plaintiff whole for her injury, without reference to the defendant's ability to pay, while punitive damages
purpose to punish the defendant without reference to the plaintiff's injury.
Next the appellant complains that hearsay evidence was received, citing four separate
instances.
2

[Headnote 19]
It is urged that newspaper articles regarding the criminal prosecution should not have been
received. Such evidence was admissible on the issue of damage. Annot., 37 A.L.R. 658. It
was received for that limited purpose; it was not offered to prove the truth of the statements
contained therein. Cf. Las Vegas Sun v. Franklin, 74 Nev. 282, 296, 329 P.2d 867, 874.
[Headnote 20]
The appellant further urges that reversible error occurred when the trial court refused two
of his proffered instructions, each relating to whether he had probable cause to prosecute
respondent for embezzlement. The court instructed the jury that * * * if you find from the
evidence that the defendant in good faith believed in the guilt of the plaintiff at the time of
signing the complaint, and if you find that the facts given by the defendant were such as to
justify the belief in the mind of a person of reasonable intelligence and caution that the
plaintiff was guilty, there was probable cause and your verdict should be for the defendant; *
* *. The subject of the refused instructions was thus covered by the quoted part of the given
instruction; hence, no error occurred. Close v. Flanary, 77 Nev. 87, 360 P.2d 259; Pinana v.
State, 76 Nev. 274, 352 P.2d 824.
[Headnotes 21, 22]
Finally, the appellant contends that reversible error occurred when the court below refused
to grant his motion, made pursuant to NRCP 50(a), for a directed verdict made at the close of
the plaintiff's case in chief. It is his position that, though $15,000 had been returned to him
before institution of the criminal case, the $180 housekeeping money was never returned,
and that an embezzlement of the latter sum was established as a matter of law.
____________________

2
We shall not discuss three of the instances because, as to one, objection was not made; as to another, the
offered but objected to evidence was withdrawn; and, in the third instance, the question put was never answered.
matter of law. We do not agree. We regard the evidence as to the $180 sum to be conflicting.
The jury could believe that money to have been given the respondent to do with as she
pleased. Nonetheless, appellant urges upon us that the issue of probable cause is always one
of law, even when the evidence is in conflict. In this he is mistaken. It is only when the facts
relating to probable cause are not in dispute that it becomes a question of law. Bonamy v.
Zenoff, 77 Nev. 250, 362 P.2d 445. When such facts are in dispute, the issue is one of fact to
be resolved by the trier of the fact.
[Headnotes 23-25]
Our study of the record discloses that there is substantial evidence to show want of
probable cause for the criminal prosecution. We know that malice can properly be inferred
from such want of probable cause; Bonamy v. Zenoff, supra; Gattshall v. Sizemore, 71 Nev.
106, 281 P.2d 400; McNamee v. Nesbitt, 24 Nev. 400, 56 P. 37; Cassinelli v. Cassinelli, 24
Nev. 182, 51 P. 252; Fenstermaker v. Page, 20 Nev. 290, 21 P. 322. It was for the jury to
determine whether Doctor Miller had established his defense that he had acted upon advice of
counsel, after seeking such advice in good faith and after a full disclosure of facts within his
knowledge. Gatshall v. Sizemore, supra; Anderson v. Snell, 57 Nev. 78, 83, 58 P.2d 1041, 62
P.2d 703; McNamee v. Nesbitt, supra; Ricord v. Central P. R. R. Co., 15 Nev. 167. The jury
found against him, and there is substantial evidence to support its conclusion in this regard.
[Headnote 26] 334 P.2d S39; Knock v. Tonopah & G. R. R. Co., 3S Nev. 143
4. Conclusion. Because of the excessive award of special compensatory damages and punitive damages, we
decide that this cause must be reversed and remanded for a new trial; provided, however, that if respondent Reta
Schnitzer file herein within 10 days from receipt of a copy of this opinion, a remittitur damnum to the extent of
$52,000, the judgment, modified to the extent of such remission, will be affirmed.
3
Henry v. Baber, 75 Nev. 59,
____________________

3
The judgment, as conditionally modified, is computed as follows: Special compensatory damages, $8,000;
General compensatory damages, $30,000; Punitive damages, $5,000; Total, $43,000.
334 P.2d 839; Knock v. Tonopah & G. R. R. Co., 38 Nev. 143, 145 P. 939 L.R.A. 1915F, 3;
Konig v. Nevada C. O. Ry., 36 Nev. 181, 135 P. 141; Cutler v. Pittsburg Silver Peak, 34 Nev.
45, 116 P. 418; Christensen v. Floriston Paper Co., 29 Nev. 552, 92 P. 210. No costs are
allowed.
____________
78 Nev. 314, 314 (1962) McMahan v. District Court
THE STATE OF NEVADA on relation of STELLA MCMAHAN, Formerly STELLA
LENORE BAKER, Petitioner, v. THE FIRST JUDICIAL DISTRICT COURT of the STATE
OF NEVADA, THE HONORABLE FRANK GREGORY, Presiding Judge Thereof,
Respondent.
No. 4508
June 5, 1962 371 P.2d 831
Original petition for writ of mandamus.
Original proceedings to compel district judge to transfer action to another judge. The
Supreme Court, Badt, C. J., held that holding of a pre-trial hearing did not of and in itself
constitute the hearing of a contested matter so as to preclude the effectiveness of a later
affidavit of prejudice.
Petition granted.
Springmeyer, Thompson & Dixon and Robert A. Groves, all of Reno, for Petitioner.
Sidney W. Robinson, of Reno, for Respondent.
1. Judges.
Upon filing of a proper affidavit of prejudice, judge is deprived of all discretion in the matter and it
becomes his statutory duty to proceed no further in the action and to assign the case to another judge. NRS
1.230, subd. 5.
2. Judges.
Holding of a pre-trial hearing did not of and in itself constitute the hearing of contested matter so as to
preclude the effectiveness of a later affidavit of prejudice. NRS 1.230, subds. 5, 7.
3. Judges; Trial.
Purpose of pre-trial conference is to eliminate unnecessary issues, analyze and settle pleadings by
amendments if desirable or necessary eliminate matters of proof by admissions or stipulations, limit
number of expert witnesses, ascertain whether issues in jury cases may be referred to a master for findings
and discuss in a conference preliminary to trial other matters which may expedite the disposition of the
action; and if accomplished without contest do not constitute the hearing of a contested matter so as to
preclude the effectiveness of a later affidavit of prejudice. NRS 1.230, subd. 5.
OPINION
Does the fact of the holding of a pre-trial hearing, of and in itself, constitute the hearing of
a contested matter so as to preclude the effectiveness of a later affidavit of prejudice under the
provisions of NRS 1.230(5)?
1

There was pending in the respondent district court an action commenced by the relator
(formerly Stella Lenore Baker) against her former husband Fay Loftus Baker and his present
wife Margaret Rowe Baker, and after issue was joined and before a hearing on any contested
matter, a pre-trial conference was held on February 15, 1962, after which, on February 20,
1962, the respondent judge filed his pre-trial order, reading in part, as follows (emphasis
being supplied):
It is agreed that the action is one sounding in equity by which the plaintiff seeks to set
aside and vacate a portion of an agreement settling property rights, received in evidence and
adopted by the Court in a divorce action * * * between Stella Lenore Baker, plaintiff, vs.
____________________

1
A judge shall not act as such if either a party to a civil action in the district court shall file an affidavit
alleging that the judge before whom the action is to be tried has a bias or prejudice either against him or in favor
of an opposite party to the action. The judge shall proceed no further therein but either transfer the action to
some other department of the court, if there be more than one department of the court in the district, or request
the judge of some other district court of some other district to preside at the hearing and trial of the action. Every
affidavit must be filed before the hearing on any contested matter in the action has commenced, and if no
contested matter has been heard in the action prior to the day of the trial thereof, then the affidavit must be filed
at least 10 days before trial thereof, then the affidavit must be filed at least 10 days before the date set for the
trial of the action. * * * (Emphasis supplied.)
plaintiff, vs. Fay Loftus Baker, defendant. * * * A jury trial has been demanded and it is
agreed that the action being in equity, the jury verdict will be advisory only upon the Court.
In addition to the admissions made by the defendant's Answer, it is agreed and admitted
[that certain land filings had been made.]
The court then proceeded to state the five affirmative defenses interposed by the
defendants, and recited that the issues were joined according to the allegations of the
complaint and said affirmative defenses, other than as admitted. It then recited the stipulation
of the parties for the admission of defendants' exhibits 1, 2, and 3 and recited the
specification of each of the parties as to their respective witnesses, and ordered that the matter
proceed to trial upon the issues as herein defined and under the stipulations as herein stated
and in the pleadings admitted.
On the day following the filing of such pre-trial order, to wit, February 21, 1962, petitioner
filed the statutory affidavit of prejudice and paid the required fee. Thereafter the defendants
moved to strike the affidavit of prejudice on the ground that it was not timely filed under the
statute and for the further reason that plaintiff had waived any right to file such affidavit by
participating in the pre-trial conference. The respondent district judge granted the motion to
strike and refused to assign the action, and the relator filed this original petition for a writ of
mandamus requiring the respondent district judge to transfer the action to another judge in
accordance with the statute.
[Headnote 1]
It is clear that if the affidavit of prejudice was timely filed, the respondent judge was
thereby deprived of all discretion in the matter and it became his statutory duty to proceed no
further in the action and to assign the case to another judge as provided by law. State ex rel.
Moore v. District Court, 77 Nev. 357, 364 P.2d 1073; Tarsey v. Dunes Hotel, 75 Nev. 364,
343 P.2d 910; State ex rel. Kline v. District Court, 70 Nev. 172, 264 P.2d 396; State ex rel.
Beach v. District Court, 53 Nev. 444, 5 P.2d 535.
[Headnote 2]
This would not be so, however, if the holding of the pre-trial conference and the
participation of the parties therein constituted in itself the hearing of a contested matter. That
it did not is evident from the nature of the pre-trial order outlined above, and was therefore
timely.
The case is, we are satisfied, controlled by our holding in State ex rel. Kline v. District
Court, supra, in which we said: * * * Respondent insists that when the parties appeared in
court in response to the notice [to show cause why a temporary injunction should not be
issued] and the court announced the case, the hearing commenced, and it was too late, under
the statute, to file an affidavit of prejudice. But the parties had not even announced that they
were ready to proceed with the hearing. Preliminary matters as to establishing who were
counsel of record in the case and as to the recess to permit counsel for defendant an
opportunity to examine the second amended complaint were all without objection or contest.
The orders that followed were made upon stipulation. In no sense are we able to say with any
logic that the hearing of a contested matter in the action had commenced. Accordingly the
filing was timely under the statute. We may note that one of the orders there made on
stipulation was an order containing in effect a temporary restraining order.
The same situation and the same result apply here as indicated by the italicized portions of
the court's pretrial order above quoted, although the precise question here presented was not
determined by the Kline case.
Respondent contends that we should be concerned with what may happen at a pre-trial
conference rather than what actually happened, and seeks a ruling of this court to the effect
that pre-trial hearings, as such, are contested matters, citing State v. Clark, 125 Wash. 294,
216 P. 17, and State ex rel. Lefebvre v. Clifford, 65 Wash. 313, 118 P. 40.
We do not consider those cases to be in point. The Washington statute cited therein
contained no provision that the affidavit of prejudice must be filed before a hearing on a
contested matter nor a provision that if no contested matter be heard in the action prior to
the day of the trial thereof, the affidavit must be filed at least 10 days before the date set
for trial.
contested matter be heard in the action prior to the day of the trial thereof, the affidavit must
be filed at least 10 days before the date set for trial. Because of this the Washington court
built up a procedural rule of its own. In any event the Washington legislature abrogated the
rule laid down in State v. Clark, supra, and amended the prior law by legislative enactment.
State v. Funk, 170 Wash. 560, 17 P.2d 11; R.C.W. 4.12.050.
[Headnote 3]
The purpose of a pre-trial conference is to eliminate unnecessary issues, analyze and
settle the pleadings by amendments if desirable or necessary, eliminate matters of proof by
admissions or stipulations, limit the number of expert witnesses, ascertain whether issues in
jury cases may be referred to a master for findings and discuss in a conference preliminary to
trial other matters which may expedite the disposition of the action. 1A, Barron and
Holtzoff, Federal Practice and Procedure, p. 830 (1960); NRCP 16. It does not necessarily
contemplate a hearing on a contested matter. We prefer to determine timeliness by an analysis
of all the circumstances of the particular case. Even Washington now recognizes this. State v.
Funk, supra. The instant case is a classic example of a pre-trial hearing in which no contested
matter was heard. The affidavit of prejudice was not untimely.
Respondent appears to indicate that in the mere participation of a pre-trial hearing the
parties endeavor to learn the trial judge's attitude toward issues of fact and law and [that they
may not] thereafter seek to summarily remove the trial judge from further participation in the
trial of the case; that in the pre-trial conference the parties may determine the attitude of the
trial judge with reference to the ultimate outcome of the case and speculate upon whether or
not the ultimate rulings of the trial court will be favorable or unfavorable to his cause of
action and thereafter claim that an affidavit of prejudice is timely filed. If such appears, it
may be that relief could be afforded under other sections of the statute if actual or implied
bias could be shown to exist.
shown to exist. However, nothing in the record suggests such a situation.
Respondent also refers to cases where motions to dismiss or motions for a summary
judgment had followed pre-trial admissions and pleadings which showed that no issue of fact
remained to be determined. Such cases however are not determinative of, nor do they involve,
the question before the court.
Respondent further contends that as NRS 1.230 (7) provides that this section shall not
apply to the arrangement of the calendar or the regulation of the order of business, it does
apply to all other proceedings, and that the section eliminated only those two proceedings and
not pre-trial conferences, from which the legislative intent can be seen to be that pre-trial
conferences were not eliminated. We see no merit in this contention. The legislature simply
left all other proceedings to be classified as either contested or uncontested matters.
Respondent also contends that as this case was initiated in August of 1960 and the pre-trial
conference was not held until February, 1962, sinister implications result which should
foreclose petitioner from invoking the statute. This was rejected in Davis v. Irwin, 65 Ida. 77,
139 P.2d 474, where that court explained: Under our practice, where some districts have two
judges and others have only one, and where any judge may be called in from an outside
district to hear and try a case or hold a term of court, it often happens that neither the litigant
nor his attorney knows what judge will try the case until after it is set down for trial.
It is ordered that the respondent judge proceed no further in said action, but either transfer
the action to the other department of the court or request the judge of some other district court
of some other district to preside at the hearing and trial of said action, with due regard to the
provisions of NRS 1.240.
McNamee, J., and Breen, D. J., concur.
Thompson, J., being disqualified, the Governor commissioned Honorable Peter Breen, of
the Fifth Judicial District, to sit in his place.
____________
78 Nev. 320, 320 (1962) Whiteman v. Brandis
FREDDIE WHITEMAN, Appellant, v.
HOWARD BRANDIS, Respondent.
No. 4491
June 12, 1962 372 P.2d 468
Marshall, Judge.
Action to recover for architectural services. Judgment for the plaintiff in the trial court,
and the defendant appealed. The Supreme Court, Thompson, J., held that the complaint stated
a basis for recovery on quantum meruit, and that if complaint were treated as one based solely
upon contract rather than on quantum meruit, judgment for plaintiff must be upheld where
evidence supporting a quantum meruit recovery was received without objection and the issues
thereby raised were tried with the implied consent of the parties.
Judgment affirmed.
W. Albert Stewart, Jr., of Las Vegas, for Appellant.
Harvey Dickerson, of Las Vegas, for Respondent.
1. Work and Labor.
Complaint placing defendant on notice that a quantum meruit for recovery for architectural services may
be sought and averring that, following negotiations, defendant requested the plaintiff to proceed with
preliminary plans for an apartment building and that a contract had not been formalized and that plaintiff
performed requested services stated a claim for a quantum meruit recovery and it was not essential that
complaint aver that services had a specified reasonable value, notwithstanding complaint alleged that
defendant had breached contract to plaintiff's damages.
2. Work and Labor.
When one performs services for another at the latter's request and there is no express agreement as to
compensation, a promise to pay the reasonable value thereof will be implied.
3. Pleading.
If defendant considered complaint so vague and ambiguous that he could not responsively plead, he
should have moved for a more definite statement. NRCP 12(e).
4. Pleading.
If complaint for architectural services were treated as one based solely upon contract rather than on
quantum meruit, judgment for plaintiff must be upheld, where evidence supporting a quantum meruit
recovery was received without objection and the issues thereby raised were tried with the
implied consent of the parties.
and the issues thereby raised were tried with the implied consent of the parties. NRCP 15(b).
5. Trial.
An oral motion to dismiss made at the conclusion of the case is directed to the legal sufficiency of all the
evidence received during trial and it does not relieve a party from his failure during trial to object to
evidence.
OPINION
Brandis, plaintiff below, performed architectural services for Whiteman at the latter's
request. The district court found the reasonable value of such services to be $4,750 and
entered judgment in that amount, with costs. Whiteman appeals, contending that reversible
error occurred in permitting a quantum meruit recovery when the complaint alleged a breach
of an express contract and proof of such a contract was not made. The appellant admits that
he could not successfully assail the judgment, had the complaint requested relief on a
quantum meruit basis.
[Headnotes 1-3]
We believe that the appeal is without merit for the following reasons. First, the complaint
does fairly place Whiteman on notice that a quantum meruit recovery may be sought. It avers
that, following negotiations, Whiteman requested Brandis to proceed with the preliminary
plans for a 150-unit apartment building; that a contract had not been formalized; that
Brandis performed the requested services. This, without more, states a claim for the relief
granted. Berrum v. Georgetta, 60 Nev. 1, 93 P.2d 525, 98 P.2d 479. It is not essential that the
complaint aver the services performed to have a specified reasonable value. Maitia v. Allied
Land & Livestock Co., 49 Nev. 451, 465, 248 P. 893, 897. When one performs services for
another at the latter's request and there is no express agreement as to compensation, a promise
to pay the reasonable value thereof will be implied. It is true that, in addition to the averments
mentioned, the complaint stated that the defendant "has breached his contract with the
plaintiff" to plaintiff's damage in the sum of $4,750.
has breached his contract with the plaintiff to plaintiff's damage in the sum of $4,750. To
some extent such averment may be considered inconsistent with the prior allegation that a
contract had not been formalized. If Whiteman considered the complaint so vague and
ambiguous that he could not responsively plead, he should have moved for a more definite
statement. NRCP 12(e). He did not.
[Headnotes 4, 5]
Second, if we were to treat the complaint as one based solely upon contract, the result of
the trial must be upheld because evidence supporting a quantum meruit recovery was received
without objection and the issues thereby raised were tried with the implied consent of the
parties. NRCP 15(b). The case of Roberge v. Cambridge Cooperative Creamery Co., 243
Minn. 230, 67 N.W.2d 400, upon which appellant relies, is not in point. In that case the issues
relevant to a quantum meruit recovery were neither pleaded nor litigated by consent. The
defendant had objected to evidence as to the reasonable value of plaintiff's services. Such is
not the case before us. Indeed, the court in Roberge made it clear that consent is implied
when a party fails to object to evidence outside the issues raised by the pleadings.
Notwithstanding this fact, the appellant urges upon us that we should treat all evidence
relating to a quantum meruit recovery as having been timely objected to, because he made an
oral motion to dismiss at the conclusion of the case. Such a motion is directed to the legal
sufficiency of all evidence received during trial; it does not relieve a party from his failure,
during the trial, to object to evidence.
Affirmed.
____________
78 Nev. 323, 323 (1962) Napolitani v. Napolitani
REGINA M. NAPOLITANI, Appellant, v.
VINCENT J. NAPOLITANI, Respondent.
No. 4492
June 12, 1962 372 P.2d 206
Appeal from the Eighth Judicial District Court, Clark County; William P. Compton,
Judge.
Action for divorce by the husband. From a judgment for the husband in the trial court, the
wife appealed. The Supreme Court, Badt, C. J., held that where both spouses had been guilty
of cruelty justifying a divorce to either but the wife because of her religious beliefs refused a
divorce and desired separate maintenance, the husband would be granted the divorce where
he was the only one seeking it.
Affirmed.
Babcock & Sutton, of Las Vegas, for Appellant.
John Peter Lee, of Las Vegas, for Respondent.
1. Divorce.
Where the evidence would have justified a divorce for either party for cruelty but the wife did not desire
a divorce but separate maintenance, a divorce would be granted to the husband. NRS 125.120.
2. Divorce.
Recrimination has its basis in the clean hands doctrine of equity.
3. Divorce.
The doctrine of comparative rectitude and NRS 125.120 repudiated the doctrine of recrimination
which, having its basis in equity, required plaintiff to be blameless in order to obtain relief in the divorce
court.
4. Divorce.
Where both spouses had been guilty of cruelty justifying a divorce to either, but wife because of her
religious beliefs opposed a divorce and desired separate maintenance, doctrine of comparative rectitude
and NRS 125.120 repudiated the doctrine of recrimination, and plaintiff, though also guilty of wrong,
would be granted divorce where he was the only one seeking it.
OPINION
Regina has appealed from a judgment of divorce in favor of her husband Vincent. While
she lists five assignments of error, four of them have to do with Vincent's provocation of
Regina's conduct and his alleged condonation of her acts of cruelty, and with the
sufficiency of the evidence to sustain the findings of cruelty on the part of Regina.
provocation of Regina's conduct and his alleged condonation of her acts of cruelty, and with
the sufficiency of the evidence to sustain the findings of cruelty on the part of Regina. The
remaining assignment is that the trial court abused its discretion in applying the doctrine of
comparative rectitude.
The parties were married in Las Vegas, Nevada, January 25, 1960. Vincent had lived there
since 1953, pursuing his trade as a bartender. In 1959 he met Regina in New Jersey, the
parties corresponded, and Regina came to Las Vegas on January 17, 1960, where the parties
were married the following week. Vincent was a widower, with two teen-age boys.
(1) The marriage was a stormy one. The court had before it ample evidence to support a
conclusion that either party was entitled to a decree of divorce on the ground of extreme
cruelty, physical as well as mental. She scored a hit on him with a flatiron; he beat her to the
extent that she required hospitalization. She indicated that she still loved him, forgave him for
everything, and desired a reconciliation. To him this was unthinkable.
On all points as to which Regina asserts there is a lack of evidence to support the court's
findings (cruelty on her part, lack of provocation on Vincent's part, lack of condonation by
Vincent by the asserted sexual intercourse of the parties following Regina's acts of cruelty)
the evidence was in conflict, but there was substantial evidence to support the findings.
(2) At the conclusion of the testimony the court said: This appears to be one of those
unfortunate situations. It doesn't appear necessarily to arise out of the original fault of either
party. It is not easy for a woman to walk into an established family situation, particularly
where she has had no prior experience. I feel that there has been fault on both sides here, and
I believe firmly that the ends for which this marriage was originally entered into have fallen
apart, and I don't believe it would serve any social purpose or any purpose to the plaintiff or
the defendant that this marriage continue. The court then inquired of Regina's counsel as to
the possibility that Regina would amend her cross-complaint so as to seek a divorce
instead of asking for separate maintenance.
counsel as to the possibility that Regina would amend her cross-complaint so as to seek a
divorce instead of asking for separate maintenance. Her counsel replied: Your Honor, I have
often inquired of the defendant as to whether or not she wanted a divorce and I have, in fact,
advised her of the rule of law in this State that the Court very easily, if there is fault on the
part of each of the parties, for the best interest of society to dissolve the marriage and she has,
notwithstanding that advice, repeatedly informed me that she would not in any sense of the
word, particularly by reason of religious beliefs, seek a divorce.
After commenting on this, the learned trial judge proceeded: First I might say thison
the face of it I think the plaintiff has been guilty of cruelty. He has admitted on the stand that
he struck the defendant, even though he stated that there was provocation; however, it appears
clear to me that there is ample evidence of at least mental cruelty on the part of the defendant.
In view of the fact that Mrs. Napolitani does not and refuses to accept a divorce, I
certainly cannot force her to.
A decree of absolute divorce will be entered in favor of the plaintiff Vincent Napolitani.
[Headnote 1]
Under the facts our present statute is ample justification for the findings and judgment.
NRS 125.120 reads as follows: Parties to whom court may grant divorce. In any action for
divorce when it shall appear to the court that both husband and wife have been guilty of a
wrong or wrongs which may constitute grounds for a divorce, the court shall not for this
reason deny a divorce, but in its discretion may grant a divorce to the party least in fault, if
both parties seek a divorce, otherwise to the party seeking the divorce, even if such party be
the party most at fault.
[Headnotes 2-4]
Recrimination has its basis in the clean hands doctrine of equity. Divorce being an
equitable remedy, the plaintiff was required to be blameless in order to obtain relief in the
divorce court.
plaintiff was required to be blameless in order to obtain relief in the divorce court. Proof by
the defendant that the plaintiff was also guilty of wrong invoked the rule of recrimination and
the plaintiff was denied relief. The doctrine of comparative rectitude repudiated this principle.
Blankenship v. Blankenship, 51 Nev. 356, 276 P. 9, 63 A.L.R. 1127; Keezer, Marriage and
Divorce, sec. 497, 3rd Ed. (1946). Blankenship was decided in 1929 and was followed by the
enactment of NRS 125.120 in 1931 and its amendment in 1957 and 1959 as above noted. For
a further consideration of the doctrine see Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378
(1933); Jeffers v. Jeffers, 55 Nev. 201, 29 P.2d 351 (1934); Lamb v. Lamb, 57 Nev. 421, 65
P.2d 872 (1937); and Gabler v. Gabler, 72 Nev. 325, 304 P.2d 404 (1956). Finally in Sisson
v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961), this court, after discussing the least in fault
doctrine followed in Gabler v. Gabler, supra, remarked: The comparative rectitude statute
has, since Gabler v. Gabler, supra, been amended to permit one who is most at fault to obtain
a divorce if that person is the only one seeking a divorce.
There was, in our opinion, no abuse of the court's discretion in applying that doctrine.
Affirmed. No costs are allowed.
____________
78 Nev. 326, 326 (1962) Allgood v. State
DON ALLGOOD, Also Known as D. ALLGOOD, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 4458
June 18, 1962 372 P.2d 466
Appeal from judgment of the Third Judicial District Court, Lander County; John F.
Sexton, Judge.
Criminal prosecution. From an adverse judgment of the trial court, the defendant appealed.
On motion to dismiss the appeal, the Supreme Court, Thompson, J., held that Supreme
Court did not have jurisdiction to review a criminal case when notice of appeal was filed
before final judgment.
held that Supreme Court did not have jurisdiction to review a criminal case when notice of
appeal was filed before final judgment.
On motion to dismiss appeal. Motion granted.
Harry D. Anderson, of Reno, for Appellant.
Roger D. Foley, Attorney General, and George G. Holden, District Attorney, for
Respondent.
1. Criminal Law.
Supreme Court did not have jurisdiction to review of criminal case when notice of appeal was filed
before final judgment. NRS 177.060.
2. Criminal Law.
A verdict of jury is not a judgment of court nor is it a final determination from which an appeal may be
taken. NRS 177.060.
3. Criminal Law.
A notice of intention later to appeal cannot be considered to be a notice of appeal. NRS 177.060.
4. Criminal Law.
Statute concerning dismissal of an appeal for substantial irregularity does not confer appellate jurisdiction
in criminal cases and relates only to irregularities in the appeal occurring after appellate jurisdiction has
attached. NRS 177.170.
OPINION
[Headnote 1]
Does this court have jurisdiction to review a criminal case when the notice of appeal is
filed before final judgment? This question is presented by respondent's motion to dismiss the
instant appeal. The record discloses the following chronology:
August 1, 1961, a jury returned its verdict finding Allgood guilty of the crime of unlawful
possession and control of marijuana, a narcotic drug.
August 1, 1961, Allgood filed a notice of appeal, stating that he appeals to the Supreme
Court of Nevada from the judgment of conviction entered against said defendant by the Third
Judicial District Court in and for the County of Lander, State of Nevada, on the 1st day of
August, 1961."
for the County of Lander, State of Nevada, on the 1st day of August, 1961.
August 8, 1961, the court pronounced judgment on the jury verdict by its imposition of
sentence. Ex parte Salge, 1 Nev. 449. A notice of appeal was not thereafter filed.
[Headnotes 2, 3]
The provision of NRS 177.060, relevant to this case, permits an appeal to the Supreme
Court from a final judgment of the district court. It is apparent that the so-called judgment of
conviction entered August 1, 1961, mentioned in appellant's notice of appeal, cannot mean
the pronouncement of judgment by the court made seven days later. We are compelled to
construe said notice either as an appeal from the verdict of the jury, or as a notice of intention
to later file an appeal from the final judgment of the district court if and when that event
occurs. In either instance the appeal must fail. A verdict of the jury is not a judgment of the
court, nor is it a final determination. Indeed, after the jury verdict is returned but before the
time appointed for pronouncing judgment, judgment may be arrested or a new trial granted.
NRS 175.540, 175.560, 176.010. The only appeals authorized before pronouncement of final
judgment are as provided by NRS 177.060(2) (b), namely, from an order of the district court
allowing a demurrer or granting or refusing a new trial. Neither is involved here. Nor may we
consider a notice of intention later to appeal to be a notice of appeal. State v. Preston, 30 Nev.
301, 95 P. 918, 97 P. 388.
[Headnote 4]
Appellant urges upon us that the instant appeal should not be dismissed because the
premature filing of the document labeled notice of appeal is not a substantial irregularity.
NRS 177.170. We do not agree. Our jurisdiction to review this case has never been invoked.
The mentioned statute does not confer appellate jurisdiction in criminal cases. It relates only
to irregularities in the appeal occurring after appellate jurisdiction has attached. The case of
State v. Plunkett, 62 Nev. 258,
142 P.2d 893, 149 P.2d 101, is an example. There the defendant, after final judgment and
appeal therefrom, was tardy in presenting the bill of exceptions for settlement. This court
excused the delay.
The basic authority relied upon by appellant in seeking to preclude dismissal of his appeal
is the United States Supreme Court decision in Lemke v. United States, 346 U.S. 325, 74
S.Ct. 1, 98 L.Ed. 3. It was there held that a notice of appeal filed after sentence but before
formal entry of judgment would be considered as an irregularity not affecting substantial
rights under Rule 52(a) of the Federal Rules of Criminal Procedure. Lemke is different from
the case at bar for two substantial reasons. First, sentence had there been imposed before the
notice of appeal was filed. The imposition of sentence may be considered a final judgment.
Miller v. Aderhold, 288 U.S. 206, 53 S.Ct. 325, 77 L.Ed. 702; Berman v. United States, 302
U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204. Nevada so considers it. Ex parte Salge, 1 Nev. 449. In
the present case the so-called notice of appeal was filed before pronouncement of judgment
and imposition of sentence. Second, the Federal Rules of Criminal Procedure provide for the
motion for new trial, or, in arrest of judgment, to be made after entry of judgment. The
opposite is true in Nevada. Thus we see that in federal criminal practice the court judgment
will inevitably accord with the jury verdict subject to later change upon post judgment
motions, while in Nevada criminal practice the court judgment may not affirm the jury verdict
depending upon the court's view of prejudgment motions. This being so, it is understandable
that a federal court might consider a jury verdict to be a final judgment. Belton v. United
States, 104 U.S. App.D.C. 81, 259 F.2d 811. However, the mentioned Nevada statutes forbid
our doing so.
For the reason given, respondent's motion to dismiss this appeal is granted.
____________
78 Nev. 330, 330 (1962) Foster v. Lewis
GLEN FOSTER and MYRTLE FOSTER, His Wife, Appellants, v. MELVERN E. LEWIS
and THELMA LEWIS, His Wife, Respondents.
No. 4494
June 19, 1962 372 P.2d 679
Suit for specific performance of oral contract for sale and purchase of property. From an
order of the lower court vacating a default judgment entered against the defendants, the
plaintiffs appealed. The Supreme Court, McNamee, J., held that plaintiffs, who had been
making monthly payments to an agency for transmission to defendants for a period of more
than 10 years prior to commencement of action failed to exercise good faith and due diligence
in not inquiring of the agency as to residence of defendants and service of process by
publication was void.
Affirmed.
[Rehearing denied July 23, 1962]
Streeter, Sala & Richards, of Reno, for Appellants.
C. Lester Zahniser, of Sparks, for Respondents.
1. Process.
Personal service of process may not be made upon a person by delivering a copy of summons and
complaint to his collecting agent when agent has not been authorized by principal to receive service of
process. NRCP 4(d) (1, 6).
2. Process.
Where evidence that person served was not authorized by defendant to receive service of process is
uncontradicted, such denial of authority must be taken as true by the court for purposes of applying statute
concerning personal service of process. NRCP 4(d) (6).
3. Process.
An agency to accept service of process will not be implied. NRCP 4(d) (6).
4. Process.
Statutory provisions for acquiring jurisdiction over a defendant by other than personal service must be
strictly construed. NRCP 4(e) (1) (i).
5. Process.
Affidavit for publication of process giving the post office address of defendants in a previous year in
another state but not giving their present place of residence was insufficient. NRCP 4(e)(1)(i).
6. Process.
Plaintiffs, who had been making monthly payments to agency for transmission to defendants for a period
of more than 10 years prior to commencement of action for specific performance of oral contract for sale
and purchase of property, failed to exercise good faith and due diligence in not inquiring of agency as to
residence of defendants, and service of process by publication was void. NRCP 4(e)(1)(i).
7. Judgment.
Judgment based on a void order for publication of summons was void.
A correct judgment will not be reversed simply because it is based on a wrong reason.
9. Judgment.
A motion to set aside a void judgment need not be made within six months' period specified by rule.
NRCP 60(b).
OPINION
Appellants' complaint seeks specific performance of an oral contract for the sale and
purchase of real property located in Sparks, Washoe County, Nevada. An order for
publication of summons was obtained and summons was thereafter served upon the
respondents by publication and mailing. Appellants maintain that personal service of
summons in Washoe County was also made by a delivery of a copy of the summons and
complaint to one Vern Hursh, a member of the firm of Hursh Insurance and Real Estate
Agency, which was respondents' collection agent in Nevada.
After publication and mailing and the expiration of time allowed for answer, no answer
having been served or filed, the default of the respondents was entered on January 11, 1961,
and on March 13, 1961, judgment was entered. On October 23, 1961, respondents filed a
motion to vacate the judgment. Appeal is from the order granting this motion.
The lower court granted the motion upon the following grounds:
1. That no personal service of summons was made on either of the respondents.
2. That the purported agent had no authority to accept service of summons, and any
attempted service of summons upon him would be void.
3. That the judgment is either void or voidable and the court sitting as a court of equity has
broad discretion in setting aside a judgment where it appears that hardship might result.
Appellants rely upon not only service by publication and mailing, but also the alleged
personal service on Hursh.
The purported service upon Hursh was disputed in the trial court. The affidavit attached to
the summons purports to show that McBride, a deputy sheriff, served Hursh on September
21, 1960, and he so testified in court. On the other hand, Hursh in an affidavit in support of
the motion to vacate judgment and also in his oral testimony denied that he ever received a
copy of the summons and complaint in the action. Furthermore, he denied that he had any
authority from the respondents to accept service of process on their behalf. The respondents
likewise testified that they had not authorized Hursh to accept service of any process. It is not
clear from the record whether the trial court found that a copy of the summons and complaint
had been delivered to Hursh, but even if we assume that it was, the attempted service would
be a nullity because there was no evidence to show that Hursh had been authorized by the
respondents to receive service of process. In fact, the evidence is to the contrary.
[Headnote 1]
Appellants contend, nevertheless, that under NRCP 4(d) (6) which provides that personal
service may be made by delivering a copy of the summons and complaint to an agent
authorized by appointment or by law to receive service of process, Hursh having been their
agent to collect certain rent payments from appellants thereby was an agent by law to
receive service of process.
thereby was an agent by law to receive service of process. We cannot sustain this contention.
There is no statute or rule in this state which confers on an agent for collection authority to
accept service of process.
1
See Morfessis v. Marvins Credit (Mun.Ct. App. Dis. Col.), 77
A.2d 178, 26 A.L.R.2d 1082. The phrase an agent authorized by appointment to receive
service of process' is intended to cover the situation where an individual actually appoints an
agent for that purpose. 2 Moore's Fed. Practice, sec. 4:12, p. 52, (2d Ed.).
[Headnotes 2, 3]
Where the evidence that the person served was not authorized by the defendant to receive
service of process is uncontradicted, as in this case, such denial of authority must be taken by
the court as true, for the purpose of applying NRCP 4(d) (6). Griffin v. Illinois Centr. R. Co.,
D.C., 88 F.Supp. 552; Lawlor v. National Screen Service Corp., 10 F.R.D. 123. In the
absence of actual specific appointment or authorization, and in the absence of a statute
conferring authority, an agency to accept service of process will not be implied. 42 Am.Jur.,
Process, sec. 51 (1961 Cum. Supp., p. 7, n. 13.5).
With no valid personal service of summons upon the respondents, the judgment can be
sustained only if there has been proper substituted service.
[Headnote 4]
The statutory provisions for acquiring jurisdiction over a defendant by other than personal
service must be strictly pursued. State ex rel. Crummer v. District Court, 68 Nev. 527, 238
P.2d 1125; Perry v. District Court, 42 Nev. 284, 174 P. 1058. In order to confer jurisdiction
on the court to order substituted service, Glen Foster, one of the appellants alleged in his
affidavit for publication of summons as follows:
That the defendants are not in, and do not reside in, this State, but that they are, and
reside, out of this State.
____________________

1
As an example of an agent's being authorized by law see NRCP 4(d) (1) wherein those agents of a
corporation which may be served in a suit against the corporation are specified.
That in the year 1952, said defendants' post office address was: P. 0. Box 796, Lompoc,
California. That said address is the last place in which said parties resided to the knowledge
of affiant; that affiant has no reason to believe that defendants do not presently reside at said
address; and that affiant does not know and has never been informed and has no reason to
believe that said defendants now reside in the State of Nevada, and plaintiffs cannot therefore
make service of Summons on said defendants within this State.
That this action, as will appear by the Complaint on file herein is one which relates or the
subject of which is real property located in this State, in which the relief demanded consists in
part in excluding defendants from any interest therein in that said action is to compel
defendants to specifically perform a contract to convey real property located in this State.
That defendants are necessary and proper party defendants in this suit; that Summons
cannot be served on defendant in person within the State of Nevada; that defendants are not
now in and cannot be found in the State of Nevada.
NRCP 4(e) (1) (i) specifies what an affidavit for publication must contain: When the
person on whom service is to be made resides out of the state, or has departed from the state,
or cannot, after due diligence, be found within the state, or conceals himself to avoid the
service of summons, and the fact shall appear, by affidavit, to the satisfaction of the court or
judge thereof, and it shall appear, either by affidavit or by a verified complaint on file, that a
cause of action exists against the defendant in respect to whom the service is to be made, and
that he is a necessary or proper party to the action, such court or judge may grant an order that
the service he made by the publication of summons.
Provided, when said affidavit is based on the fact that the party on whom service is to be
made resides out of the state, and the present address of the party is unknown, it shall be a
sufficient showing of such fact if the affiant shall state generally in such affidavit that at a
previous time such person resided out of this state in a certain place {naming the place and
stating the latest date known to affiant when such party so resided there); that such
place is the last place in which such party resided to the knowledge of affiant; that such
party no longer resides at such place; that affiant does not know the present place of
residence of such party or where such party can be found; and that affiant does not know
and has never been informed and has no reason to believe that such party now resides in
this state; and, in such case, it shall be presumed that such party still resides and remains
out of the state, and such affidavit shall be deemed to be a sufficient showing of due
diligence to find the defendant.
a certain place (naming the place and stating the latest date known to affiant when such party
so resided there); that such place is the last place in which such party resided to the
knowledge of affiant; that such party no longer resides at such place; that affiant does not
know the present place of residence of such party or where such party can be found; and that
affiant does not know and has never been informed and has no reason to believe that such
party now resides in this state; and, in such case, it shall be presumed that such party still
resides and remains out of the state, and such affidavit shall be deemed to be a sufficient
showing of due diligence to find the defendant. This rule shall apply to all manner of civil
actions, including those for divorce.
The proviso of this rule can be utilized only when the affidavit states that the party on
whom service is to be made resides out of the state (which the affidavit here does) and that
the present address of the party is unknown (the affidavit is silent on this point). Since the
affidavit does not contain the requirements of the proviso, it is necessary to ascertain if
compliance has been made with the requirements of the first paragraph of the section. This
states, in part: When the person on whom service is to be made resides out of the state * * *
and the fact shall appear, by affidavit, to the satisfaction of the court or judge thereof * * *.
[Headnotes 5, 6]
We have heretofore held that if the affidavit states that the party resides out of the state and
that he was not then and cannot be found in the State of Nevada, and gives his present place
of residence out of the state, it states facts sufficient to give the court jurisdiction to order
publication of summons. (The affidavit herein does not give respondents' present place of
residence out of the state. It refers only to a post office address as their residence in 1952.)
2
Klepper v. Klepper, 51 Nev. 468, 279 P.
____________________

2
The order for publication of summons recites that it appears from the affidavit and from the complaint, and
the court here finds * * * that the residence and address of each defendant is P. O. Box 796, Lompoc,
California. The complaint makes no mention of the address of the defendants and, as noted above, the affidavit
P. 758. In all other cases where the defendant is a nonresident, the rule requires a statement of
facts, as distinguished from legal conclusions from which the court can determine whether
due diligence to find the defendant in the State of Nevada has been exercised. Perry v.
District Court, supra. That such showing of due diligence is required is exemplified by the
proviso of the rule which states that by use of the short form of affidavit such affidavit shall
be deemed to be a sufficient showing of due diligence to find the defendant.
Upon the hearing of the motion, evidence was introduced to show that appellants had been
making monthly payments to the Hursh agency for transmission to the respondents for a
period of more than ten years prior to the commencement of the action in the court below and
even made such payments during the pendency of the action and after judgment. It appears to
us that, under these circumstances, the whereabouts of the respondents could have been
ascertained by the exercise of some diligence. Good faith and due diligence on the part of
appellants, in our judgment, would have prompted them to inquire of the Hursh agency as to
the residence of their clients. See Wildes v. Lou Dillon M. Co., 41 Nev. 364, 170 P. 1046.
[Headnotes 7, 8]
Although the trial court never acquired jurisdiction to make the order for publication of
summons or to enter judgment, the lower court did not specifically hold to such effect.
____________________
states that P. O. Box 796, Lompoc, California, was the defendants' post office address in 1952. The order then
directs that two copies of the summons and complaint be deposited in the post office addressed to each
defendant at P. O. Box 796, Lompoc, California. In Wildes v. Lou Dillon M. Co., 41 Nev. 364, 170 P. 1046, this
court held that the term post office address does not meet the requirements of the statute for a declaration on
the part of the maker of the affidavit stating the residence if known. NRCP 4(e)(1)(iii) in the case of mailing
requires the summons and complaint to be deposited in the post office, directed to the person to be served, at his
place of residence. In Dawson v. Meier, 78 N.W.2d 420 (N.D. 1956), In holding that the terms residence and
post office address are not synonymous (as respects sufficiency of signatures to initiative petitions) stated:
The post office address of a person is the place to which his mail is directed in order that it may be delivered to
him by the post office. Or, in other words, it is the place where he gets his mail. His residence is the place where
he remains when not called elsewhere for labor or a special or temporary purpose and to which he returns in
seasons of repose.
make the order for publication of summons or to enter judgment, the lower court did not
specifically hold to such effect. Nonetheless, since the order was void, a judgment based
thereon would likewise be void. We have held that a correct judgment will not be reversed
simply because it was based on a wrong reason. Nelson v. Sierra Constr. Corp., 77 Nev. 334,
364 P.2d 402. There is no reason why this rule should not be extended to an appealable order.
[Headnote 9]
Under NRCP 60(b) a motion to set aside a void judgment is not restricted to the six
months' period specified in the rule. NRCP 54(a) provides that the word judgment as used
in these rules includes any order from which an appeal lies. Therefore there is no merit to
appellants' contention that the motion to vacate the judgment was not timely made.
Affirmed.
____________
78 Nev. 337, 337 (1962) Fiannaca v. Gill
TONY FIANNACA, Petitioner, v. E. E. GILL, City Clerk of the City of Reno, Nevada,
Respondent; JOHN MARSHALL, SR., Intervenor.
No. 4522
T. L. WITHERS, Petitioner, v. E. E. GILL, City Clerk of the City of Reno, Nevada,
Respondent; BUD BAKER, Intervenor.
No. 4523
NELSON B. NEFF, Petitioner, v. E. E. GILL, City Clerk of the City of Reno, Nevada,
Respondent; GEORGE CARR, Intervenor.
No. 4524
June 22, 1962 372 P.2d 683
Original petitions for alternative writs of mandate. Proceeding to compel city clerk to call
special election for recall of councilmen and mayor. The Supreme Court, McNamee, J., held
that recall petitions which were not verified by one of the signers thereof, as required by
statute, were inadequate and failure to comply with statutory safeguards for recall
procedures was fatal.
verified by one of the signers thereof, as required by statute, were inadequate and failure to
comply with statutory safeguards for recall procedures was fatal.
Petitions denied.
John C. Bartlett and H. Dale Murphy, of Reno, for Petitioners.
Roy Lee Torvinen, City Attorney, and Richard Brietwieser, Assistant City Attorney, of
Reno, for Respondent.
Stewart, Horton & McCune, and Donald Stuart Bab, of Reno, for Intervenor John
Marshall, Sr.
Sidney W. Robinson, of Reno, for Intervenor Bud Baker.
Peter Echeverria, of Reno, for Intervenor George Carr.
1. Officers.
Statute requires that verifier of recall petition must be one of the signers thereof, and where a number of
copies are attached together and signer of one copy verifies that copy, that does not satisfy requirements of
statute as to all such joined copy. NRS 306.030.
2. Officers.
Where affidavit on recall petition falsely recited that verifier was one of signers thereof and such recital
was untrue, verification was ineffective. NRS 306.030.
3. Officers.
Statutory provisions on recall petition are intended to safeguard operation of recall procedures provided
for by constitution and failure to comply with statutory requirements is fatal. NRS 306.020, 306.030;
Const. art.2, sec. 9.
OPINION
Three separate proceedings were filed herein, each seeking a writ of mandate to require the
Reno city clerk to call a special election for the recall of city councilmen George Carr and
John Marshall, and city mayor Bud Baker.
Baker. Said councilmen and mayor were permitted to intervene.
The pleadings are identical except as hereinafter noted. It appears therefrom that on March
12, 1962 the petitioners for recall were residents of and registered voters in Reno, Nevada,
and as to the councilmen, the petitioner in each case was a qualified voter in the particular
ward from which the councilman was elected. On March 12, 1962, there were filed with
respondent city clerk at his office three petitions, each demanding the recall of one of said
intervenors. The said petitions for recall consisted of numerous copies or series of copies
bound together, each printed copy containing a verification of a person who was a registered
voter and elector of the city of Reno. The Baker petition for recall consisted of 185 printed
forms containing 6,451 signatures, of which 5,466 compared favorably with the signatures on
file in the city of Reno Official Register of Voters. The Carr petition for recall consisted of 35
printed forms containing 1,082 signatures, 880 of which compared favorably with those on
file in Ward 1 of the city of Reno. The Marshall petition for recall consisted of 51 printed
forms containing 1,467 signatures, of which 1,122 compared favorably with those on file in
Ward 6 of the city of Reno.
1
Some of the verifications on the various sections above referred
to were not made by an individual who had signed that particular section or copy of the recall
petition, but each verifier had signed the petition for recall with the exception that one copy
of the Marshall petition was not verified by a person who had signed that petition for recall.
The form of the verification attached to each copy of the petitions for recall were identical
and state: ............................, being first duly sworn, deposes and says: That the undersigned
is one of the signers of the attached petition; that said petition was exhibited to each of the
signers prior to the signature being affixed thereto; that each signature to the paper
appended is a genuine signature of the person whose name it purports to be; and swears
that the statements therein made are true to the best of the undersigned's knowledge and
belief."
____________________

1
The pleadings do not positively allege that the signatures compared favorably, but rather allege that they
compared favorably according to the certification of H. K. Brown, County Clerk and ex-officio Registrar of
Voters.
thereto; that each signature to the paper appended is a genuine signature of the person whose
name it purports to be; and swears that the statements therein made are true to the best of the
undersigned's knowledge and belief.
None of the petitions for recall alleges the number of signatures required under the
constitution or statutes for a petition for recall.
Nev. Const., art 2, sec. 9, provides in part as follows: Every public officer in the State of
Nevada is subject, as herein provided, to recall from office by the qualified electors of the
state, or of the county, district, or municipality, from which he was elected. For this purpose
not less than twenty-five per cent (25%) of the qualified electors who vote in the state or in
the county, district, or municipality electing said officer, at the preceding election, for justice
of the supreme court, shall file their petition, in the manner herein provided, demanding his
recall by the people. * * * If he shall not resign within five (5) days after the petition is filed,
a special election shall be ordered to be held within twenty (20) days after the issuance of the
call therefor, in the state, or county, district, or municipality electing said officer, to determine
whether the people will recall such officer. * * * Such additional legislation as may aid the
operation of this section shall be provided by law.
Pursuant to said constitutional provision, NRS 306.020 and 306.030 were enacted. The
former provides:
1. For the purpose of recalling any public officer, there may be filed with the office with
whom the petition for nomination to such office is required by law to be filed a petition
signed by electors who voted in the state, or in the county, district or municipality electing
such officer, equal in number to 25 percent of the votes cast in the state, or in the county,
district or municipality, for the office of justice of the supreme court at the last preceding
election.
2. The petition shall also contain the residence addresses of the signers * * *.
NRS 306.030 provides: "The petition shall consist of any number of copies thereof,
identical in form with the original, except for the signatures and residence addresses of
the signers.
The petition shall consist of any number of copies thereof, identical in form with the
original, except for the signatures and residence addresses of the signers. Every copy shall be
verified by at least one of the signers thereof, who shall swear or affirm, before an officer
authorized by law to administer oaths, that the statements and signatures contained in the
petition are true.
The respondent and the intervenors have raised the following objections to the granting of
the writs of mandate:
1. Petitions containing the required number of signatures were not verified by at least one
of the signers thereof.
2. The verifications of the petitions were made on knowledge and belief, a form not
prescribed by said statutes.
3. The certificate by county clerk Brown is a nullity because (a) it is executed by a person
other than the city clerk, (b) it does not purport to authenticate the genuineness of the
signatures on the recall petitions, but merely states that they compared favorably with the
signatures on the original affidavits of registration, and (c) it cannot be determined therefrom
whether the signatures are those of persons who voted in the district or municipality electing
the particular officer who is the subject of the recall petition or whether the signatures in part
are those of persons who registered subsequent to the preceding election wherein said officers
were elected.
4. The sponsors of the recall movement have created a situation which prevents the
respondent clerk from determining the validity of the signatures on the recall petitions,
because in December 1961, there was initiated in the Second Judicial District Court of the
State of Nevada, in and for the County of Washoe, a proceeding wherein that court entered its
order directing the city clerk of the city of Reno to deliver the returns including the names of
those who voted in the primary and general elections of 1959 to the county clerk, and that
pursuant to said order all of said records were removed from the city clerk's office and
deposited with the county clerk; that on February 7, 1962, a second proceeding was
initiated in said court wherein declaratory relief was sought regarding the proper
procedure for recall.
city clerk's office and deposited with the county clerk; that on February 7, 1962, a second
proceeding was initiated in said court wherein declaratory relief was sought regarding the
proper procedure for recall. In this latter proceeding, various copies of the recall petitions
were deposited with the county clerk for comparison by the county clerk with the signatures
of the registered voters on file in his office. The various copies of said recall petitions on
March 12, 1962 were finally filed with the respondent clerk, together with said certification
of the county clerk, and it was sought thereby to compel the city clerk to call a special
election, notwithstanding the fact that the city clerk was a defendant in said declaratory
judgment proceeding which recognized that doubts existed with reference to recall
procedures. The last pleading in said declaratory judgment proceeding was filed on March 26,
1962. No further action has been taken therein. On May 14, 1962, the three petitions for writ
of mandate were filed in this court.
5. It is also contended that writs of mandamus should not issue because petitioners have a
plain, speedy, and adequate remedy in the ordinary course of the law.
It is necessary to consider only respondent's and intervenors' first objection.
Although it is impossible for this court to determine from the records before us how many
signatures of qualified voters were necessary to require the calling of a special election, it
does appear with respect to each of the petitions for recall that if the copies of the recall
petitions which were verified by one who was not a signer thereof were disregarded, the
remaining copies would not contain enough signatures to require a recall election.
[Headnote 1]
Each of the petitions for recall contains a number of copies thereof identical in form
except for the signatures and residence addresses of the signers. It is impossible to ascertain
what person or persons circulated the petitions for signatures. We cannot ascertain whether
the verifiers of the various copies were likewise the circulators of the particular copy. It does
appear, however, that NRS 306.030 requires that the verifier of a copy of the petition must
be one of the signers thereof.
that NRS 306.030 requires that the verifier of a copy of the petition must be one of the signers
thereof. This is clear and needs no construction. We cannot accept petitioners' contention that
where a number of copies are attached together and one signer of one copy verifies that copy,
this satisfies the requirements of the statute as to all such joined copies. Each copy of the
petition contains three pages in blank and each of these pages contains spaces for the
signatures of 35 registered voters and their residences. In other words, if a signer of the
particular copy, as the circulator thereof, was able to obtain more than 105 signatures it would
be a simple matter to insert one or more signature pages in that particular copy of the petition
in order for his verification to apply to all of the signatures. On the other hand, if he signs one
copy of the petition and properly verifies the same, he cannot truthfully verify other petitions
which do not contain his signature where the verification recites under oath that he is one of
the signers thereof.
In Buohl v. City of Beverly, 89 N.J.L. 378, 98 A. 270, the court said:
The statute requires that one of the signers of each paper constituting the petition shall
make an oath that each signature to the paper appended is a genuine signature of the person
whose name it purports to be. * * * In the present case there are four papers. One of them,
containing 78 names out of the total of 171 is verified only by the affidavit of one who did
not sign the paper itself. Without this paper, there are not enough signatures to comply with
the statute. This is fatal to the application.
In Caton v. Frank, 56 Nev. 56, 44 P.2d 521, this court construed a statute which provided
for the amendment of a city charter on petition signed by 60 percent of the qualified voters.
The statute provided that one of the signers of each such petition should swear that the
statements therein made are true to the best of knowledge and belief. The verification of the
petition in that case did not show that the person making the affidavit was himself a signer of
the petition. This court held that the verification was defective in that respect and that for
this and other reasons the petition to amend the city charter was insufficient to justify the
issuance of a writ of mandamus as prayed for.
that the verification was defective in that respect and that for this and other reasons the
petition to amend the city charter was insufficient to justify the issuance of a writ of
mandamus as prayed for.
[Headnote 2]
In the present case, although the affidavit recites that the verifier is one of the signers
thereof, this recital is untrue and, therefore, the reasoning in Caton v. Frank, supra, would be
applicable herein.
In the case of In re Opinion of the Justices, 114 Maine 557, 95 A. 869, the Supreme
Judicial Court of Maine answered certain questions propounded by the governor concerning
verification of referendum petitions. Under the constitution of that state written petitions were
required to be verified as to authenticity of the signatures by the oath of one of the petitioners
certified thereon. The court there said, It is clear, we think, that in order to warrant the
counting of the names on the petition * * * it must contain the verification of the authenticity
of the signatures by the oath of one of the petitioners. The following questions and answers
appear in the opinion:
Should names be counted if attached to petitions where the town clerk has certified that
the names of the petitioners appear on the voting list of his city, town, or plantation as
qualified to vote for Governor, but the signatures to which petitions are not verified as to
authenticity by the oath of any petitioner certified thereon? Answer: We answer in the
negative.
In certain cases it appears that the verifying petitioner did not sign the petition as a
petitioner, which he verifies, but did sign some other petition. In such case shall the names on
the petition verified by him be counted? Answer: We answer in the negative.
Would it affect the counting of names on petitions just described if the verifying
petitioner, although failing to sign the petition as a petitioner, which he verified, sign a
similar petition as a petitioner in the same town or city; such latter petition being properly
certified by the town clerk? Answer: We think the verification of a petition must be by a
petitioner whose name is upon the petition verified.
Can the names on the petition be counted where the name of the verifying petitioner does
not appear on any petition? Answer: We answer in the negative.
Can a verifying petitioner who failed to sign the petition by inadvertence, but did sign as
verifying petitioner, and his verification was duly taken by the magistrate, be regarded as a
petitioner as to entitle the names of the petitioners to be counted? Answer: We answer in the
negative. See also Dawson v. Meier, 78 N.W.2d 420 (N.D. 1956); Newman v. Secretary of
the Commonwealth, 339 Mass. 749, 162 N.E.2d 291.
The case of Whittemore v. Seydel, 74 Cal.App.2d 109, 168 P.2d 212, cited by petitioners,
is not in point. That case was decided under a self-executing section of the California
constitution. The court there held that although the affidavits attached to a referendum
petition were insufficient under the applicable statute, they did not vitiate the petition,
because it was not denied that the petition was signed by the requisite number of qualified
electors who had themselves complied with all statutory requirements to make their petition
effective. The same situation existed in the case of Truman v. Rover, 189 Cal.App.2d 240, 11
Cal.Rptr. 159.
We therefore conclude that none of the petitions for recall contains the number of valid
signatures required under the provisions of NRS 306.020 and NRS 306.030.
[Headnote 3]
The petitioners herein maintain, however, that even if the requirements of the statutes
(NRS 306.020 and 306.030) were not complied with, it would not be fatal to the petitions for
recall because such requirements do not constitute additional legislation as may aid the
operation of sec. 9, art. 2 of the Nevada Constitution, but in fact constitute a burden on the
operation of such constitutional provision. We do not agree. In our opinion, any statutory
provision intended to safeguard the operation of recall procedures aids in the operation
thereof.
2

See Dawson v. Meier, supra.
In concluding that the petitions for recall are inadequate for the reasons above-stated, we
are not holding that this court will issue a writ of mandamus where material factual
questions are presented which properly can be decided only in a district court and where,
as in this case, a suit for declaratory judgment has been pending for a considerable period
of time in the District Court of Washoe County which could determine adequately
questions of both fact and law.
____________________

2
Petitioners admitted at the oral argument that a statutory provision designed to prevent fraud would not be
objectionable.
that this court will issue a writ of mandamus where material factual questions are presented
which properly can be decided only in a district court and where, as in this case, a suit for
declaratory judgment has been pending for a considerable period of time in the District Court
of Washoe County which could determine adequately questions of both fact and law.
Each of the petitions for the alternative writ is denied and the proceedings herein are
dismissed.
Badt, C. J., and Collins, D. J., concur.
Thompson, J., being disqualified, the governor commissioned Honorable Jon R. Collins,
Judge of the Seventh Judicial District, to sit in his stead.
____________
78 Nev. 346, 346 (1962) Williams v. State
JAMES WILLIAMS, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 4457
June 25, 1962 372 P.2d 462
Appeal from the Third Judicial District Court, Lander County; John F. Sexton, Judge.
Prosecution for grand larceny of sheep. The trial court rendered judgment, and the
defendant appealed. The Supreme Court, Badt, C. J., held that testimony by Bureau of Land
Management district range manager that certain sheep, which were proved to be victim's,
were same sheep manager had seen in possession of defendant's employee, was competent.
Affirmed.
[Rehearing denied July 20, 1962]
Springmeyer, Thompson & Dixon, of Reno, for Appellant.
Roger D. Foley, Attorney General, George G. Holden, District Attorney of Lander County,
for Respondent.
1. Criminal Law.
Testimony by Bureau of Land Management district range manager that certain sheep, which were proved
to be victim's, were same sheep manager had seen in possession of defendant's employee, was competent in
larceny prosecution.
2. Criminal Law; Witnesses.
Qualification of witness to testify is largely addressed to discretion of trial court, and determination of
weight of testimony is jury function.
3. Larceny.
Evidence sustained conviction for grand larceny of sheep.
OPINION
Williams was convicted of the grand larceny of 14 head of sheep and has appealed from
the judgment of conviction.
The main point raised in the appeal is whether it was error to admit the testimony of
August L. Rowher, referred to as Monte Rowher, either as an expert or as one qualified by the
sufficiency of his observation to identify the 14 head of sheep, subsequently proved to be the
sheep of Ellison Ranching Company, as the same sheep he had seen in the possession of
Williams's employee, Cecil Decker. Rowher had been employed as district range manager for
the Bureau of Land Management since October, 1951, a period of 10 years, and had been
employed by the Bureau since 1937, except for a period of military service. He had observed
the sheep on the morning of May 2, 1961, in the custody of Cecil Decker, who identified
himself as working for Williams. He spoke to Decker and looked the sheep over, counted
them twice, and observed that they were a bunch of yearlings, with one black-face yearling,
and having a red mark on the back. The mark was undecipherable. He did not know how
many of them were yearling ewes and how many were yearling wethers. Decker said that the
sheep were Jimmy Williams's, and that he, Decker, was taking them down the canyon to what
was known as the Snow Cat cabin. Rowher knew that Williams had a horse and cattle permit
on the public domain, but no sheep permit.
permit. The Fish Creek Range, where the sheep were observed, was winter range for Ellison
Ranching Company and W. T. Jenkins Company. This encounter with the sheep was on
May 2, 1961. Rowher went to Austin on May 4 accompanied by Kirk Neilson, his assistant
manager in the district. He had on May 5 prepared a trespass notice against Williams. On the
5th at Austin he observed in a corral, referred to generally by its ancient name of the George
Thorpe Corral, about a dozen head of yearling sheep. There was a black-face one in the
bunch. Later he returned to the corral, found that the sheep and cattle had been let out, and
followed their tracks to where they were found, a hundred yards or so away. Stanley Ellison,
vice president and manager of Ellison Ranching Company, identified the sheep as those
belonging to his company. He stated that the brands on some of them were still clear, though
on many of them they were blotched. His brand was a pitchfork painted in red on the back,
with the tines pointing forward. He also identified the earmarks. There was testimony as to
foot tracks (apparently accepted by the jury as the foot tracks of Williams and his wife)
following the sheep tracks out of the corral. There was also testimony identifying the dual
tracks of Williams's truck in which the sheep had been hauled from where they had been seen
on May 2 down to the corral. Rowher positively identified the sheep as the sheep he had seen
on May 2 in Decker's possession.
Appellant contends that without Rowher's testimony thus identifying the sheep, the state's
entire case falls. While this is not necessarily so, we may accept his statement for purposes of
argument and decision.
Rowher was subjected to a grueling cross-examination, not only as to his competency to
identify the sheep but on virtually every answer he gave to counsel's questions. He testified
that yearling sheep were easily identified from older sheep; that it was customary also to dock
the tails of the whether lambs a little longer than the tails of the ewe lambs; that there are also
physical characteristics; Oh, there is the masculinity, just like a person, I mean they have
certain physical characteristics * * * the features of sheep or any other animal and the
fineness of the features in others, so by a casual observation you can tell"; that, asked
about the type or breed, these were the Corradells [Corriedales] and the Rambolays
[Rambouillets], the Rambolay being the foundation stock, with rather tight wool, shorter
wool, not a rangy sheep, quite prominent wool toward the face; that the Corradells are
more open-faced, longer staple in the wool, cleaner legged than the Rambolays and the
Corradells, being about the same size and equally valuable for wool and mutton; that in
the cross-breeding there are many characteristics in heredity of stock, some of them
being dominant and some not, so that all gradings are encountered; that the black face
would probably come from a Hampshire ram; that when he said the 14 head were of a
uniform band, the uniformity was principally in the age; that it was not true that the only
way to determine a sheep's age or that it is under a year old is by looking at his mouth,
"Well, after they are lambed they have got all of the young lamb wool, they are with their
mothers, as they grow older their wool becomes more long, their facial features are
developed and a yearling sheep is not yet mature so that he does not have these manifest
characteristics that a grown sheep would have."
like a person, I mean they have certain physical characteristics * * * the features of sheep or
any other animal and the fineness of the features in others, so by a casual observation you can
tell; that, asked about the type or breed, these were the Corradells [Corriedales] and the
Rambolays [Rambouillets], the Rambolay being the foundation stock, with rather tight wool,
shorter wool, not a rangy sheep, quite prominent wool toward the face; that the Corradells are
more open-faced, longer staple in the wool, cleaner legged than the Rambolays and the
Corradells, being about the same size and equally valuable for wool and mutton; that in the
cross-breeding there are many characteristics in heredity of stock, some of them being
dominant and some not, so that all gradings are encountered; that the black face would
probably come from a Hampshire ram; that when he said the 14 head were of a uniform band,
the uniformity was principally in the age; that it was not true that the only way to determine a
sheep's age or that it is under a year old is by looking at his mouth, Well, after they are
lambed they have got all of the young lamb wool, they are with their mothers, as they grow
older their wool becomes more long, their facial features are developed and a yearling sheep
is not yet mature so that he does not have these manifest characteristics that a grown sheep
would have. All of this was elicited in his cross-examination.
When the sheep stopped and Rowher was talking to Decker he had opportunity to count
them, although he did not identify the brands or earmarks. As to his failure to identify the
brands, he said: Those are wool sheep that I saw. It was not discernible to me, any exact
figure or character * * * just a patch. Appellant introduced in evidence a number of
photographs of the terrain showing high sagebrush, and contends that it was impossible to
make an accurate observation supporting a subsequent identification of the sheep. As to this,
however, Rowher testified: There is a slight gradient there, we were not much above them
but we were above them so they were easily seen when we were looking downhill."
downhill. As to his ability to identify them as yearlings, he said: Well, if you are acquainted
with sheep, with their physical characteristics to the extent that I am in my own mind I know
that they were yearlings. * * * A two-year old would have much longer, heavier fleece of
wool on him than a yearling and some of it would be rubbed off from the comb from last
year.
Stanley Ellison was likewise questioned as to identifying a yearling from an older sheep.
He stated: Well, you can distinguish them by looking at them, you can distinguish a yearling
sheep and older sheep the same as you distinguish between you and I or you and another
person. They have characteristics like a calf and a cow, technically you distinguish between a
yearling sheep and an older sheep by their mouth but they are smaller, they have a fleece that
is different and a fleece that has never been sheared looks different, their profile is different.
They have a look in their face and they have a look in their body that is different.
It is true that the defendant produced two witnesses who stated that it was impossible to
identify or distinguish one group of sheep from another group of sheep without reference to
brands or earmarks, but it is evident that the jury discounted this testimony. It is also true that
Williams's uncle testified that Williams had a half interest in a bunch of sheep run on the
uncle's ranch and that in March Williams had taken some 14 or 15 head of sheep from the
ranch and marked them with a red cross on the back. The inference sought to be drawn was
patently that these were the sheep that Rowher had seen in Decker's possession. However, the
uncle, William Theodore Gandolfo, had testified that the sheep Williams took from the
Gandolfo ranch were just mixed sheep * * *. They were mixed, young ones and old ones
together, just the run of the sheep. He also testified that the condition of the painted red cross
that Williams had placed on the sheep he took from the Gandolfo ranch, when Williams
brought them back on May 2, was plain as plain could be. It is most evident that this
attempt to connect the 14 head of yearlings with the mixed bunch of Williams's own sheep
from the Gandolfo ranch was rejected by the jury.
yearlings with the mixed bunch of Williams's own sheep from the Gandolfo ranch was
rejected by the jury.
Added to this was Williams's statement made to Rowher that the sheep he was accused of
stealing were just a bunch of leppy lambs.
Appellant, in attacking Rowher's competency to identify the sheep, insists that his
observation of them was quite casual and limited to his observation of bands of sheep about
once a month in Lander County or slightly more often throughout his entire grazing district.
As to this, Rowher had testified that his observation was probably of 15 or 20 bands a year
and probably four times that many.
1
Appellant says: If this limited experience is sufficient
to make Rowher a sheep expert, there are innumerable hunters, fishermen, miners,
prospectors, lawyers, and travelers who frequent areas in Nevada where sheep graze who are
also sheep experts.' This can hardly be said to be fair or logical comment. It was Rowher's
business to look and to observe.
Appellant's argument seems to be that Rowher's statement that he could identify the 14
yearlings in the corral as being the same group he had seen with Decker is so inherently
impossible, or at least so inherently improbable that it was error to overrule appellant's
objection to its competency. He insists: Even if Monte Rowher's qualifications in this
respect were a matter of discretion, upon the record and Monte's own testimony, the
admission of his opinion was an abuse of discretion because it conflicts so basically and
unalterably with logic and common sense. This he says, in rejecting the theory that whether
or not a witness possesses sufficiently superior knowledge, skill or experience to qualify as an
expert witness, is addressed to the discretion of the trial court. Appellant contends that the
subject of the inquiry does not admit of expert testimony in the first place. He contends that
identification of range sheep by casual observation from afar in high brush cannot by any
stretch of the imagination be said to be a subject which admits of expert testimony.
____________________

1
The number of sheep in a band varies, but we may accept 2,000 as an average.
[Headnotes 1, 2]
In the first place the observation as above-described was far more than casual. The rule is
that the qualification of a witness to testify is largely addressed to the discretion of the trial
court and that the determination of its weight is the function of the jury; and that the objection
goes more to the weight than to the admissibility of the evidence.
In State v. White, 52 Nev. 235, 285 P. 503, a witness gave as his opinion, on direct
examination, that a number of the bones, including a skull, found in the ruins of a burned
cabin, were human bones. On cross-examination he stated that he had no professional
knowledge of anatomy. On appeal error was assigned in the refusal to grant the defendant's
motion to strike this testimony. This court said at 52 Nev. 261, 285 P. 510: The mere fact
that a witness disclaims being an expert as to a particular subject about which he testifies will
not of itself render his opinion inadmissible. The question always is whether he has sufficient
knowledge to enable him to give an opinion as to the matter concerning which be is
questioned, and is always addressed to the sound discretion of the court. Underhill's Criminal
Evidence (3d ed.), sec. 189.
In 2 Wharton's Criminal Evidence 360 (12th ed.), it is stated: The testimony of experts is
tested by the same rules that are applied to the testimony of other witnesses, and its weight
and value are for the jury to determine. Later at id. 380 the author says: The opinion, belief,
judgment, or impression of an ordinary witness as to the identity of a person or an object is
admissible in evidence, provided such testimony is based upon his own knowledge and not
upon information furnished by another.
Appellant refers to the testimony, of his witnesses to the effect that it is impossible to
identify sheep other than by the brand and earmark and that Rowher's identification of the
sheep without reference to brands or earmarks was accordingly incompetent. Something of a
similar nature occurred in Wallen v. State, 338 P.2d 170 (Okla.Cr. 1959), where an expert
testified that a speed estimate from skid marks was impossible, because of the fact that a
motor scooter had prevented the front wheels of the automobile in question from gripping
the pavement.
speed estimate from skid marks was impossible, because of the fact that a motor scooter had
prevented the front wheels of the automobile in question from gripping the pavement.
Nevertheless, the court held that it was not error to permit the highway patrolman to estimate
the speed of defendant's automobile from the skid marks, citing Miller v. State, 9 Okla.Cr.
255, 13I P. 717, LRA 1915A, 1088, as follows: The admissibility of the testimony of
expert witnesses is a question of law for the determination of the court. The weight and
credibility to be given to such opinions is a question for the jury alone to determine.'
In a handwriting case an expert had testified that a signature on a questioned document
was the same as that appearing in an admitted specimen. He admitted, however, that this was
the result simply of just normal visual examination. He made no photographs, no
examination under a microscope, no other types of test. It was asserted that his testimony was
incompetent. The court said: While the particular method adopted by him might go to the
weight of his testimony, it clearly does not warrant its rejection. The weight and effect of the
opinion of the expert witness, or the results of comparisons of the handwritings, was a matter
for the duly constituted arbiter of the facts. People v. Bullock, 166 Cal.App.2d 494, 333 P.2d
88. Many other cases are to like effect.
Appellant cites a number of cases in which a criminal conviction was reversed for failure
of sufficient identification. These cases do not require discussion. The reversals in State v.
Fronhofer, 38 Nev. 448, 150 P. 846, and in State v. Cerfoglio, 46 Nev. 332, 205 P. 791, 213
P. 102, 27 A.L.R. 848, meet with our entire approval, but under their facts they have no
application to the present problem.
[Headnote 3]
Appellant contends that the record discloses no substantial evidence to support the verdict;
that there is not a shred of competent evidence which connects appellant with the Ellison
sheep or which is not consistent with a hypothesis of innocence. The emphasis here is of
course upon the word "competent."
of course upon the word competent. We have held that Rowher's testimony was competent.
The 14 yearlings, identified as Ellison sheep, were being herded by Cecil Decker, appellant's
employee, on May 2, 1962. Decker, called as a witness by appellant, testified that later that
afternoon he saw the sheep at the corral at Cottonwood Creek in appellant's truck, into which
he and appellant had loaded them, and that appellant then left with the sheep in the truck.
Kirk Neilson, an employee of the Bureau of Land Management, together with Rowher and the
forest ranger, had observed the sheep and cattle in the corral at Austin on May 5, 1962. Ten or
fifteen minutes later when he returned to the corral with Rowher and Sheriff Maestretti, the
corral gates were open and cow tracks and sheep tracks indicated that the cows and sheep had
left the corral. Foot tracks, corresponding with the foot tracks of Mr. and Mrs. Williams, went
down the road toward the corral gate, and then over the top of the cow tracks going out of
the corral. Raymond Ismay, manager of the Ellison Ranching Company's Fish Creek ranch,
had observed Williams's truck going up the canyon and later observed its tracks coming back.
He identified the tracks and identified the truck as belonging to appellant. He next saw the
truck on May 7 in Austin. Appellant's connection with the Ellison sheep is as complete as can
reasonably be expected.
Other errors assigned by appellant all have to deal either with the competency of Rowher's
testimony or other sufficiency of the evidence. We find no error.
As there was substantial evidence to support the verdict of guilty, the judgment is
affirmed.
McNamee, J., and Brown, D. J., concur.
Thompson, J., being disqualified, the governor commissioned Honorable Merwyn H.
Brown, district judge of the Sixth Judicial District, to sit in his place.
____________
78 Nev. 355, 355 (1962) Musso v. Triplett
GOLDIE MUSSO, Appellant, v. ERNEST S. TRIPLETT and RACHEL I. TRIPLETT,
Husband and Wife, Respondents.
No. 4505
June 25, 1962 372 P.2d 687
Appeal from the First Judicial District Court, Lyon County; Frank B. Gregory, Judge.
Unlawful detainer action. The lower court entered a minute order for summary judgment
for plaintiff, and defendant appealed. The Supreme Court, McNamee, J., held that the minute
order was not appealable.
Appeal dismissed.
Harry D. Anderson, of Reno, for Appellant.
Diehl & Recanzone, of Fallon, for Respondents.
Decision wherein court denied defendant's motion to dismiss complaint and motion to proceed to trial on
issues raised by counterclaim and reply was not appealable.
2. Forcible Entry and Detainer.
Failure to verify complaint in unlawful detainer action was waived by filing of answer.
Minute order granting summary judgment was not appealable. NRCP 72(b).
Question whether orders were appealable is jurisdictional, and reviewing court must act whenever and
however question comes to its attention.
Where no direct appeal from intermediate decision is provided by legislature, decision is reviewable only
upon appeal from final judgment.
OPINION
An unverified complaint in unlawful detainer seeking restitution of real property was filed
in the lower court by respondents.
1
Thereafter there was filed an unverified answer and
counterclaim thereto, and an unverified reply to the counterclaim.
____________________

1
The present attorneys of record for respondents were substituted in the action after the complaint was filed.
answer and counterclaim thereto, and an unverified reply to the counterclaim.
After certain discovery proceedings which resulted in the obtaining of admissions from
appellant, respondents moved for summary judgment. The parties without objection appeared
before the court for a pre-trial conference and an order resulted therefrom. On December 20,
1961, the day set for trial and for the hearing of the motion for summary judgment, appellant
orally moved the court for dismissal of the action on the ground that the court was without
jurisdiction because neither the complaint nor the answer was verified as required by NRS
40.370. This motion was denied. The court at the same time granted respondents' motion for
summary judgment; whereupon appellant's attorney announced in court that appellant
intends to appeal from these orders. On January 6, 1962, appellant filed his notice of
appeal from the decision and judgment * * * rendered December 20, 1961, wherein said
court denied defendant's motion to dismiss plaintiffs' complaint, and denied defendant's
motion to proceed to trial on the issues raised by defendant's counterclaim and plaintiffs' reply
thereto,
[2]
and granted plaintiffs' motion for summary judgment.
On December 27, 1961, the court signed a formal order granting the motion for summary
judgment, and on the same day a final judgment based on said order was signed. This order
and final judgment were filed December 29, 1961. The judgment granted restitution as prayed
for, money damages for rent, and denied relief on the counterclaim. No appeal has been taken
from this judgment.
[Headnote 1]
The attempted appeal from the decision of the court wherein the court denied appellant's
motion to dismiss the complaint and a motion to proceed to trial on the issues raised by the
counterclaim and the reply thereto, being nonappealable orders, must be dismissed. Nev.
Gaming Comm. v. Byrens, 76 Nev. 374, 355 P.2d 176.
____________________

2
The record does not disclose that any such motion was made.
The only question remaining for decision is whether the appeal from the minute order of
December 20, 1961 for summary judgment can be entertained.
Appellant's opening brief (there is no reply brief) states: From the denial of appellant's
motion [to dismiss], this appeal was taken. Appellant then in a one-page argument states that
it was error to deny her motion to dismiss which, she maintains, should have been granted
because the complaint was not verified. This is the only specification of error presented by
appellant. No mention is made in the brief regarding the granting of the motion for summary
judgment.
[Headnotes 2, 3]
This error complained of is not a legal error which if properly presented would require
reversal, because the failure to verify a complaint in unlawful detainer actions can be and was
waived here by the filing of an answer thereto. Puckett v. Walz, 41 N.M. 612, 72 P.2d 623;
Commercial Bank & Trust Co. v. Jordan, 85 Mont. 375, 278 P. 832, 65 A.L.R. 968; Javine v.
Javine, 134 Okla. 283, 273 P. 267; Greenfield v. Steamer Gunnell, 6 Cal. 67; Chisholm v.
Vocational School for Girls, 103 Mont. 503, 64 P.2d 838; 41 Am.Jur., Pleading, sec. 287
(1942). See also Heintzelman v. L'Amoroux, 3 Nev. 377. The appeal in its entirety must be
dismissed, however, because even the attempted appeal from the minute order granting
summary judgment is not proper and confers no jurisdiction on this court. Bissing v. Bissing,
19 Idaho 777, 115 P. 827; Annot., 73 A.L.R.2d 250, 296 (1960); NRCP 72(b).
[Headnotes 4, 5]
Defendant (respondent) has not moved to dismiss the appeal nor otherwise raised the
issue. However, since the question is jurisdictional (in a procedural sense) it is one which we
must act upon whenever and however it comes to our attention.
* * * * *

Where no direct appeal from an intermediate decision is provided by the legislature, such
decision is reviewable only upon appeal from the final judgment.
The failure of the legislature to provide for a direct appeal from such a decision, is not a
denial of, or limitation upon, the jurisdiction of the supreme court to review such decision
upon appeal. It is a recognition by the legislature of a truism inherent in a proper system of
appeals; namely, to permit an appeal from all intermediate orders and decisions of the district
courts would result in such vexatious and intolerable confusion and delay as to render
impossible an orderly and expeditious administration of justice by the courts of the state.
State ex rel. State Board of Medicine v. Smith, 80 Idaho 267, 328 P.2d 581.
The purported appeals from the order denying appellant's motion to dismiss the complaint,
from the order denying appellant's motion to proceed to trial on the issues raised by the
counterclaim and the reply thereto, and from the minute order of December 20, 1961 granting
respondents' motion for summary judgment are dismissed.
___________
78 Nev. 358, 358 (1962) Midwest Livestock Comm'n v. Griswold
MIDWEST LIVESTOCK COMMISSION CO., a Nevada Corporation, and ELKO
LIVESTOCK SALES CO., INC., a Nevada Corporation, Appellants, v. I. ERWIN
GRISWOLD, Respondent.
No. 4506
June 29, 1962 372 P.2d 689
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Proceeding to determine persons to whom surety on livestock dealer's statutory bond was
liable. The lower court entered summary judgment that producer of livestock was entitled to
full amount of bond, and dismissed claims of public livestock auction houses, and the auction
houses appealed. The Supreme Court, Thompson, J., held that livestock dealer's statutory
surety bond protects only producer of livestock and farm products, and did not protect public
livestock auction houses, which delivered livestock to dealer but were not paid therefor.
did not protect public livestock auction houses, which delivered livestock to dealer but were
not paid therefor.
Affirmed.
Richards & Swanson, of Reno, for Appellant Midwest Livestock Commission Co.
Wright & Eardley, of Elko, for Appellant Elko Livestock Sales Co., Inc.
Orville R. Wilson and Mann and Scott, of Elko, for Respondent.
1. Factors.
Livestock dealer's statutory surety bond protects only producer of livestock and farm products, and did
not protect public livestock auction houses, which delivered livestock to dealer but were not paid therefor.
NRS 576.010 et seq., 576.020, 576.040, 576.120.
2. Statutes.
It is obligation of courts to ascertain legislative intent by reading of entire statute. NRS 576.040, subd.
5.
3. Factors.
Words any person, as used in statute permitting any person injured by livestock dealer's violation of
statutory provisions to maintain action against surety on dealer's bond, means any person who is producer
of livestock or farm products. NRS 576.040, subd. 5.
4. Factors.
Statutes regulating livestock and farm products dealers, brokers, and commission merchants, and not
statutes regulating public livestock auctions, were applicable in determining whether or not public livestock
auction houses, which delivered livestock to dealer but were not paid therefor, were within protection of
livestock dealer's statutory surety bond. NRS 573.010 et seq., 576.010 et seq., 576.010, subds. 4, 5,
576.040, subd. 5.
OPINION
Pursuant to NRS 576.040, Rila Co., Inc., to whom the state department of agriculture had
issued a license to act as a dealer, broker or commission merchant of livestock, filed with that
department a $5,000 surety bond of The Travelers Indemnity Company. The respondent
Griswold, a producer of livestock, and the appellants Midwest Livestock Commission Co.
and Elko Livestock Sales Co., Inc., licensed public auction houses, each delivered livestock
worth more than $5,000 to Rila Co., Inc., but were not paid the amounts due them by Rila
Co.,
Midwest Livestock Commission Co. and Elko Livestock Sales Co., Inc., licensed public
auction houses, each delivered livestock worth more than $5,000 to Rila Co., Inc., but were
not paid the amounts due them by Rila Co., Inc. The Travelers Indemnity Company asked the
district court to decide to whom it should pay the $5,000 and deposited that amount with the
court. That court, by summary judgment, determined that the claimant Griswold, as a
producer of livestock, was entitled to the full amount of the bond, and dismissed the claims
asserted against the bond by Midwest Livestock and Elko Livestock who were not producers
of livestock, but public livestock auction houses. Midwest Livestock and Elko Livestock
appeal.
[Headnote 1]
There are no disputed fact issues. The sole issue is one of law, namely: Does a surety
bond, given pursuant to the provisions of NRS, ch. 576, protect only a producer of livestock
and farm products? We agree with the lower court's determination that only a producer may
maintain a claim for relief against the bond.
[Headnote 2]
The primary thrust of appellants' argument is that NRS 576.040 (5) expressly provides that
any person injured by any violation of the provisions of this chapter * * * on the part of any
licensed dealer, broker, or commission merchant, may maintain a civil action against * * * the
surety or sureties on the bonds * * *. They insist that the words any person are clear, and
may not be restricted to embrace only one who is a producer. If we were to decide this case by
reference to the quoted section alone, there would be merit in the appellants' argument. Our
obligation, however, is to ascertain the legislative intent. We can do this only by reading the
whole act. Roney v. Buckland, 4 Nev. 45; Western Pacific Railroad Company v. State, 69
Nev. 66, 241 P.2d 846, 45 A.L.R.2d 429; State ex rel. O'Meara v. Ross, 20 Nev. 61, 14 P.
827.
[Headnote 3]
A reading of the entire act, NRS, ch. 576, establishes the legislative intention to protect a
producer of livestock; that only such person may maintain a civil action against the surety
on the bond.
the legislative intention to protect a producer of livestock; that only such person may maintain
a civil action against the surety on the bond. The licensing requirement of the act provides
that No person shall act as a dealer, broker or commission merchant dealing in * * *
livestock with the producer thereof [emphasis supplied] without first securing a license from
the department. NRS 576.020. It thus appears that Rila Co., Inc., was licensed to deal in
livestock with the producers thereof, and the surety bond given as a condition to the issuance
of such license was for the protection of those with whom it was licensed to deal. NRS
576.040 (1). The license revocation provisions of the act also indicate the legislative intention
to protect the producer of livestock. NRS 576.120 (b) permits revocation if the licensee has
made fictitious sales or has been guilty of collusion to defraud the producer, and (e) permits
revocation where the licensee, without reasonable cause, has failed or refused to execute or
carry out a lawful contract with a producer. The statutory definitions of commission
merchant and dealer further establish the legislative intention to be as we have just
indicated. A commission merchant is defined as a person * * * who shall receive on
consignment or solicit from the producer thereof * * *; and a dealer as a person * * * who
solicits, contracts for or obtains from the producer thereof * * *. NRS 576.010 (4) (5). We
believe it clear that the words any person as used in NRS 576.040 (5) mean any person
who is a producer of livestock or farm products.
A similar problem was considered by the Idaho Supreme Court in Lebrecht v. Union
Indemnity Co., 53 Idaho 228, 22 P.2d 1066, 89 A.L.R. 640. One part of the statute appeared
to give any person injured a right of action on the surety bond. The plaintiff, a consignee of
the defendant broker, brought suit and joined the bonding company as a defendant. The issue:
was the statutory bond furnished for the broker designed to protect the broker's consignee?
That court held that a reading of the entire act established the legislative intention that the
bond was to be for the benefit of consignors only and not for the benefit of any other
persons.
and not for the benefit of any other persons. The plaintiff, a consignee, was, therefore, denied
relief.
[Headnote 4]
In an effort to bring themselves within the protection of the bond, appellants urge that the
bond, by its express terms, runs in favor of every producer-creditor-consignor, and that they
are consignors within NRS, ch. 573, relating to a public livestock auction. Said chapter is not
relevant to this case. Had appellants consigned livestock to a public livestock auction for sale,
resale or exchange, the bond filed by the operator of such public livestock auction would
protect them as consignors. In the instant case, however, the appellants, as licensed public
livestock auction operators, delivered livestock to Rila Co., Inc., a dealer and commission
merchant. Hence, the provisions of NRS, ch. 576, governing the bond filed by dealers and
commission merchants, control. The two chapters are separate and distinct, NRS, ch. 573,
regulating public livestock auctions, and NRS, ch. 576, regulating livestock and farm
products dealers, brokers and commission merchants.
We find no merit in this appeal. The summary judgment entered below must be affirmed.
____________
78 Nev. 362, 362 (1962) Petrie v. Gragson
LILLY N. (PEGGY) PETRIE, Petitioner, v. ORAN GRAGSON, Mayor of Las Vegas, and
SIDNEY WHITMORE, City Attorney of Las Vegas, Respondents.
No. 4547
September 5, 1962 374 P.2d 433
Original petition for a writ of mandamus.
A citizen, voter, and taxpayer of the city of Las Vegas brought an original mandamus
proceeding in the Supreme Court against the mayor and city attorney of Las Vegas to compel
them to resign from their municipal offices. The Supreme Court, Thompson, J., held that
the phrase "elective office" as used in the statute providing that the Las Vegas mayor,
commissioners, city attorney, and municipal judge shall not be eligible for nomination or
election to any "elective office" other than the office to which he is incumbent means
merely municipal elective offices and does not embrace county, state, and federal elective
offices.
of Las Vegas to compel them to resign from their municipal offices. The Supreme Court,
Thompson, J., held that the phrase elective office as used in the statute providing that the
Las Vegas mayor, commissioners, city attorney, and municipal judge shall not be eligible for
nomination or election to any elective office other than the office to which he is incumbent
means merely municipal elective offices and does not embrace county, state, and federal
elective offices.
Petition denied and proceedings dismissed.
No appearance for Petitioner.
Madison B. Graves, of Las Vegas, for Respondent Gragson.
Ralph M. Tucker, of Reno, for Respondent Whitmore.
Officers.
Phraseelective office as used in statute providing that Las Vegas mayor, commissioners, city attorney,
and municipal judge shall not be eligible for nomination or election to any elective office other than
office to which he is incumbent means merely municipal elective offices and does not embrace county,
state, and federal elective offices. NRS 34.160; Stats. 1911, p.145, ch. 2 sec. 3 as amended by Stats.
1957, p. 35; sec. 6 as amended by Stats. 1958-1959, ch. 316, sec. 1.
OPINION
Do the provisions of Stats. of Nev., 1958-1959, ch. 316, sec. 1 at p. 425, amending sec. 6
of ch. 2 of the Las Vegas City Charter, impose a duty upon the respondent Gragson, the
mayor of Las Vegas and currently a declared candidate for the Republican nomination for
Governor of Nevada, and the respondent Whitmore, the city attorney of Las Vegas and
currently a declared candidate for the Democratic nomination for Attorney General of
Nevada, to resign their respective municipal offices? This question is presented by the
application for a writ of mandate of Lilly N.
a writ of mandate of Lilly N. Petrie, a citizen, voter and taxpayer of the city of Las Vegas.
1

The mentioned statute provides: The mayor, each of the four commissioners, the city
attorney, and the judge of the municipal court shall not be less than twenty-five (25) years of
age, citizens of the United States, and qualified voters of the city of Las Vegas for at least two
years immediately preceding the year in which said election is held. No incumbent elected
city official shall be eligible for nomination or election to any elective office other than the
office in which he is an incumbent, but nothing herein contained shall be construed so as to
prevent any elected city official from first resigning his office and then becoming a candidate
for an office in which he was not an incumbent. All such resignations, to be effective, shall be
made at least 10 days prior to the last day for filing an affidavit of candidacy as provided in
section 3 of chapter II of this charter. All officers made elective by the popular vote shall
within twenty days after the result of the election is ascertained qualify as required by this
charter and the constitution and laws of the State of Nevada, and enter upon the duties of their
office on the first Monday in July of the year in which said general election is held, and
failing to do so within said time, such office shall be and become vacant.
Petitioner urges simply that the phrase any elective office as it appears in the quoted
statute embraces all elective offices, municipal, county, state and federal; that had the
legislature intended such phrase to apply only to elective municipal offices it would have
stated so in clear language.
____________________

1
The mandamus petition requests an order of this court commanding either the resignation of each
respondent from municipal office, or his withdrawal of candidacy for state office. Upon the filing of said
petition, we issued a show-cause order requiring each respondent to answer only the claim that he must resign
his municipal office. Accordingly, the matter of each respondent's withdrawal of his candidacy for state office is
not before us. We so limited the show-cause order to the single issue mentioned, because of the obvious lack of
merit in petitioner's alternative request, i.e., withdrawal of candidacy for state elective office, it being axiomatic
that a municipal charter cannot constitutionally prescribe qualifications for state elective office.
in clear language. She therefore concludes mandamus will lie to compel each respondent to
resign his municipal office, such action by him being especially enjoined as a duty resulting
from the municipal office which he holds. NRS 34.160.
We cannot accept the petitioner's contention, because it ignores other language of the
statute which, in our view, clearly establishes the legislative intention that said sec. 6 of ch. 2
requires only the resignation of an incumbent elected city official who wishes to become a
candidate for an elective city office of the city of Las Vegas in which he is not the incumbent.
Such intention is evident for it is expressly provided therein that all such resignations, to be
effective, shall be made at least 10 days prior to the last day for filing an affidavit of
candidacy as provided in section 3 of chapter II of this charter. Sec. 3 of ch. 2, to which
reference is thus especially made, deals exclusively with municipal elections, and with
respect to affidavits of candidacy (referred to in Sec. 6) provides, inter alia: A candidate
for any office to be voted at the primary municipal election shall file an affidavit of candidacy
with the city clerk, not less than 30 days nor more than 40 days before the primary election *
* *. (Italics added.)
There are other valid reasons why petitioner's contention is without merit, but we deem it
unnecessary to set them forth. We hold that sec. 6 of ch. 2 of the Las Vegas City Charter does
not impose a duty upon either respondent to resign his elective municipal office before
declaring his candidacy for elective state office. The petition for an alternative writ of
mandate is denied, and the proceedings dismissed.
(Mr. Justice McNamee did not participate in the consideration or determination of this
case.)
____________
78 Nev. 366, 366 (1962) Garner v. State
JUNO NEIL GARNER Appellant, v. STATE OF
NEVADA, Respondent.
No. 4484
JUNO NEIL GARNER, Appellant, v. RALPH LAMB,
Sheriff of Clark County, Nevada, Respondent.
No. 4493
September 18, 1962 374 P.2d 525
Appeals from judgments of the Eighth Judicial District Court, Clark County; David
Zenoff, Judge.
Convicted, in the trial court, of unlawful possession and control of narcotic drug, and
denied by such court a requested writ of habeas corpus, the defendant appealed. The Supreme
Court, Thompson, J., held that repeated references by prosecutor and his witnesses to
inadmissible prior felony convictions were, under circumstances, prejudicial and not
harmless, and reversal and new trial were required; and that, as there was no lack of
jurisdiction, habeas corpus was properly denied.
Case No. 4484, reversed and remanded for new trial with instructions.
Case No. 4493, affirmed.
James H. Phillips, of Las Vegas, for Appellant.
Charles E. Springer, Attorney General; John F. Mendoza, District Attorney, and William
S. Barker, Deputy District Attorney, Clark County, for Respondents.
1. Criminal Law.
It is proper for prosecutor to outline his theory of case and to propose those facts he intends to prove in
opening statement, but it is his duty to state such facts fairly and to refrain from stating facts he will not be
permitted to prove.
2. Criminal Law.
By general rule, failure to object, assign misconduct, or request instruction, will preclude appellate
consideration, but where errors are patently prejudicial and inevitably inflame or excite passions of jurors
against accused, general rule does not apply.
3. Criminal Law.
Accused, whether guilty or innocent, is entitled to fair trial, and it is duty of court and prosecutor to see
that he gets it.
4. Criminal Law.
In jury trial of accused not represented by counsel, repeated reference by prosecutor and witnesses to
inadmissible prior felony convictions could be considered on review, notwithstanding defendant's failure to
object thereto during trial, assign such as error, request appropriate instruction, or otherwise act to protect
his rights. NRS 169.110.
5. Criminal Law.
If issue of guilt is close and state's case not strong, prosecutor's misconduct will probably be considered
prejudicial.
6. Criminal Law.
Quantity of error is significant in determining whether error is harmless. NRS 169.110.
7. Criminal Law.
Repeated references by prosecutor and his witnesses to inadmissible prior felony convictions for
defendant prosecuted for alleged unlawful possession and control of narcotic drug of which he claimed
right to possession as licensed osteopath were, under circumstances, prejudicial and not harmless and
reversal and new trial required.
OPINION
Separate appeals by Garner, one from a judgment of conviction entered upon a jury verdict
finding him guilty of the unlawful possession and control of a narcotic drug, Case No. 4484,
and the other from the denial by the district court of his application for a writ of habeas
corpus which was presented following his conviction, Case No. 4493. We believe the
judgment of conviction must be reversed and the cause remanded for a new trial, because of
prejudicial misconduct by the prosecuting attorney and the reception of inadmissible
evidence. Therefore, we will first discuss Case No. 4484.
Before making specific reference to the prosecutor's remarks and the evidence erroneously
admitted, a brief statement setting forth circumstances of legal significance is necessary in
order to place the issues in proper perspective. Garner acted as his own attorney during the
jury trial below, having voluntarily waived his right to counsel. He failed to object to the
remarks of the prosecutor and to the introduction of inadmissible evidence. The trial judge
did not admonish the jury to disregard such remarks and evidence, nor did he take any
other action with reference thereto.
jury to disregard such remarks and evidence, nor did he take any other action with reference
thereto. Garner did not testify. There is substantial evidence to prove Garner's possession of a
narcotic drug. Whether such possession was lawful or unlawful is disputed, but we need not
resolve that question. After the judgment of conviction, the trial court appointed counsel for
Garner to assist in these appeals. Thus, Garner's complaint regarding the remarks of the
prosecutor and the reception of inadmissible evidence is raised initially on appeal. With these
circumstances in mind, we turn to relate the remarks and evidence to which we have referred.
During his opening statement to the jury the prosecutor, in relating what he intended to
thereafter prove, said, among other matters: The first witness will be an important witness
here, he will be Officer Hilliard. Officer Hilliard sees the defendant in West Las Vegas rather
shabbily dressed and in a disorderly manner. At this time he didn't know anything. He goes
back to the Police Station, though, looks up Mr. Garner's record, and there is reason to be
suspicious from his prior record and what not. So, he goes back over to West Las Vegas, says
to Mr. Garner, I have seen your record' and what not, and in effect may I search your
person?' Officer Hilliard, to whom the prosecutor had referred in his opening statement, was
the first witness called by the state. The following questions and answers appear in the record.
Q. In other words, did you call to the Las Vegas Police Station?
A. Yes, I did.
Q. What did you find out pursuant to that radio call?
A. I was able to ascertain that the subject was registered with our Department, Las Vegas
Police Department, as an ex-felon. He had a lengthy criminal record, such as armed robbery,
abortion, and so forth.
Q. Were you able to determine whether these were convictions, or only accusations?
The Court: I will have to admonish you, Mr. Bowman, to be careful.
A. These were convictions for previous felonies. Later during his testimony Officer
Hilliard was asked:
Q. Well, after you talked to him and searched his person, then what did you do, Officer?
A. Due to the fact my suspicions were aroused by his criminal record, the fact he was in
an area carrying this medicine without a bag, I transported subject to Detective Bureau for
further disposition.
Later on, during the presentation of the state's case in chief, a member of the State Board
of Osteopathic Examiners, in explaining the revocation of Garner's Nevada license as an
osteopath, said: The automatic reason that we had been attempting to serve notice was that
he had been convicted of a felony in December of 1942, which would automatically void his
Nevada license, if he could be notified. * * *. The record further discloses that the same
witness, in testifying about the contents of a letter sent Garner, said: I believe that it was
worded that this was his official notification to appear before the Board September 17 to
show cause why his license should not be revoked because of, and then the enumeration of:
Number one, conviction of a felony; number two, practice, type of practice in California and
Florida; number three, persistent police record.
Finally, during summation to the jury, the prosecutor again mentioned that Garner's crime
record had been ascertained.
The state does not assert that evidence of other offenses committed by Garner was
admissible. It acknowledges the general rule of criminal evidence that, on the trial of a person
accused of crime, proof of a distinct independent offense is not admissible. It concedes that
the evidence heretofore set out does not come within any exception to the general rule. Cf.
Nester v. State, 75 Nev. 41, 334 P.2d 524; State v. McFarlin, 41 Nev. 486, 172 P. 371.
However, the state does urge that the statements of the prosecutor and the evidence of other
offenses were introduced into the case without objection by the defendant and he thereby
waived any right to have the points considered on appeal. In any event, it insists that NRS
169.110, the "harmless error" statute, must be given effect because of other competent
evidence in the record establishing Garner's guilt beyond a reasonable doubt.
event, it insists that NRS 169.110, the harmless error statute, must be given effect because
of other competent evidence in the record establishing Garner's guilt beyond a reasonable
doubt. On the other hand, Garner contends that the forensic misconduct of the prosecutor in
opening statement and closing jury argument, in making reference to other offenses, together
with the introduction of evidence concerning them, precluded any possibility of a fair trial
being accorded him. He urges that the jury must have been influenced by the continual
reference to his record of crime, particularly in view of the fact that the other evidence in the
case does not conclusively establish that his possession of narcotics was unlawful.
We are appalled by the consummate disregard of the defendant's right to a fair trial. The
duty of the prosecutor is beautifully expressed by the Supreme Court of the United States in
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, in the following
language:
The United States Attorney is the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is as compelling as its obligation
to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win
a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the
servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.
He may prosecute with earnestness and vigorindeed, he should do so. But, while he may
strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use every legitimate
means to bring about a just one. See also State v. Rodriguez, 31 Nev. 342, 347, 102 P. 863.
[Headnote 1]
After the jury has been selected and sworn, every criminal trial has three general
phasesthe opening statement, the proof and the summation. In the case at bar, the
prosecutor struck "foul blows" during each phase.
bar, the prosecutor struck foul blows during each phase. The purpose of the opening
statement is to acquaint the jury and the court with the nature of the case. It is proper for the
prosecutor to outline his theory of the case and to propose those facts he intends to prove.
State v. Olivieri, 49 Nev. 75, 236 P. 1100. However, it is his duty to state such facts fairly,
and to refrain from stating facts which he will not be permitted to prove. State v. Olivieri,
supra; Sefton v. State, 72 Nev. 106, 295 P.2d 385; State v. Erwin, 101 Utah 365, 120 P.2d
285. We know that appellate courts will not usually predicate error on a statement to the jury
that certain proof, which is later rejected, will be offered if the question of its admissibility is
a close one, thus indicating that the prosecutor acted in good faith in making the statements.
State v. Lyskoski, 47 Wash.2d 102, 287 P.2d 114; State v. Albert, 159 Ore. 667, 82 P.2d 689.
In Olivieri, supra, the good faith guide was recognized and the court, upon the record there
presented, found nothing to indicate that the prosecutor acted in bad faith in overstating what
he intended to prove.
1
Indeed, in Olivieri there was a failure of evidence, i.e., the state
offered no evidence to establish the verity of the prosecutor's representation that the accused,
shortly before shooting the prosecuting witness, was intoxicated and in a reckless or vicious
humor, desired trouble, and was armed. The proof offered did not measure up to the
statement made. It was a situation where improper matters were placed before the jury
without having the misconduct discovered until a later phase of the trial. The misconduct
there involved could not be immediately apparent to either the court or opposing counsel and
was much less severe in character.
In the case before us we have an entirely different situation. The improper reference to the
defendant's prior criminal record must have been at once apparent to the court.
____________________

1
See also dictum, State v. Fronhofer, 38 Nev. 448, 465, 150 P. 846, 851, where the court said, inter alia,
* * * there is nothing to indicate that he was attempting to take any undue advantage of the defendant.
to the court. The court failed to act. The misconduct, understandably, was not apparent to the
defendant who was without counsel. Accordingly, he failed to object. Furthermore, we must
presume knowledge in the prosecutor that the defendant's record of crime, convictions for
armed robbery and abortion, would not, under any rule of evidence, be admissible during the
presentation of the state's case in chief. Notwithstanding such knowledge, reference to the
defendant's record was made at the very outset of the trial and before the first witness was
sworn to testify! Such forensic misconduct does not meet the good faith guide mentioned in
Olivieri. Finally, the impact of such information upon the jury cannot be overlooked. To do
so would be to ignore human experience.
The misconduct during the opening statement and again during summation was mild when
compared to the repeated introduction of testimony upon the subject of the defendant's prior
felony convictions and persistent police record. The state has hinted that each occurrence may
have been a spontaneous blurt, inadvertent and a surprise to all except the witness
testifying. Cf. State v. Varga, 66 Nev. 102, 123, 205 P.2d 803, 813. We reject any thought of
such having been the case. The question asked Officer Hilliard during trial, which prompted
his ready exposition regarding Garner's record, was first asked at the preliminary hearing and
about the same answer given. The prosecutor announced in his opening statement that he
would call Hilliard as a witness and that the officer's investigation of Garner's record caused
suspicion. Hilliard was then put on the stand and testified as heretofore related, to be followed
by others who did the same. It thus appears that not a single blurt was spontaneous or
inadvertent.
[Headnotes 2-4]
1. The court should have intervened sua sponte. We are asked to ignore the accumulation
of error. We are told that we need not concern ourselves with it, for no objection was
interposed during trial. As a general rule, the failure to object, assign misconduct, or
request an instruction, will preclude appellate consideration.
the failure to object, assign misconduct, or request an instruction, will preclude appellate
consideration. Cook v. State, 77 Nev. 83, 359 P.2d 483; O'Briant v. State, 72 Nev. 100, 295
P.2d 396; Kelley v. State, 76 Nev. 65, 348 P.2d 966; State v. Moore, 48 Nev. 405, 233 P.
523; State v. Boyle, 49 Nev. 386, 248 P. 48. However, where the errors are patently
prejudicial and inevitably inflame or excite the passions of the jurors against the accused, the
general rule does not apply. The errors here involved are of that kind. An accused, whether
guilty or innocent, is entitled to a fair trial, and it is the duty of the court and prosecutor to see
that he gets it. State v. Haney, 222 Minn. 124, 23 N.W.2d 369. The forensic misconduct and
reception of inadmissible evidence in the case at bar was so serious and flagrant as to require
court intervention to protect the defendant's right to a fair trial. State v. Cyty, 50 Nev. 256,
256 P. 793, 52 A.L.R. 1015; State v. Gulbrandsen, 238 Minn. 508, 57 N.W.2d 419. We are in
accord with the observation of the California Supreme Court in People v. Perez, 23 Cal.Rptr.
569, 581, 373 P.2d 617, 629: True, in some instances, no objection was interposed.
However, we feel that the foregoing course of conduct was so improper and so offensive to
the requirement that the question of guilt or innocence shall be determined by an orderly legal
procedure in which the rights of both the People and the defendant shall be respected, that the
trial judge should have intervened without waiting for an objection.
We hold that in a trial before a jury of one accused of crime and who is not represented by
counsel, the repeated reference by the prosecutor and his witnesses to inadmissible prior
felony convictions of the defendant, may be considered on review, notwithstanding the
defendant's failure to object during trial, assign such misconduct as error, request an
appropriate instruction, or otherwise act to protect his right to a fair trial. Having thus
determined that we may consider the appellant's complaints of error in this regard, we now
direct our attention to a consideration of NRS 169.110, the harmless error statute.
2. The errors are not harmless. NRS 169.110 provides: No judgment shall be set
aside, or new trial granted, in any case on the ground of misdirection of the jury or the
improper admission or rejection of evidence, or for error as to any matter or pleading or
procedure, unless in the opinion of the court to which application is made, after an
examination of the entire case, it shall appear that the error complained of has resulted in a
miscarriage of justice, or has actually prejudiced the defendant, in respect to a substantial
right. Manifestly, the determination of whether an error in the trial of a criminal case is
harmless or reversible is largely subjective.
[Headnote 5]
The reports are full of appellate decisions criticizing prosecutor misconduct and indicating
error. However, the important question is whether such error is to be found prejudicial and
reversible or merely harmless. In the language of the statute, did the error or errors result in a
miscarriage of justice or actually prejudice the defendant in respect to a substantial right? As
it is impossible for a reviewing court to examine the minds of the jurors we look to other
influential factors in exercising the discretion which the statute grants. If the issue of guilt or
innocence is close, if the state's case is not strong, prosecutor misconduct will probably be
considered prejudicial. In State v. Kassabian, 69 Nev. 146, 148, 243 P.2d 264, 265, the court
observed: In close cases of this character where counsel's argument to the jury, by virtue of
the uncertain state of the evidence is magnified in importance, the importance of avoiding the
misleading of the jury and of avoiding undue appeals to sympathy, passion and prejudice are
likewise magnified. On the other hand, if the evidence of guilt is overwhelming, the
misconduct or reception of inadmissable evidence will sometimes be considered harmless. In
State v. Skaug, 63 Nev. 59, 66, 161 P.2d 708, 711, 163 P.2d 130, it was stated: Hence, in the
presence of such enormous and clearly proven guilt we will not pause to speculate as to
whether, if evidence of other offenses had been omitted the jury might have returned a
verdict carrying a lesser penalty."
of other offenses had been omitted the jury might have returned a verdict carrying a lesser
penalty.
[Headnote 6]
Furthermore, the quantity of error is significant. It is apparent the repeated instances of
misconduct and the accumulation of error are more serious than isolated breaches. State v.
Teeter, 65 Nev. 584, 200 P.2d 657, involved such an accumulation of error, and a reversal
occurred. In State v. Petty, 32 Nev. 384, 108 P. 934, however, a single error was excused as
harmless. The character of the error involved is very important. Certain off limit statements
by the prosecutor are more harmful than others. Some expressions clearly tend to influence or
prejudice a jury, while others would not. In this regard compare State v. Rodriguez, 31 Nev.
342, 102 P. 863, with the later decision of State v. Petty, supra, where this factor was
recognized. And, of course, the gravity of the crime charged appears to be a relevant
consideration. Some appellate courts assign greater significance to errors committed in capital
cases than to errors occurring in trials for lesser offenses. Finally, there lurks beneath the
surface a policy consideration, namely, the supervisory function of the appellate court in
maintaining the standards of the trial bench and bar, to the end that all defendants will be
accorded a fair trial.
Other considerations may also be relevant. The foregoing, however, have been most
frequently announced by appellate courts faced with the harmless error problem. The very
nature of the problem forbids a pronouncement of a hard and fast rule, nor does the statute
contemplate such a result. The facts and circumstances of each case must be honestly
weighed and evaluated.
[Headnote 7]
In reviewing the record of the present case, it is evident that the defendant was prejudiced
in respect to a substantial right, his right to a fair trial. Though his possession of narcotics was
proven beyond reasonable doubt, and admitted by him to witnesses, the evidence is uncertain
as to whether such possession was lawful or unlawful.
is uncertain as to whether such possession was lawful or unlawful. Garner claimed lawful
possession as a licensed osteopath. In deciding whether his claim had validity, the jury may
well have been influenced by the forensic misconduct and reception of inadmissible evidence
heretofore related. There was an accumulation of error. The very nature of it (reference to
prior felony convictions and a persistent police record) is inherently harmful to the rights of
one facing a charge of crime. We deem appropriate the following language of Judge Jerome
Frank in a dissenting opinion, United States v. Antonelli Fireworks Co., 2 Cir., 155 F.2d 661:
This court has several times used vigorous language in denouncing government counsel for
such conduct as that of the United States Attorney here. But, each time, it has said that,
nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. *
* * If we continue to do nothing practical to prevent such conduct, we should cease to
disapprove it. For otherwise it will be as if we declared in effect, Government attorneys,
without fear of reversal, may say just about what they please in addressing juries, for our rules
on the subject are pretend-rules. * * *. The deprecatory words we use in our opinions on such
occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind
who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking.
We conclude that the judgment below must be, and is reversed, the sentence vacated, and
the cause remanded for a new trial. The custody of Juno Neil Garner shall be transferred from
the warden of the Nevada State Prison to the sheriff of Clark County, Nevada, to be held by
the latter until and during such new trial or further order, judgment or commitment of the trial
court, unless sooner admitted to bail.
The appeal in Case No. 4493, the habeas corpus proceeding, involves questions for which
the remedy of appeal is appropriate. Indeed those questions were presented by the appeal in
Case No. 4484. There being no lack of jurisdiction in the district court to enter the
judgment of conviction, its action in denying Garner's application for a writ of habeas
corpus is affirmed.
no lack of jurisdiction in the district court to enter the judgment of conviction, its action in
denying Garner's application for a writ of habeas corpus is affirmed.
____________
78 Nev. 377, 377 (1962) Nevada Industrial Commission v. Bibb
NEVADA INDUSTRIAL COMMISSION, Appellant, v. FORREST M. BIBB,
Guardian Ad Litem for JOHN STEPHEN BIBB, Respondent.
No. 4507
September 18, 1962 374 P.2d 531
Workmen's compensation case. The lower court rendered a judgment awarding a carrier
newsboy compensation and benefits under the Industrial Insurance Act, and newspaper
publisher appealed. The Supreme Court, McNamee, J., held that newsboy, who was injured
while acting as newsboy, was employee within Industrial Insurance Act, where publisher
controlled hours, place, nature, and amount of work to be done, had right to discharge
newsboy without liability, furnished newspapers, and controlled price thereof, and
compensation newsboy was to receive.
Judgment affirmed and motion denied.
William J. Crowell, of Carson City, for Appellant.
Gordon W. Rice, of Reno, for Respondent.
Failure of newspaper publisher to specifically mention carrier newsboy or any other employee operating
under same type of contract after accepting provisions of Industrial Insurance Act did not constitute
rejection of act by publisher, and newsboy was entitled to benefits of the act. NRS 616.055, 616.270.
In determining whether individual is employee entitled to workmen's compensation, one test is that of
control; if he is subject to control, supervision, or authority of person for whom work is done, he is
employee within Industrial Insurance Act. NRS 616.055.
Carrier newsboy who was injured while acting as newsboy was employee of newspaper publisher
within Industrial Insurance Act where publisher controlled hours, place, nature, and amount of work to be
done, had right to discharge newsboy without liability, furnished newspapers, and controlled price thereof
and compensation newsboy was to receive. NRS 616.055.
In so far as contract under which carrier newsboy worked for newspaper publisher purported to change
newsboy's status from that of person entitled to compensation under Industrial Insurance Act, contract was
void. NRS 616.265.
OPINION
This is an appeal from a judgment awarding Bibb, a minor, compensation and benefits
under the Nevada Industrial Insurance Act.
Matters pertaining to this case have had the consideration of this court twice before. In
Reno Newspapers, Inc. v. Bibb, 76 Nev. 332, 353 P.2d 458, the appeal of Reno Newspapers,
Inc., was dismissed for procedural reasons. In Nevada Industrial Commission v. Bibb, 77
Nev. 8, 358 P.2d 360, the judgment against the Commission was reversed for the reason that
it was based on a concession which could not bind the Commission, as it was made by an
attorney who was not acting on behalf of the Commission. In the latter appeal we stated that
an important legal question to be determined concerned the status of Bibb resulting from the
nature of his relationship with the Newspaper.
In the court below the action was dismissed as to all defendants other than the Nevada
Industrial Commission and was then submitted to the court for decision on the following
agreed statement of facts.
[Headnote 1]
On October 3, 1957, while he was acting as a carrier newsboy for Reno Newspapers, Inc.,
Bibb was injured by an automobile driven by Marilyn Wright. Prior to October 3, 1957, and
when he was 16 years old, John Stephen Bibb entered into an agreement with Reno
Newspapers, Inc., whereby Bibb became the newsboy to carry and deliver the Nevada State
Journal to the subscribers living along a certain route in Reno, Nevada. The boy's mother
agreed to be responsible for the boy's performance of the contract. Reno Newspapers, Inc.,
had accepted the provisions of the Industrial Insurance Act without specifically mentioning
Bibb or any newsboy operating under the same type of contract as Bibb.
1
On January 15,
1958,
2
Bibb entered into a written contract with the Nevada State Journal, owned and
operated by Reno Newspapers, Inc. This contract recited that Bibb had received a list of
subscribers who purchase the Nevada State Journal and who live on a certain paper route in
Reno, and provided that Bibb would:
(1) Sell and regularly and promptly deliver the Nevada State Journal to all of said
subscribers, at the established rate therefor;
(2A) Not sell or deliver any other newspapers to any person without the written consent of
the Nevada State Journal;
(2B) Not sell or deliver in, or along with the Nevada State Journal, any other material,
notice or printed matter, without the written consent of the Nevada State Journal;
(3) Do all in his power to promote and extend the circulation of the Nevada State Journal;
(4) Prior to giving up said paper route give the Nevada State Journal two weeks' notice of
his intention so to do;
(5) Not turn over said list of subscribers to any person or disclose the name of any
subscriber for the Nevada State Journal without first obtaining the consent of the Nevada
State Journal;
____________________

1
The failure to mention Bibb after accepting the provisions of the act is without significance. Nevada
Industrial Commission v. Peck, 69 Nev. 1, 239 P.2d 244.

2
This apparently erroneous date is explained in footnote 4.
Nevada State Journal without first obtaining the consent of the Nevada State Journal;
(6) Regularly and promptly pay each Thursday for all copies of the Nevada State Journal
sent to him in accordance with his orders, at the established wholesale rate.
The contract further recited that Bibb had not paid any money to any person for the list of
subscribers and that he would not sell it to any person or persons for any money; would not
collect in advance from any of his subscribers, and should he do so he would become
responsible for any amount under his bond and deposit. It gave the Nevada State Journal the
power of cancellation without liability and the right to discharge Bibb at any time for good
and sufficient reason,
3
and if cancelled Bibb agreed to turn over forthwith to the Nevada
State Journal the names of all subscribers to whom he had been delivering the newspaper, and
he agreed to keep a written list of all such persons with their street addresses and that such
written list would be the property of the Nevada State Journal.
The contract also recited that Bibb desired to participate in the Nevada State Journal plan
of newspaper-boy insurance protection and authorized the Newspaper to add $1.00 per month
to the first billing of every month for this purpose, the insurance to cover every kind of
accidental bodily injury, day or night, at home or school, work or play.
It was stipulated by the appellant and respondent in the court below that the deposition of
Bibb taken on November 27, 1959, his affidavit in opposition to the motion for summary
judgment, and the affidavit of Clarence K. Jones in support of the motion for summary
judgment could be considered in evidence as part of the agreed statement of facts.
It appears in the said Bibb deposition that he had worked approximately two years for
Reno Newspapers, Inc.
____________________

3
Bibb's affidavit, hereinafter referred to, states that he was always led to believe that if he did not service his
route in accordance with the numerous written suggestions and requirements made from time to time as to
details, methods and procedure his employment would be terminated.
worked approximately two years for Reno Newspapers, Inc. The affidavit of Clarence K.
Jones states that the Newspaper did not deduct social security or withholding taxes from
Bibb's earnings; that it did not pay him wages; and that it exercised no more control over him
than that specified in the written contract. Bibb's affidavit denies that he always acted only in
accord with the terms of the said written contract and states that during all of his employment
he was operating partially under contracts similar to the January 15, 1958 contract;
4
that in
addition to the specifications of the written contract he was required: (1) to deliver to the
subscribers not later than 7:00 a.m. each morning about 80 newspapers; (2) to collect from
subscribers once each week 40, of which he gave 29 to the Newspaper; (3) to obtain new
subscribers on his route by distributing advertising material and offering prizes furnished by
the Newspaper as an inducement; and (4) to refrain from making street sales of the
newspaper.
The trial court determined from the agreed statement of facts and from the evidence
submitted on stipulation that Bibb was entitled to compensation and benefits under the
Nevada Industrial Insurance Act, regardless of whether his status was that of an employee or
of an independent contractor under said contract.
NRS 616.270 allows compensation for personal injuries by accident sustained by an
employee, subject to the provisions of the act, arising out of and in the course of his
employment.
NRS 616.055 provides that the word employee shall be construed to mean every person
including minors in the service of an employer under any appointment or contract of hire
or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully
employed.
____________________

4
The record on appeal is confusing because the contract in the record is dated January 15, 1958, while the
record elsewhere refers to the written contract as having been executed prior to October 3, 1957. Also, the
record gives both October 3, 1957 and October 3, 1958 as the date of the accident. Bibb's affidavit recites that
the contract of January 15, 1958 was in effect when he was injured. The court's formal findings of fact state:
The agreement under which Bibb was operating on the 3rd day of October, 1957, contained the same words
and figures as the agreement signed on the 15th day of January, 1958. Accordingly, the discrepancy in dates is
immaterial.
the service of an employer under any appointment or contract of hire or apprenticeship,
express or implied, oral or written, whether lawfully or unlawfully employed.
NRS 616.060 excludes from the category of employee any person whose work is not in the
course of the trade, business, profession or occupation of his employer.
NRS 616.120 provides that trade, business, profession or occupation of his employer
includes all services tending toward the preservation, maintenance or operation of the
business, business premises or business property of the employer.
NRS 616.105 defines an independent contractor as any person who renders service for a
specified recompense for a specified result, under the control of his principal as to the result
of his work only and not as to the means by which such result is accomplished.
[Headnote 2]
In determining whether an individual is an employee entitled to compensation under
workmen's compensation acts, one test is that of control. Barrett v. Selden-Breck Const. Co.,
103 Neb. 850, 174 N.W. 866. If he is subject to the control, supervision, or authority of the
person for whom the work is done, his status is that of an employee within the meaning of
such statutes. Industrial Commission v. Navajo County, 64 Ariz. 172, 167 P.2d 113. Indeed
lack of control is not always conclusive. Hannigan v. Goldfarb, 53 N.J.Super. 190, 147 A.2d
56; see Simon Service Incorporated v. Mitchell, 73 Nev. 9, 307 P.2d 110.
[Headnote 3]
The contract of January 15, 1959 and the Bibb affidavit delineated the relationship
between Bibb and the Newspaper. The Newspaper, among other things, controlled Bibb's
hours of work, his place of work, the nature of his work, the amount of work to be done, the
right to discharge without liability, the furnishing of supplies (newspapers), the sales price
thereof, and the compensation Bibb was to receive.
Under said statutory provisions it is clear to us that respondent Bibb at the time of his
injuries was an employee of Reno Newspapers, Inc., and that his injuries arose out of and
in the course of his employment. Bigger v. Consolidated Underwriters, Tex.Civ.App., 315
S.W.2d 6S1; Elder v. Aetna Cas. & Surety Co., 149 Tex.
respondent Bibb at the time of his injuries was an employee of Reno Newspapers, Inc., and
that his injuries arose out of and in the course of his employment. Bigger v. Consolidated
Underwriters, Tex.Civ.App., 315 S.W.2d 681; Elder v. Aetna Cas. & Surety Co., 149 Tex.
620, 236 S.W.2d 611; Havens v. Natchez Times Pub. Co., 238 Miss. 121, 117 So.2d 706;
Laurel Daily Leader v. James, 224 Miss. 654, 80 So.2d 770. See also Salt Lake Tribune Pub.
Co. v. Industrial Commission, 99 Utah 259, 102 P.2d 307.
Cases where a newspaper vendor sells papers on the street for a profit, such as New York
Indemnity Co. v. Industrial Accident Commission, 213 Cal. 43, 1 P.2d 12, are clearly
distinguishable. Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 184 S.E. 183, 185; Hampton
v. Macon News Printing Co., 64 Ga.App. 150, 12 S.E.2d 425, 430. Cases involving liability
of an alleged employer to a third person injured by the negligence of an alleged employee
where the doctrine of respondeat superior is not always appliedas in Batt v. San Diego Sun
Pub. Co.. 21 Cal.App.2d 429, 69 P.2d 216; Bohanon v. James McClatchy Pub. Co., 16
Cal.App.2d 188, 60 P.2d 510; and Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726are
also distinguishable. As noted in Heidtman v. Nevada Ind. Commission, 78 Nev. 25, 368
P.2d 763, such cases rest upon a rationale entirely different from that in workmen's
compensation cases. See dissenting opinion of Mr. Justice Smith in Powell v. Appeal Board,
345 Mich. 455, 75 N.W.2d 874.
[Headnote 4]
In so far as the contract under which Bibb worked purported to change Bibb's status from
that of a person entitled to compensation under the Nevada Industrial Act, it was void. NRS
616.265.
Respondent has filed a motion to strike appellant's reply brief upon the ground that it
contains matters which more properly should have been contained in appellant's opening
brief. We have considered the reply brief insofar as it responds to the answering brief and
have disregarded the new matters contained therein.
Schatz v. Devitte, 75 Nev. 124, 335 P.2d 783; Blouin v. Blouin, 67 Nev. 341, 218 P.2d 937;
In re Benson's Estate, 62 Nev. 376, 151 P.2d 762.
Judgment is affirmed and the motion to strike is denied.
____________
78 Nev. 384, 384 (1962) Alamo Airways, Inc. v. Benum
ALAMO AIRWAYS, INC., Appellant, v.
ROLAND I. BENUM, Respondent.
No. 4498
ROLAND I. BENUM, Appellant, v.
ALAMO AIRWAYS, INC., Respondent.
No. 4510
September 20, 1962 374 P.2d 684
Cross-appeals from judgment of the Eighth Judicial District Court, Clark County; David
Zenoff, Judge.
Action for damages to a bailed airplane. From a judgment of the trial court cross-appeals
were taken. The Supreme Court, Badt, C. J., held that bailee of a bailment for hire of an
airplane delivered to the bailee for storage in the bailee's tie-down area was liable for
damage to the bailed airplane because of its negligence in using inadequate tie-downs to
withstand the pressure of anticipated winds where the wind which damaged the plane could
have been, and was foreseen and that there were no other reversible errors.
Both judgments affirmed.
Morse & Graves and Lee P. Rose, of Las Vegas, for Appellant.
Stewart, Horton & McCune, of Reno, for Respondent.
1. Bailment.
A bailee for hire is not an insurer of the bailed property and is not liable to the bailor for its loss or
destruction without the bailee's fault.
2. Bailment.
Where property bailed is delivered in good condition to the bailee and returned in a damaged state, a
presumption arises that the damage is due to the bailee's fault and unless he sustains the burden of proving
that such damage was due to other causes consistent with due care on his part, the bailor becomes entitled
to judgment as a matter of law.
3. Aviation Bailment.
A bailee in the absence of special contract is held to the exercise of ordinary care in relation to the subject
matter thereof and the rule has been applied to the bailment of airplanes.
4. Negligence.
Where it is contended that the damage resulted from an act of God, such act, to avail defendant, must
be such a providential occurrence of extraordinary manifestation of the forces of nature that it could not
reasonably have been foreseen, and the effect thereof avoided by reasonable care or by the use of those
means which the situation renders reasonable to employ.
5. Aviation.
Bailee of a bailment for hire of an airplane delivered to the bailee for storage in the bailee's tie-down
area was liable for damage to the bailed airplane because of its negligence in using inadequate tie-downs
to withstand the pressure of anticipated winds where the wind which damage the plane could have been and
was foreseen.
6. Aviation.
In bailor's action for damage to bailed airplane from winds on bailee's open tie-down area where the
plane was stored, charge stating the court's conclusion that the bailee did not exercise reasonable care in
storing the plane because under the evidence the tie-downs were inadequate was not erroneous.
In bailor's action for damage to a bailed plane stored on bailee's tie-down area which was damaged by
winds, exclusion of evidence regarding standard of care used by other operators in the area was not shown
to be reversible error where no offer of proof was requested or made. NRCP 43(c).
8. Negligence.
Improvement of safety devices is not indicative of negligence but merely of a desire to prevent future
injury to person or property.
If there is sufficient competent evidence to support the findings, the judge will be presumed to have
disregarded the inadmissible evidence even if it be determined such, and relied upon the competent
evidence.
In bailor's action for damages to bailed airplane damaged by winds on the bailee's tie-down area,
admitting testimony that bailee subsequent to the accident partially changed its tie-down methods was
not reversible error under the circumstances of this case.
methods was not reversible error under the circumstances of this case.
In bailor's action for damage to a bailed airplane, bailor was not entitled to complain that the court
allowed him $60 in excess of the amount of the judgment to which he was entitled.
OPINION
The main problem presented by the cross-appeals in this case is whether, in a bailment for
hire, the defendant bailee had sustained the burden of proving that damage to the bailed
airplane was due to causes consistent with due care on his part. Other questions relating to the
trial court's admission and exclusion of evidence are likewise determined. The parties are
referred to in their abbreviated names.
Benum, plaintiff below, was the owner of a light airplane, a 1947 Stinson, which he
delivered to defendant Alamo, a flying service operator, for the purpose of storage. The
parties agree that the storage arrangement constituted a bailment for hire, the bailor paying an
agreed sum as monthly rental, in consideration of which the bailee was to store the airplane in
the bailee's open tie-down area on McCarran Field near Las Vegas. Benum taxied the plane
to a convenient point, whereupon Alamo's employees removed it to the tiedown area and
performed the tie-down procedures. The purpose of mooring or tying down aircraft is to
prevent their being blown about and damaged by wind. The tie-down area is equipped with
several parallel steel cables stretched along the ground and anchored at each end and at
30-foot intervals to underground deadmen. The planes are parked abreast. A chain is
attached to the cable by means of an S-shaped hook and extended upward to where it is
attached by a similar S-shaped hook to the mooring fittings or tie-down rings on the
underside of the aircraft's wing or strut. The length of the chain is adjusted to the demanded
length and for tautness by attaching the S-hook to the mooring ring on the plane and
fastening the chain to the cable.
mooring ring on the plane and fastening the chain to the cable. The other wing and the tail are
similarly fastened down.
The morning of July 28, 1958, was calm. Hourly readings by the United States Weather
Bureau at the airport, a short distance from where the planes were moored, registered from
calm to ten knots an hour. At noon it was again blowing five knots and characterized as light.
A thunderstorm, typical to a July day, came up around noon or one o'clock as is normal in
such thunderstorm conditions. Such storms are common in that area at that time of year. The
United States Weather Bureau attendant characterized it as a common thunderstorm. The
weather bureau reported early that morning that there would be winds all that day. On the
preceding day, July 27, it reported that there would be high winds all day on the 28th. At
12:45 p. m. the wind registered 41 knots and at 1:25 p. m., 40 knots. Plaintiff's airplane was
torn loose from its moorings, lifted into the air by the wind, and turned over upon its back,
resulting in severe damage. Two other planes owned by Alamo were likewise torn loose but
remained upright. It was demonstrated both by testimony of witnesses and photographs of the
mooring chains that the S-hooks that were engaged in the mooring rings on both wings had
been stretched out almost straight. The mooring rings attached to the wings or struts, while
elongated, had remained fast. Nothing in the evidence indicated that Benum's plane would
have been torn loose if the S-hooks had remained intact. A typical chain was introduced in
evidence. It indicates that the S-hook appears to be of a different material than the links of the
chain. No evidence was offered concerning the nature or strength of the material in the
S-hook.
[Headnotes 1, 2]
1. A bailee for hire is not an insurer of the bailed property and is not liable to the bailor
for its loss or destruction without the bailee's fault. Bramlette v. Titus, 70 Nev. 305, 267 P.2d
620. However, where the property is delivered in good condition to the bailee and returned
by him in a damaged state, a presumption arises that the damage is due to the bailee's
fault, and unless he sustains the burden of proving that such damage was due to other
causes consistent with due care on his part, the bailor becomes entitled to judgment as a
matter of law. Gaudin Motor Co., Inc. v.
and returned by him in a damaged state, a presumption arises that the damage is due to the
bailee's fault, and unless he sustains the burden of proving that such damage was due to other
causes consistent with due care on his part, the bailor becomes entitled to judgment as a
matter of law. Gaudin Motor Co., Inc. v. Wodarek, 76 Nev. 415, 356 P.2d 638; Manhattan
Insurance Co. v. Grand Central Garage, 54 Nev. 147, 152, 9 P.2d 682; Donlan v. Clark, 23
Nev. 203, 205-206, 45 P. 1; Annot., Liability of bailee of airplane for damage thereto, 17
A.L.R.2d 913.
[Headnote 3]
Alamo contends, and Benum concedes, that the bailee, in the absence of special contract,
is held to the exercise of ordinary care in relation to the subject matter thereof. This has been
applied to the bailment of airplanes in Meyer v. Moore, 329 P.2d 676 (Okla. 1958); Shephard
v. Graham Bell Aviation Service, 56 N.M. 293, 243 P.2d 603; Odle v. Dunbar, 129
Cal.App.2d 466, 277 P.2d 418; Zanker v. Cedar Flying Service, 214 Minn. 242, 7 N.W.2d
775; Southern Air Transport v. Gulf Airways, 215 La. 366, 40 So.2d 787; City of Jackson v.
Brummett, 224 Miss. 501, 80 So.2d 827; and Central Aviation Co. v. Perkinson, 269 Ala.
197, 112 So.2d 326. All these cases involved the sufficiency of the respective tie-down
systems of the defendant and all involved cases in which the plane was torn from its moorings
by high winds, which it was the duty of the bailee to anticipate. In all cases judgment in favor
of the bailor was sustained. Alamo seeks to distinguish these cases because in each of them
there was a clear breach of the duty owed by the bailee which it claims is lacking in the
instant case; that in City of Jackson v. Brummett, supra, and in Odle v. Dunbar, supra, the
tie-down ropes used were rotten; that in Central Aviation Co. v. Perkinson, supra, the
tie-downs were ropes, not chains; that in Southern Air Transport v. Gulf Airways, supra, no
tie-downs were used, the parking brakes were not locked, nor were the wheels blocked; that
in Meyer v. Moore, supra, the tie-down chains had been permitted to become rusted,
corroded, worn, weakened and dilapidated.
been permitted to become rusted, corroded, worn, weakened and dilapidated. It is true that in
those cases the precise degree and the precise nature of the bailee's negligence showed some
variation from Alamo's negligence in the present case. Yet in principle there is no distinction
in the failure of a rope (as distinguished from a chain), a weak rope (as distinguished from a
sufficiently strong rope or a chain), or a rusted or corroded chain (as distinguished from a
chain equipped with an S-hook that was not strong enough to withstand the strain). In each
case, as in the present case, the bailee's negligence consisted in using tie-downs inadequate to
withstand the pressure of anticipated winds.
[Headnotes 4, 5]
While Alamo points to some testimony to the effect that the high wind was a twister and
that it was an unusually strong wind, there was much substantial evidence to the contrary. The
conflict on this point was resolved in Benum's favor and it is not our province to interfere.
Where it is contended that the damage resulted from an act of God, such act, to avail the
defendant, must be such a providential occurrence or extraordinary manifestation of the
forces of nature that it could not reasonably have been foreseen, and the effect thereof
avoided by the exercise of reasonable prudence, diligence and care, or by the use of those
means which the situation renders reasonable to employ. Southern Air Transport v. Gulf
Airways, 215 La. 366, 40 So.2d 787. In that case, as here, it was said that the strong winds
could be and were foreseen. To like effect are City of Jackson v. Brummett, 224 Miss. 501,
80 So.2d 827, and other cases. Alamo's reliance on its showingthat its manager and his
crew had spent many hours on the day in question in inspecting all the planes in the tie-down
area to be assured that they were all properly tied down against the windcannot prevail
against the court's finding, supported by substantial evidence, that the tie-downs were
inadequate to withstand a foreseeable wind.
[Headnote 6]
2. Alamo contends, however, that the trial court went far beyond requiring Alamo to
exercise reasonable and ordinary care under the circumstances but required it to exercise the
highest degree of care toward the bailed airplane. Appellant's reference is to the language
used by the trial court when at the conclusion of oral arguments following the trial, the court
said: The defendant being in the business of taking care of airplanes is held to know their
sensitivity; that in this area of gusty winds every conceivable precaution must be taken to
what would otherwise be an extraordinary degree or in the business of taking care of planes in
an ordinary degree. Now, then, they must anticipate or foresee what could happen in an act of
God case and guard against it so long as airplanes are concerned, whether it be by bigger and
stronger chains or double or triple chains. These, this Court holds, that the defendant must do.
Here the tie-downs were inadequate both in the method used and the number of chains used.
The tie-downs gave to the winds, not the plane itself: * * *.
We construe the foregoing statement simply as the court's conclusion that the defendant
did not exercise reasonable care in storing the plane, because under the evidence the
tie-downs were inadequate. When the court concluded, the tie-downs gave to the winds, not
the plane itself, it told the whole story. Ordinary and reasonable precautions would require
the use of S-hooks that would not straighten out and give way by reason of a foreseeable wind
pressure applied to the plane. The court's reasoning simply indicated its holding that ordinary
care applied to outdoor storage of, let us say, a heavy wagon would not be sufficient as
applied to outdoor storage of an airplane. Such reasoning is logical and correct. The court's
formal finding was that defendant negligently failed to properly tie down said airplane as a
proximate result of which said airplane was blown over by the wind and greatly damaged.
3. Alamo asserts error in the court's exclusion of evidence regarding the standard of care
used by other operators in the Las Vegas area.
[Headnote 7]
John Williard Matheson, vice president and general manager of Alamo Airways, was
asked: Q. Have you flown to a number of airports around this area? A. Yes, I have. Q. Do
you know what type of tie-down systems they use? Objection was made on the ground of
incompetency and irrelevancy. Appellant argued that the type of the tie-down system used by
other airports in the area would be relevant and material to the question whether defendant
here was negligent or not. The court sustained the objection. Alamo contends that if the
methods used by it were the same as those used in other airports in the vicinity, it would
indicate that it was not guilty of a lack of due care, in other words, that proof of custom was
proper. The trouble is that the question was never properly presented to the court. The witness
might have answered no, or he might have said yes, and then on voir dire might have
admitted that he knew in general the system used by other airports but did not know the size
or the strength of the material used in the chains or in the hooks that engaged the mooring
rings on the plane. The witness would have had to be possessed of such knowledge to make
his testimony relevant.
1
This is particularly so in view of the evidence (the photographs of
the chains and the hooks and the actual chain received in evidence) which showed the hooks
almost completely straightened out. Further, the witness might have had no knowledge
whether the strong winds prevailed in the other airports as against the evidence in the instant
case showing that a thunderstorm condition with strong winds was foreseeable on the day in
question. No offer of proof was requested or made, and we will not speculate as to what the
witness's testimony might have been. NRCP 43(c). Under the circumstances, the assignment
is without merit.
____________________

1
At the oral argument Alamo maintained that it had theretofore qualified the witness. He had testified to his
experience at the Lemoore Air Base, Lemoore, California, and the Sparks airport in sparks, Nevada. He also
referred to an airport in Apple Valley in California. The California airports are on the other side of the Sierras.
The Sparks airport is 500 miles away form McCarran Field. No similarity of wind conditions can be presumed.
[Headnote 8]
4. Alamo assigns error in the court's admission of testimony that defendant, subsequent to
the accident, partially changed its tie-down methods. The defendant's manager had testified to
the tie-down method it used. On cross-examination he was asked whether the defendant had
now changed that method. The overruling of an objection is the error assigned. Appellant
cites Chicago, B. & Q. R. Co. v. Kelley, 74 F.2d 80 (CCA 8th, 1934), Anson v. Evans, 19
Colo. 274, 35 P. 47, and other authorities, to the effect that what was done afterwards could
throw no light upon the question of the asserted negligence or lack of care at the time of the
accident, and that it is error a admit evidence of what was done to guard against future
accidents. Improvement of safety devices is not indicative of negligence, but merely of a
desire to prevent future injury to person or property. Morse v. Minneapolis & St. L. Ry. Co.,
30 Minn. 465, 16 N.W. 358 (and see McCormick, Evidence, 545, and 9 Hastings Law
Journal, 316).
Later the witness was permitted to testify over objection that although at the time of the
accident defendant was hooking all airplanes with the hook in the eye or mooring ring on the
plane, this had since been changed by passing the loop of the cable through, then using the
hook, something like a cotter pin.
[Headnotes 9, 10]
It is conceded that for many years in 47 states evidence of repairs, alterations, or other
precautions taken after an accident has been held inadmissible either as proof of antecedent
negligence or as an admission of negligence. The reason for the virtual unanimity is that the
admission of such evidence would discourage all owners, even those who had been genuinely
careful, from improving the place or thing that had caused the injury, because they would fear
the evidential use of such acts to their own disadvantage, and that innocent persons would
suffer by such refraining from improvements. 2 Wigmore, Evidence, sec. 283 (3d ed., 1940).
Recognized exceptions to the rule, such as for purposes of rebuttal or impeachment, have
been severely criticized, although these exceptions have been approved in some 30-odd
jurisdictions. Annot., 64 A.L.R.2d 1305.
of rebuttal or impeachment, have been severely criticized, although these exceptions have
been approved in some 30-odd jurisdictions. Annot., 64 A.L.R.2d 1305. Interesting as the
subject is, we need not pursue it. Virtually all the cases recognize the danger of admitting
such evidence in cases tried to a jury. When so admitted, the jury must be instructed as to the
limited purpose of the evidence. When tried to the court without a jury, the danger of such
evidence is greatly diminished, if not entirely avoided. This is particularly so when, without
such evidence, the record amply sustains the judgment. In the present case the court indicated
when the objection was made that counsel had not qualified his question. We understand the
court's meaning to be that counsel had not indicated that he limited his question to purposes
of impeachment and not as proof of negligence. Hence the court was aware of the situation.
This further appears from the proceedings on motion for new trial. This is a classic case for
application of the rule that if there is sufficient competent evidence to support the findings,
the judge will be presumed to have disregarded the inadmissible evidence, if it be determined
such, and relied upon the competent evidence. Green v. Henderson, 66 Nev. 314, 208 P.2d
1058; Southern California Jockey Club v. California Horse Racing Board, 36 Cal.2d 167, 223
P.2d 1; Odom v. First National Bank of Arizona, 85 Ariz. 238, 336 P.2d 141. We must
therefore reject this assignment of error.
Other contentions of appellant Alamo do not require consideration.
[Headnote 11]
As first noted, Benum filed a cross-appeal. The court rendered a judgment in favor of
Benum in the sum of $1,895, which it arrived at by applying 20 percent depreciation against
the original cost of $3,200 and reducing the balance by sale of the salvage for $665. Benum
properly asserts that there is nothing in the record to justify the application of the court's
method of deducting depreciation. However, there is direct evidence in the record that the
value of the airplane before the accident was $2,500.
the accident was $2,500. Applying against this the salvage of $665, the evidence clearly
supported a judgment in favor of Benum for $1,835. Benum is in no position to complain
because the court allowed him $60 in excess of the amount of the judgment to which he was
entitled. In other words, he was in no way aggrieved by the method used by the court. Alamo
did not raise the point of the excessive judgment and stated during the oral argument that its
appeal did not question the discrepancy.
As to both appeals, the judgment is affirmed. No costs are allowed.
____________
78 Nev. 394, 394 (1962) Grenz v. Grenz
JOYCE GRENZ, Appellant, v. ALFRED HENRY GRENZ, Respondent.
No. 4210
September 24, 1962 374 P.2d 891
Appeal from the Second Judicial District Court, Washoe County; Gordon W. Rice and
Clel Georgetta, Judges.
Husband brought suit for divorce on ground that he and wife had lived separate and apart
for three consecutive years without cohabitation. The trial court rendered a decree adverse to
the wife, and she appealed. The Supreme Court, McNamee, J., held that if provisions of
original divorce decree requiring husband to purchase house for wife, and providing that title
should be vested in children, and that after youngest child should reach age of majority, house
could be sold with consent of children and proceeds could be divided equally between
husband and wife should be construed as relating solely to support of children, District Court
could modify decree by deleting those provisions, but that if construed as providing for
alimony or settlement of property, they were not subject to modification, and that it was
necessary that cause be remanded to District Court for construction and removal of
ambiguity.
78 Nev. 394, 395 (1962) Grenz v. Grenz
it was necessary that cause be remanded to District Court for construction and removal of
ambiguity.
Remanded with directions and for further proceedings.
Goldwater, Taber and Hill, and Joseph J. Kay, Jr., of Reno, for Appellant.
T. L. Withers, of Reno, for Respondent.
1. Divorce.
Original and amended findings of fact and conclusions of law in divorce suit were not appealable
determinations, and appeal therefrom was required to be dismissed. NRCP 72(b).
2. Divorce.
It was proper for trial court in divorce suit to approve agreement of parties relative to custody and
support of children, support of wife, and purchase of house for wife and children, if trial court thought
agreement fair and equitable to all concerned.
3. Divorce.
There was implied consent by parties in divorce suit that agreement relative to custody and support of
children, support of wife, and purchase of house for wife and children be entered in minutes, where
agreement was entered in minutes of court without objection, and no correction was made by either party as
directed by trial court in event that either party thought that trial court did not state agreement accurately.
DCR 21.
4. Divorce.
Evidence sustained action of trial court in modifying custody provisions of divorce decree to extent of
allowing husband to have custody of children for one month of year and relieving him of child support
payments during that period. NRS 125.140.
5. Divorce.
Alleged bias and prejudice of trial court, not having been raised in trial court in divorce suit, would not
for first time be considered on appeal.
6. Divorce.
If provisions of original divorce decree that husband should purchase house for wife and that title should
be vested in children and that after youngest child should reach age of majority the house could be sold
with consent of children and proceeds could be divided equally between husband and wife should be
construed as relating solely to support of children, trial court could modify decree by deleting provisions,
but if construed as providing for alimony or settlement of property, they were not subject to modification.
NRS 125.140, 125.170.
7. Divorce.
Trial court has inherent power independent of statute to remove any ambiguity in divorce decree.
78 Nev. 394, 396 (1962) Grenz v. Grenz
8. Divorce.
It is province of trial court to construe its divorce decree.
9. Divorce.
Supreme Court would remand divorce suit to trial court to construe and remove ambiguity from
provisions of original divorce decree requiring husband to purchase house.
Answering brief of respondent husband would be struck by Supreme Court, where he had failed to pay
appellant wife preliminary attorney fee of $500 awarded to her by trial court.
OPINION
Respondent husband commenced an action for divorce against his wife on January 30,
1958 upon the ground that they had lived separate and apart for three consecutive years
without cohabitation. On May 23, 1958, the court signed and on May 26, 1958, filed its
Findings of Fact, Conclusions of Law, and Decree of Divorce, wherein the husband was
awarded a divorce from the wife, she was awarded custody of the four minor children with
reasonable visitation rights to the husband, the husband was ordered to pay the wife $75 per
month per child for their support, and the further sum of $100 per month to the wife during
her lifetime or until she remarries, as alimony. The decree also provided:
5. That the plaintiff, upon request of the defendant, purchase a dwelling house or home
for the defendant in any place designated by the defendant, save and except in the State of
Nevada, said home not to exceed the total purchase price of Fifteen Thousand Dollars
($15,000) and the down payment for said home not to exceed the sum of Twenty-Five
Hundred Dollars ($2500), all details as to monthly payments on said home and the financing
of the purchase of said home to be arranged for and taken care of by the plaintiff.
6. That the defendant leave the City of Reno and State of Nevada for the purpose of
arranging for the purchase of said home not later than June 10, 1958; that actual title to said
home be vested in the four minor children and that said home shall not be sold until the
youngest of said children reaches the age of majority, but that thereafter the same may
be sold with the consent of said children and the proceeds derived therefrom divided
equally between the plaintiff and the defendant."
78 Nev. 394, 397 (1962) Grenz v. Grenz
youngest of said children reaches the age of majority, but that thereafter the same may be sold
with the consent of said children and the proceeds derived therefrom divided equally between
the plaintiff and the defendant.
On August 12, 1958, respondent filed a motion to modify and amend the divorce decree by
awarding him custody of the children, relieving him of the monthly support payments for the
children, and deleting all of said paragraphs 5 and 6 relating to the purchase of a dwelling
house.
Pursuant to said motion, the lower court on March 19, 1959, modified the provisions
regarding custody to provide that the husband shall have the right to have one or more of said
children spend the month of July each year with the husband and that he not be required to
make any payments for the support of any child during the period the child is in his custody.
The trial court further modified the decree to delete all reference to the dwelling house.
No written notice of the entry of original judgment was served or filed as provided by
NRCP 73. Written notice of entry of the judgment amending the decree was served April 7,
1959 and filed the following day.
[Headnote 1]
The wife has appealed from certain portions of the Findings of Fact and Conclusions of
Law as well as from portions of the Judgment and Decree filed on May 26, 1958, and has also
appealed from the whole of the said Findings of Fact, Conclusions of Law, and Judgment and
Decree. Her notice of appeal also states that she appeals from certain portions and the whole
of the amended Findings of Fact, Conclusions of Law, and Judgment and Decree entered on
April 7, 1959. The purported appeal from the original Findings of Fact and Conclusions of
Law, from the amended Findings of Fact and Conclusions of Law, and from portions thereof,
not being appealable determinations under NRCP 72(b), must be dismissed. Musso v.
Triplett, 78 Nev. 355, 372 P.2d 687; Warren v. Wilson, 47 Nev. 259, 220 P. 242.
Appellant wife's first assignment of error is that the original trial of the action, after
hearing the testimony of the resident witnesses and of the plaintiff, the court took a
recess and talked to the parties and counsel in chambers, and thereupon made its order
resulting in the original Findings of Fact, Conclusions of Law, and Decree of Divorce.
78 Nev. 394, 398 (1962) Grenz v. Grenz
the original trial of the action, after hearing the testimony of the resident witnesses and of the
plaintiff, the court took a recess and talked to the parties and counsel in chambers, and
thereupon made its order resulting in the original Findings of Fact, Conclusions of Law, and
Decree of Divorce. This, she claims, was error because she was denied her opportunity to
fully and accurately present to the Court her needs and the needs of the minor children for
support with a view to obtaining a fair and adequate support order. This claim of error is
without merit. It appears from the record that the three-year separation was adequately proven
as well as admitted, and it further appears that the parties in chambers agreed to the
provisions relative to custody and support of the children, and relative to support of the wife
and the purchasing of a home. Appellant intimates that the court in chambers forced the
parties into the agreement. There is nothing in the record to show any such duress. In fact, the
appellant testified at the hearing for modification of the decree that the judge had suggested
that she be awarded the divorce, to which she objected, and further that it was her idea that it
would be better to have the home put in the children's name. In this connection, the trial judge
stated in open court: Let the record show, Miss Clerk, during recess I have conferred with
both the plaintiff and defendant in this matter and I wish to commend them both. I feel from
my conversation there must be a divorce, but they have agreed as to the following. If I make a
mistake, counsel, please correct me. Thereupon, the court stated the agreement of the parties
as aforesaid.
[Headnote 2]
It was proper for the trial court to approve the agreement of the parties if it thought the
agreement fair and equitable to all concerned. Lewis v. Lewis, 53 Nev. 398, 2 P.2d 131.
Appellant nevertheless maintains that any agreement should have been reduced to writing
and signed by the parties or their counsel.
78 Nev. 394, 399 (1962) Grenz v. Grenz
[Headnote 3]
Rule 24, District Court Rules, provides: No agreement or stipulation between the parties
in a cause or their attorneys, in respect to proceedings therein, will be regarded unless the
same shall, by consent, be entered in the minutes in the form of an order, or unless the same
shall be in writing subscribed by the party against whom the same shall be alleged, or by his
attorney. The agreement was entered in the minutes of the court without objection. No
correction was made by either party as directed by the court in the event the trial judge did not
state the agreement accurately. An implied consent that the agreement be entered in the
minutes was apparent.
Appellant next contends that the court erred in modifying the original decree.
The hearing on the motion to modify the decree was held after a pre-trial conference, at
which pre-trial conference the court made no decision. At the hearing itself, the respondent
testified as to his change in circumstances. Appellant also testified.
Under NRS 125.140 a court may at any time during the minority of a child modify the
decree respecting his custody and support; likewise, before it was amended in 1961, NRS
125.170 permitted modification of a divorce decree with respect to the support of a wife.
Folks v. Folks, 77 Nev. 45, 359 P.2d 92. The 1961 amendment of NRS 125.170, however,
prohibits modification of installment judgments for alimony unless the court expressly
reserves jurisdiction to modify.
[Headnote 4]
Evidence in the record sustains the action of the lower court in modifying the custody
provisions to the extent of allowing the father to have custody of the children for one month
of the year and relieving him of the child-support payments during that period as aforesaid.
Appellant's objection to the modification of the decree with respect to the children is without
merit.
78 Nev. 394, 400 (1962) Grenz v. Grenz
[Headnote 5]
She further claims that the presiding judge in modifying the decree acted with bias and
prejudice, which she contends is shown by the court's statement relative to the conduct of the
wife, made when it ordered the modification. This, however, was a natural comment on the
evidence. In any event, this purported bias and prejudice, not having been raised in the lower
court, will not for the first time be considered on appeal. See Wilson v. Wilson, 66 Nev. 405,
212 P.2d 1066.
We cannot so easily dispose of appellant's objection to the action of the lower court which
relieved respondent of the obligation to purchase a home.
[Headnote 6]
The provisions of the original decree regarding the purchase of a home are unintelligible.
Whether they were intended to constitute support for the children, support for the wife, or
support for both, and include settlement of property rights between the husband and wife
cannot be ascertained. If we were to construe the provisions as relating solely to the support
of the children, the court could properly modify the decree by deleting the provisions
regarding the purchase of a home. Such a construction might seem warranted because title to
the home was to be vested in the four minor children. But, a different construction is possible
because the agreement further provides that the dwelling house was to be purchased for the
wife and, when the house was sold, the proceeds would be divided equally between the
husband and wife. If these provisions constitute alimony or a settlement of property the
original decree would not be subject to modification in this respect. NRS 125.170. See
Schmutzer v. Schmutzer, 76 Nev. 123, 350 P.2d 142; Krick v. Krick, 76 Nev. 52, 348 P.2d
752.
We are unable to ascertain the nature of the rights, if any, created in the wife and children
by these ambiguous, unintelligible, and unenforceable provisions of said paragraphs 5 and 6
of the original decree. Did the trial court intend to order the wife to leave the state not later
than June 10, 1958, or to arrange for the purchase of a home not later than June 10, 195S,
or to do both?
78 Nev. 394, 401 (1962) Grenz v. Grenz
home not later than June 10, 1958, or to do both? Would a failure of the wife to make a
request for the purchase of a home on or before June 10, 1958, or at all (the record shows no
request was ever made), absolve the husband from the mandate of the court that he do so? If a
home were to be purchased and the title vested in the four minor children with a restraint
against alienation until the youngest child reached his majority, what would be the rights of
the parties thereafter? Would the children still be entitled to an interest therein, when their
parents no longer owed them a duty of support? If so, what would be the nature of their
interest? What rights would the parents have if one or all of the children refused to consent to
a sale which would permit the proceeds therefrom to be divided equally between the parents?
[Headnote 7]
A court has inherent power independent of statute to remove any ambiguity in a judgment
or decree. Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95, 67 A.L.R. 824. For this reason the
action of the lower court in deleting paragraphs 5 and 6 from the original decree was proper.
If, however, its original intent in incorporating such provisions in the decree was, besides
providing additional support for the children, to give additional support for the wife, or to
settle property rights, or both, then some unambiguous, intelligible, and enforceable
provisions to accomplish this purpose must be incorporated in the decree in substitution for
said paragraphs 5 and 6.
[Headnotes 8, 9]
It is the province of the trial court to construe its judgments and decrees. Murphy v.
Murphy, 64 Nev. 440, 183 P.2d 632. Therefore, it is necessary that this cause be remanded to
the trial court for it to determine whether such a substitution must be made, and, if so, the
nature thereof.
[Headnote 10]
On April 10, 1962, appellant filed herein a motion to strike respondent's answering brief
upon the ground that respondent had not complied with this court's order of June 26,
1959, which awarded a preliminary attorney fee of $500 to appellant.
78 Nev. 394, 402 (1962) Grenz v. Grenz
that respondent had not complied with this court's order of June 26, 1959, which awarded a
preliminary attorney fee of $500 to appellant. We denied this motion on April 18, 1962, but
reserved the right to make any appropriate orders hereafter growing out of the failure of
respondent to pay to appellant the $500 attorney fee. We felt that such an order might tend to
coerce respondent to make payment. He has failed to do so, however, and his counsel failed
to appear for oral argument. Because of such failure to make payment, it is ordered that
respondent's answering brief be stricken. It is further ordered that appellant be allowed an
additional attorney fee of $500, and, on remand, the clerk of the lower court is directed to
enter judgment in favor of appellant against respondent in the sum of $1,000 plus costs
allowed on appeal upon which execution can issue.
Remanded with directions and for further proceedings. Costs to appellant.
Thompson, J., being disqualified, both parties stipulated to the submission of the appeal to
Chief Justice Badt and Justice McNamee.
____________
78 Nev. 402, 402 (1962) Havas v. Anderson
VIC HAVAS, Doing Business As VIC HAVAS MOTORS, Appellant, v. JUNIUS
ANDERSON, Respondent.
No. 4511
September 25, 1962 374 P.2d 523
Appeal from the Eighth Judicial District Court, Clark County; John Mowbray, Judge.
Action in replevin and for rescission of contracts for the sale of an automobile to plaintiff.
The trial court rendered judgment in favor of plaintiff, and defendant appealed. The Supreme
Court, Badt, C. J., held that the record did not support finding that there had been no
meeting of the minds and hence no contract.
record did not support finding that there had been no meeting of the minds and hence no
contract.
Reversed and remanded for new trial.
Calvin C. Magleby, of Las Vegas, for Appellant.
Berkson and Phillips, of Las Vegas, for Respondent.
Sales.
Record did not support buyer's cause of action for rescission of contracts for sale of automobile on
ground that they were induced by false representations, nor did it support finding that there had been no
meeting of the minds and hence no contract, though buyer had signed both contracts.
OPINION
Anderson sued Havas under a complaint on two counts. The first count is in replevin
alleging plaintiff's ownership and right of possession of a 1957 Oldsmobile of the value of
$1,000, unlawfully and illegally detained by the defendant, which had not been taken for
taxes, assessment, or a fine pursuant to statute or seized under an execution or attachment
against the property of the plaintiff. The second cause of action is for rescission of a contract
alleged to have been induced by false representations. The contract was for the purchase of a
1959 Pontiac, under the first contract, for $3,500. This was arrived at as follows:
Sale $3,995
Sales . 80

______

Total $4,075
Trade-in allowance
for 57 Olds..................................................................$1,000
Less payoff to bank........................................................ 400

______

600

______

Total................................................ $3,475
Registration and transfer fees.............................................................................................. 25

______

Total$3,500 The "second contract" was
for $3,500 as above, plus $1,600 for "time price differential" of $1,600, making a total of
$5,100.
The second contract was for $3,500 as above, plus $1,600 for time price differential of
$1,600, making a total of $5,100.
The first contract was entered into as a cash sale, as Anderson thought he would be able to
finance the same through a bank or some finance company. When it developed that he was
unable to finance the deal, the second contract was entered into. The terms were identical
with the first contract as to fixing the total balance at $3,500. Instead of a cash sale, however,
it provided for a $300 down payment and 50 monthly payments of $96 each, and added a
time price differential of $1,600, bringing the total to $5,100. When Havas discovered that
the payoff to the bank on Anderson's 1957 Olds was not $400 but $800, he demanded an
additional $320 cash payment, it having been agreed by the parties that if the $400 figure was
not accurate the contract would be adjusted in accordance with the true figure.
Anderson refused to go on with the transaction, returned the 1959 Pontiac to Havas and
demanded the return of his 1957 Olds and the return of his payment of $300. (This $300 he
had borrowed from a finance company in order to make the payment to Havas.) Upon Havas's
refusal, Anderson commenced his action.
Although Anderson had signed the two contracts and had affirmatively alleged his
execution of the contracts, the court found that there had been no meeting of the minds and
no contract. It adjudged the return to Anderson of the 1957 Olds, with no alternative
provision for payment of its value if delivery could not be had. It further adjudged that Havas
return to Anderson the $300 down payment. It further adjudged that Anderson pay to Havas
the payoff which Havas had paid to the bank which existed as a lien against the Olds, less
credit for return of insurance premium on the Olds. The amount of such insurance premium
nowhere appears.
Havas appealed and assigns as error (1) the court's failure to render an alternative
judgment for the possession of the automobile or the value thereof; (2) that the court's
findings of fact are clearly erroneous; and (3) that the court should have entered a
judgment that plaintiff take nothing.
that the court should have entered a judgment that plaintiff take nothing.
(1) With reference to the failure of the court to render an alternative judgment for the
return of the Olds or its value, respondent recognizes that this court has held such judgment to
be error. In Ex parte Havas, 78 Nev. 237, 371 P.2d 30. However, respondent says that this
court may itself correct the judgment or may remand with instructions to the trial court to
make the correction, otherwise affirming. In urging this course of action, the respondent
directs our attention to the following language in Ex parte Havas, supra: The record contains
evidence from which the court could have fixed the value of the Oldsmobile that was the
subject of the replevin action, thus affording to the court sufficient data for a judgment
requiring, in the alternative, the delivery of the automobile, or its value, in case delivery could
not be had, and damages for its unlawful detention. Such language does not indicate that had
the judgment been in correct form, i.e., in the alternative, that it would be sufficient to
withstand attack by appeal upon the merits. Ex parte Havas was a habeas corpus proceeding.
The sufficiency of the evidence to support the findings of fact made was not presented as an
issue in that case; it is presented as an issue on this appeal. Therefore, not only must the value
of the Oldsmobile be determined by the trial court, but in addition, we must at this time
determine whether the record is sufficient to sustain those findings which are necessary to the
judgment entered in respondent's favor. For the reasons hereinafter set forth, we believe that
the record does not support the cause of action for rescission, nor does it support the finding
of the trial court that the contracts were not entered into by the parties. Accordingly, a mere
correction of the judgment to provide alternative relief, i.e., delivery of the automobile, or its
value, will not suffice.
(2) Plaintiff's complaint prayed for judgment for a rescission of both contracts, for the
return of his $300 for the return of the 1957 Olds, with damages, or $1,000 for the
conversion, plus attorney fees and costs. As noted, the court found that the agreement was
never completed and that there was never a meeting of the minds.
noted, the court found that the agreement was never completed and that there was never a
meeting of the minds. In its oral opinion at the conclusion of the testimony the court reviewed
the negotiations leading up to the signing of the two contracts and concluded that the minds
of the parties had never met. It found that there was insufficient evidence to sustain an award
for plaintiff's loss of the use of the Olds. It refused to allow anything for the $400 worth of
repairs made upon the Olds under the undisputed testimony of the appellant, for the reason
that this was more than offset against the fact that the defendant has had the use and
retention of plaintiff's car for more than a year and a half during which time it has necessarily
depreciated to the detriment of plaintiff.
In view of the fact that the parties had actually signed both the first contract and the second
contract, the fact that plaintiff had specifically pleaded both contracts, alleged their execution
by the parties, introduce them in evidence, and prayed for a judgment of rescission by reason
of defendant's fraudulent representations, it is difficult to justify the holding that the minds of
the parties had never met. It is true that Anderson testified that he could neither read nor
write. He could read and understand figures, however, and clearly understood what the
figures under both contracts meant. He was no stranger to installment contracts. He had
actually bought his 1957 Olds from Havas under an installment contract and bank financing.
The trial court did not rely upon nor did it even mention Anderson's illiteracy.
Respondent insists that he was entitled to the judgment he received under the facts proved
irrespective of his pleadings. He refers to NRCP 54(c) and to Magill v. Lewis, 74 Nev. 381,
388, 333 P.2d 717, wherein we held that the court may grant a party that relief to which he is
entitled on the evidence regardless of the designation of the claim or the prayer for relief. The
trial court did not find fraud. Indeed, there is no evidence of fraud. Having found that there
was no contract, the court then apparently attempted to restore the parties to the status quo
ante contractum abortivum.
Thus it gave Anderson back his Olds and his $300 and required Anderson to pay Havas the
amount of Havas's payoff to the bank on the Olds, less what he had recovered from the
cancellation of the Olds's insurance. The amount of such refund, however, never appeared. It
might have been $100 or $10. Havas's payoff was $798.97, but the court did not make the
delivery of the Olds subject to the repayment by Anderson to Havas of this sum. (When
Anderson demanded the return of his Olds he made no offer to reimburse Havas for the
latter's payoff on that car.) Moreover, Havas had testified, without contradiction, that he had
put various repairs into the Olds at an expense of approximately $400. The court refused to
allow anything for this item on the ground that it was more than offset by Havas's retention of
the Olds for a year and a half and the car had necessarily depreciated. There was no evidence
of such depreciation or of the extent thereof in dollars and thus no support for such offset.
Thus we find that there are too many things missing from the record to permit us to send
the case back for a limited new trial.
At the oral argument Anderson abandoned his second cause of action, leaving the case a
simple one in replevin. This, then affects not only the plaintiff's complaint but the defendant's
answer, and new pleadings may be in order.
The judgment is reversed with costs and remanded for a new trial without prejudice to the
right of either party to amend his pleadings.
____________
78 Nev. 408, 408 (1962) Kendall v. Henry Mountains Mines
BELLE PEPPER KENDALL and A. L. KENDALL, Appellants, v. HENRY MOUNTAINS
MINES, INC., Respondent.
No. 4513
October 2, 1962 374 P.2d 889
Appeal from the First Judicial District Court, Storey County; Richard L. Waters, Jr.,
Judge.
Action for a judgment declaring void a deed of trust and restraining the respondent from
proceeding with the sale of property thereunder. From an adverse judgment of the trial court
the plaintiffs appealed. The Supreme Court, McNamee, J., held that creditor of a corporation
in an action in which fraud was neither pleaded nor proved could not challenge the validity of
resolutions of the corporate directors authorizing a deed of trust adopted at a meeting at
which one of the directors, who had received no notice in accordance with the bylaws, was
absent.
Affirmed.
Vargas, Dillon & Bartlett and Alex. A. Garroway, of Reno, for Appellants.
Stewart, Horton & McCune and Donald Stuart Bab, of Reno, for Respondent.
Corporations.
Creditor of a corporations in an action in which fraud was neither pleaded nor proved could not challenge
the validity of resolutions of the corporate directors authorizing a deed of trust adopted at a meeting at
which one of the directors, who had received no notice in accordance with the bylaws was absent.
OPINION
Sometime prior to May 20, 1958, Consolidated Virginia Mining Co., a corporation,
became indebted to appellants in the sum of approximately $135,000.
On May 20, 1958, while appellant A. L. Kendall was a director of said corporation,
Consolidated executed and delivered to Henry Mountains Mines, Inc., promissory notes
secured by a deed of trust on certain real property situated in Storey County, Nevada.1
The deed of trust was recorded in Storey County on May 23, 195S, and re-recorded there
on October 20, 195S.
and delivered to Henry Mountains Mines, Inc., promissory notes secured by a deed of trust on
certain real property situated in Storey County, Nevada.
1
The deed of trust was recorded in
Storey County on May 23, 1958, and re-recorded there on October 20, 1958.
Thereafter appellants, in order to satisfy the said obligation owed them by Consolidated,
commenced an action and obtained judgment against Consolidated. Execution issued upon
the judgment and the said property was sold by the sheriff to appellants and one Henley, who
later conveyed his interest therein to appellants. The sheriff's deed was dated March 10, 1961,
and recorded March 11, 1961.
Default having been made under the deed of trust, notice of such default was given and the
property was advertised to be sold on April 7, 1961. Before the sale took place, this action
was commenced by appellants. In their complaint they allege that they are the owners of the
property by virtue of the execution sale and the acquisition of Henley's interest; that the trust
deed given to respondent is void because its execution was not properly authorized by the
board of directors of Consolidated. They pray for a judgment declaring void the deed of trust
and restraining respondent from proceeding with a sale of the property thereunder.
It appears from the evidence, and the trial court so found, that on May 17, 1958, notice of a
special meeting of Consolidated to be held in New York City on May 20, 1958, at 10 a. m.,
was mailed from New York City to appellant A. L. Kendall, then one of its directors,
addressed to him at Virginia City, Nevada. A. L. Kendall was precluded from attending the
meeting because he did not receive the mailed notice thereof in Virginia City until about 10 a.
m., May 20, 1958. Consolidated's bylaws provided that [S]pecial meetings of the board of
directors may be called by the president on one day's notice by mail or personally to each
director.
During the special meeting held at the noticed time and place, Consolidated was
authorized to execute said deed of trust to respondent.
____________________

1
The notes and deed of trust appear on their face to have been duly executed by the corporation, under its
corporate seal, and signed by its president and secretary.
and place, Consolidated was authorized to execute said deed of trust to respondent. The
notice had not specified that this matter would come before the meeting, other than the
general statement in the notice that at the meeting the board of directors would consider and
act upon any other business that may properly come before the meeting.
The question presented by this appeal is whether a creditor
2
of a corporation, in an action
in which fraud was neither pleaded nor proven, may challenge the validity of resolutions of
the corporate directors, adopted at a meeting at which one of the directors who had received
no notice in accordance with the bylaws, was absent.
The lower court determined that in the absence of fraud, plaintiffs herein cannot assert an
invalid directors' meeting to nullify the notes and deed of trust executed in accordance with
the authority granted at such a meeting, and for a valuable consideration, and apparently valid
on their face.
Based on this determination the formal findings and conclusions of the trial court recite
that as to the plaintiffs herein, said deed of trust is a valid and subsisting obligation and a
valid lien and encumbrance on the property described therein. It thereupon entered judgment
that the deed of trust was valid, and ordered the dismissal of the complaint.
We believe this action of the trial court was proper, as fully supported by competent
authority, and accomplishes a just result.
In considering a question identical to that presented here, the Supreme Court of Oregon in
Marsters v. Umpqua Valley Oil Co., 49 Ore. 374, 90 P. 151, 152-3, 12 L.R.A. (N.S.) 825,
said:
It is claimed that the mortgages in suit are void because given by the corporation to and
for the benefit of one of its directors, and that all the directors did not have notice of the
meeting at which they were authorized, and that there was not a quorum present at such
meeting, exclusive of the plaintiff, who was interested and could not act.
____________________

2
Appellants sued as creditors of Consolidated, and not as either directors or shareholders on behalf of the
corporation.
at such meeting, exclusive of the plaintiff, who was interested and could not act. These
questions would be important, and deserve careful consideration, if urged by the corporation
or a stockholder; but a subsequent lien creditor can attack the mortgages on the ground of
fraud only. The rule of law which disqualifies a director from binding the corporation by a
transaction in which he has an adverse interest is for the protection of the corporation and its
stockholders, and the same is true of the provisions of law and the by-laws of the company
relative to the meeting of directors, quorums, etc. A director is an agent of the corporation. He
cannot, therefore, at the same time act for himself and his principal without full knowledge
and free assent of the principal, and, if he assumes to do so, his acts may be avoided by the
corporation or its stockholders. Such transactions, however, are not absolutely void; they are
only voidable at the instance of the corporation or a stockholder. A corporation or its
stockholders may, like an individual, elect to confirm a transaction which could have been
repudiated on the ground that the agent had an interest in the matter adverse to his principal,
or that the meeting authorizing the transaction was not regularly called or held; and, if the
transaction is acquiesced in by the corporation and its stockholders, it becomes as valid and
binding as if regularly authorized. A creditor does not, in this respect, stand in the position of
the corporation or a stockholder, and he is not entitled to exercise the rights of either. The
directors or officers of the corporation are not his agents. Nor is the provision relative to the
meeting of directors, quorum, and the like, for his benefit. His right to question a transaction
of this character, which has not been repudiated or disaffirmed by the corporation or a
stockholder, depends upon its fraudulent character, and not whether it was regularly
authorized in the first instance.
A similar conclusion was reached in the case of Lackenbach v. Finn, 26 Cal.App. 482, 147
P. 471. In that case a corporate chattel mortgage was executed pursuant to a resolution of the
board of directors which authorized such action.
authorized such action. There as here the question of fraud was not an issue. It was claimed
that the board which voted on the resolution was improperly constituted, and as a result its
action was void. The court said, 147 P. 472: It is thus seen that the rule defendant attempts to
invoke is solely for the benefit of the corporation and its stockholders, and is not available to
him as a defense. Of course, the defendant here, if regarded as standing in the shoes of
creditors of the corporation, might question the validity of the mortgage on the ground of
actual fraud.
Cases cited by appellants, apparently to the contrarysuch as Singer v. Salt Lake City
Copper Mfg. Co., 17 Utah 143, 53 P. 1024; Lycette v. Green River Gorge, 21 Wash.2d 859,
153 P.2d 873; First Nat. Bank v. Asheville Furniture & Lumber Co., 116 N.C. 827, 21 S.E.
948; and First Nat. Bank v. East Omaha Box Co., 2 Neb. (Unoff.) 820, 90 N.W. 223, for the
most part are distinguishable, because fraud, insolvency, or conveyances in defraud of
creditors were involved. In the absence of any of these elements, appellants in the capacity of
creditors of Consolidated cannot attack successfully the corporate act of its directors.
Affirmed.
____________
78 Nev. 413, 413 (1962) Quilici v. Battaglia
EUGENE QUILICI and AMOS QUILICI, Appellants, v. JOSEPH BATTAGLIA and
ORENE BATTAGLIA, His Wife, Respondents.
No. 4525
October 9, 1962 374 P.2d 887
Appeal from judgment of the Second Judicial District Court, Washoe County; Clel
Georgetta, Judge.
Action for damage resulting from rear-end automobile collision. The trial court ordered
new trial after verdict was rendered for defendants, and defendants appealed. The Supreme
Court, Thompson, J., held that granting of new trial, after jury verdict was rendered in favor
of defendants whose automobile, the fifth in line, was unable to stop without colliding with
preceding automobile, although each of preceding automobiles had been able to stop without
colliding with automobile preceding it, was not an abuse of discretion.
Judgment affirmed.
Pike & McLaughlin and William N. Dunseath, of Reno, for Appellants.
Stewart, Horton & McCune and Donald Stuart Bab, of Reno, for Respondents.
In determining whether trial court abused its discretion in ordering new trial after jury returned verdict for
defendants, evidence must be viewed in light most favorable to plaintiffs.
2. New Trial.
Granting of new trial after verdict was rendered in favor of defendants whose automobile, the fifth in line,
was unable to stop without colliding with preceding automobile, although each of preceding automobiles
had been able to stop without colliding with automobile preceding it, was not an abuse of discretion.
On review of jury verdict and judgment entered thereon, concern is whether jury's verdict has substantial
evidentiary support, but on review of trial court's action in granting new trial, concern is whether trial court
can be said to have abused its discretion in granting new trial.
4. New Trial.
New trial may be granted notwithstanding existence of substantial evidence in favor of verdict when that
verdict, in judgment of trial court, is contrary to clear weight of evidence or results in miscarriage of
justice.
OPINION
[Headnote 1]
Joseph and Orene Battaglia brought suit against Towle and the Quilicis to recover
damages resulting from a rear-end car collision. A jury returned its verdict for the defendants.
The Battaglias moved for a new trial against the defendants Quilici. Their motion was granted
upon the grounds that the verdict was against and contrary to the law and the evidence, and
that there was a manifest disregard by the jury of the instructions of the court. By this appeal
the Quilicis claim error, asserting that the trial court abused its discretion in ordering a new
trial. Whether such claim of error has merit is the sole issue presented for our determination.
Cf. Rocky Mountain Produce Trucking Company v. Johnson, 78 Nev. 44, 369 P 2d 198;
Schopper v. Kelley, 75 Nev. 520, 347 P.2d 279; Pagni v. City of Sparks, 72 Nev. 41, 293
P.2d 421; Arrowhead Freight Lines v. White, 71 Nev. 257, 287 P.2d 718; Nevada Rock &
Sand Co. v. Grich, 59 Nev. 345, 93 P.2d 513. In making such determination we must view
the evidence in the light most favorable to the plaintiffs below and respondents here. Rocky
Mountain Produce Trucking Company v. Johnson, supra.
[Headnote 2]
The evidence discloses that on a winter night five cars were traveling south in the same
traffic lane on South Virginia Street in Reno. Each was proceeding at about the same speed.
The distance between each car in line was approximately the same. The temperature was
freezing. There had been a recent snowfall and the street was icy or spotted with ice near and
about the accident scene.
about the accident scene. As the lead car approached the T-intersection of South Virginia
Street and California Avenue, it stopped suddenly. The signal light was a blinking yellow for
southbound traffic. The second car in line stopped without colliding with the lead car. The
third car, the Battaglia car, stopped without colliding with the second car. The fourth car,
driven by the defendant Towle, stopped without colliding with the Battaglia car. The fifth car,
driven by the defendant Eugene Quilici, failed to stop; it struck the rear of the Towle car,
propelling it forward and into the rear of the Battaglia car. We deem it unnecessary to extend
this opinion by a more precise and detailed recital of the facts surrounding the accident. For
the purpose of ascertaining whether the trial court abused its discretion in granting a new trial,
the brief factual picture which we have related is sufficient. It shows that each driver was
faced with about the same situation. Each, except Quilici, had his vehicle under sufficient
control to avoid bumping or colliding with the car immediately in front of him. Under such
circumstances we cannot find that the trial court abused its discretion in ordering a new trial.
Though the appellants readily acknowledge the essential facts to be as related, they insist
that the jury could properly characterize the accident as unavoidable. Our attention is directed
to the icy pavement; to the testimony that the Quilici car slid on the ice into the rear of the
Towle car. Particular emphasis is placed upon the fact that the trial court, over the objection
of plaintiffs' counsel, gave an unavoidable accident instruction.
1
We are told that the trial
court must have then believed that evidence existed to support such instruction; hence, the
jury could properly find that the accident was consistent with the exercise of ordinary care by
Eugene Quilici and that it was unavoidable; that having advised the jury, in effect, that a
defense verdict was possible under one view of the evidence, and the jury having so
decided, the court abused its discretion when it overturned the verdict and ordered a new
trial.
____________________

1
We need not determine whether the unavoidable accident instruction was appropriate. The appellants,
defendants below, contend that it was properly given; the respondents, plaintiffs below, do not agree. Case
authority is in conflict. See annot., 65 A.L.R.2d 12; comment in 33 So.Cal.L.Rev. 72; comment in 22
Mont.L.Rev. 204.
ordinary care by Eugene Quilici and that it was unavoidable; that having advised the jury, in
effect, that a defense verdict was possible under one view of the evidence, and the jury having
so decided, the court abused its discretion when it overturned the verdict and ordered a new
trial.
[Headnotes 3, 4]
Such argument fails to recognize the distinction between a review by this court of a jury
verdict and judgment entered thereon, and our review of the lower court's action in granting a
new trial. In the former case, our concern is whether the jury's verdict has substantial
evidentiary support. Heric v. Christensen, 73 Nev. 6, 306 P.2d 769, a rear-end collision case,
is an example. Without moving for a new trial, the plaintiff appealed from a judgment based
upon a verdict for the defendant. In affirming, this court mentioned, inter alia, that the jury
conceivably could have found the accident unavoidable.
2
On the other hand, when we are
asked to review the lower court's action in granting a new trial, our concern is not whether the
jury's verdict has substantial evidentiary support; rather, it is whether the trial court can be
said to have abused its discretion in granting a new trial. Pagni v. City of Sparks, 72 Nev. 41,
293 P.2d 421; Arrowhead Freight Lines v. White, 71 Nev. 257, 287 P.2d 718. It is apparent
that the governing principles on review are quite different. A new trial may be granted
notwithstanding the existence of substantial evidence in favor of the verdict when that
verdict, in the judgment of the trial court, is contrary to the clear weight of the evidence or
results in a miscarriage of justice. Arrowhead Freight Lines v. White, supra. Under the
circumstances presented, the lower court did not abuse its discretion in granting a new trial.
Affirmed.
____________________

2
Apparently no issue was raised in Heric as to whether the unavoidable accident instruction was properly
given. We have found no Nevada case directly deciding this question.
____________
78 Nev. 417, 417 (1962) Harvey v. State
ARMAND J. HARVEY, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 4487
October 12, 1962 375 P.2d 225
Judge.
Convicted, in the trial court, of grand larceny, defendant appealed. The Supreme Court,
Thompson, J., held that the court committed prejudicial error, by stating, in response to
question by jury foreman, that all that was required to be determined was whether goods were
taken without victim's knowledge or consent by defendant and value of property, after
previously properly charging that original taking and felonious intent were required to
coexist, and new trial was required notwithstanding failure of any exceptions to instructions.
Dwight B. Claar, Jr., of Las Vegas, for Appellant.
Charles E. Springer, Attorney General; John F. Mendoza, District Attorney, Clark County;
Charles L. Garner and William S. Barker, Deputy District Attorneys, for Respondent.
1. Embezzlement; False Pretenses; Larceny.
It is necessary that upon charge of larceny, false pretenses or embezzlement, state establish all elements
required for conviction under common law.
2. Larceny.
To constitute larceny there must exist in mind of perpetrator, at time of taking, specific intent
permanently to deprive owner of his property, and taking with intention to return property, or taking
without intention permanently to deprive owner of his property will not amount to larceny, even though
perpetrator, after gaining possession of property, formed that intent.
3. Larceny.
Question, in larceny prosecution, of whether property was taken with the intent of depriving owner
thereof, is one of fact the determination of which is to be made from consideration of all circumstances
preceding, attending and following taking.
4. Criminal Law.
Conflicting instructions on given subject, one correct and one erroneous, are presumed injurious unless
record clearly otherwise shows.
5. Criminal Law.
New trial is warranted if jury is misled by conflicting instructions.
6. Criminal Law.
Court committed prejudicial error in grand larceny prosecution, in response to question by jury foreman,
by stating that all that was required to be determined was whether goods were taken without victim's
knowledge or consent by defendant and value of property, after previously properly giving written charge
that original taking and felonious intent were required to coexist, and new trial was required,
notwithstanding failure of any exceptions to instructions.
7. Criminal Law.
No exception need be taken to oral instructions to preserve error therein. NRS 169.110, 175.165,
subd. 6, 175.500, 175.510-175.525.
OPINION
A jury found Harvey guilty of grand larceny. Judgment was duly entered upon the verdict
and sentence imposed. He appeals. We believe the judgment of conviction must be reversed
because of an error committed by the trial court while orally instructing the jury regarding the
elements constituting the offense of grand larceny. A brief factual recitation will suffice for
the purpose of focusing attention upon the mistake made.
Victor Havas, the complaining witness, operated a used-car business in Las Vegas. He had
inherited certain items of jewelry which were kept in his office desk. The defendant Harvey,
whom he had met previously, called at his office to either appraise the jewelry or purchase it.
Havas placed the jewelry on his office desk for examination by Harvey. After the lapse of a
few minutes, Havas departed to attend a customer. When he later returned to his office,
Harvey was gone. At that time Havas did not realize that his jewelry was also missing. He
became aware of that fact later when Harvey telephoned him advising that he, Harvey, had an
offer for the jewelry.
offer for the jewelry. Havas told Harvey to return immediately. Harvey did not return; instead,
he sold the jewelry and left Las Vegas. He was subsequently apprehended in California and
returned to Nevada to stand trial upon the charge of grand larceny.
Though Harvey did not testify at the trial, his theory of defense was clearly advanced by
his counsel during cross-examination of the state's witnesses, by the jury instructions offered
but refused, and by summation to the jury. It was that Harvey could not be convicted of the
crime charged, grand larceny, because the specific intention to deprive Havas of the jewelry
did not arise until after the telephone conversation and did not, therefore, coincide with the
original taking and possession.
[Headnotes 1-3]
Several states have, by legislative enactment, combined the common-law crimes of
larceny, false pretenses, and embezzlement into one offense under a general theft statute.
1
This legislation is designed to simplify procedure and to relieve courts from technical
questions arising from contentions that the evidence shows the commission of one of these
crimes other than that alleged in the information. Nevada is not, however, among these states.
It is necessary, therefore, that upon a charge of one of these offenses the state establish all the
elements required for a conviction under the common law. In this regard Nevada law is
settled that, to constitute larceny, there must exist in the mind of the perpetrator, at the time of
the taking, the specific intent to permanently deprive the owner of his property. A taking with
the intention of returning the property, or a taking without the intent to permanently deprive
the owner of his property, will not amount to larceny, even though the perpetrator, after
gaining possession of the property, formed that intent. State v. Clifford, 14 Nev. 72, 73
Am.Rep. 526; State v. Ward, 19 Nev. 297, 10 P. 133; Robinson v. Goldfield Merger Mines
Co.,
____________________

1
Ariz.Crim.Code, secs. 13-661 and 13-662; Calif.Pen.Code, secs. 484 and 490a; Mont.Rev.Codes, sec.
94-2701. See also V.A.M.S., sec. 556.200.
Mines Co., 46 Nev. 291, 213 P. 103. The requirement that the original taking and the
felonious intent coexist in point of time was properly mentioned in the written instructions
given in the instant case. Moreover, we recognize that the question of whether the property
was originally taken with such intent is one of fact, the determination of which is to be made
from a consideration of all the circumstances preceding, attending and following the taking of
the property. State v. Cudney, 47 Nev. 224, 218 P. 736. In the case before us there was an
arguable issue regarding the time when Harvey formed the intent to steal. Indeed, defense
counsel in summation devoted particular attention to that issue. He argued, in substance, that
though his client might be guilty of some crime, he was not guilty of larceny. Thus, when the
case was submitted to the jury for deliberation, the theory of Harvey's defense had been made
clear, and the jury had been properly instructed by the court. Had nothing further occurred our
task would be easy. However, after the jury had deliberated for some time, it returned to court
to ask a question.
The Court: Do you have a question?
Mr. Blair (Foreman): Yes. We have come to the point of we'd like a definition of
wrongful coming into possession. In other words, according to the record, we would like to
know whether wrongful possession could mean at the time the telephone call was allegedly
made * * * by the defendant to Mr. Havas, as well as in the beginning when the merchandise
was first examined in his business.
The court answered the question orally, and at length. Its answer precipitated further
questions or statements by the foreman, one of them being:
The Foreman: This entire thing is complex in whether he either stole it or embezzled it.
It is not necessary to set out in full the discourse by the court in response to questions by
the jury foreman. It comprises six pages of the transcript. It is sufficient to state that on three
separate occasions the court, inter alia, informed the jury that it was immaterial when
Harvey formed the intent to permanently deprive Havas of his jewelry.
court, inter alia, informed the jury that it was immaterial when Harvey formed the intent to
permanently deprive Havas of his jewelry. Furthermore, the court concluded with this
statement: You have to determine, plain and simple, whether at the time the jewelry was
placed on the desk, as Mr. Havas testified, you have to determine from the evidence whether
or not it was taken without his knowledge or consent by this defendant and whether it was
worth $100 or under $100, that is what you have to determine. To this statement the foreman
responded: Gee! It would have been so simple! The jury then retired, and promptly returned
a verdict finding Harvey guilty of grand larceny. The Nevada cases which we have cited,
State v. Clifford, 14 Nev. 72, 33 Am.Rep. 526; State v. Ward, 19 Nev. 297, 10 P. 133;
Robinson v. Goldfield Merger Mines Co., 46 Nev. 291, 213 P. 103, establish that the oral
instructions referred to were incorrect statements of the law. Moreover, they were in conflict
with correct written instructions previously given.
[Headnotes 4-6]
In a criminal case, conflicting instructions upon a given subject, one correct and the other
erroneous, are presumed to be injurious unless the record clearly shows otherwise. State v.
Ferguson, 9 Nev. 106; State v. Scott, 37 Nev. 412, 142 P. 1053; State v. Milosovich, 42 Nev.
263, 175 P. 139. If the jury is misled by such conflicting instructions, a new trial is warranted.
State v. McGinnis, 5 Nev. 337. The record before us reveals a perplexed jury. It could not
decide the case until its confusion regarding the onset of Harvey's criminal intent was
resolved. Upon being erroneously advised that their concern with this element of larceny was
immaterial, they promptly concluded that the defendant was guilty.
In spite of this the state contends that the error was harmless. NRS 169.110. Such
contention cannot prevail where, as here, the record affirmatively discloses a prejudice to the
defendant in respect to a substantial right.
[Headnote 7]
Finally our attention is directed to the absence of any objection to the oral instructions
given by the court or any exception thereto. Because of such failure to object or except, the
state argues that we may not consider such instructions on review. By virtue of NRS 175.515
written instructions requested, whether given or refused, or given by the court of its own
motion, need not be excepted to, and any error regarding them may be taken advantage of on
appeal. However, oral instructions are not therein referred to. Nor do the provisions of NRS
175.500, 175.510, 175.520 and 175.525 dealing with matters deemed excepted to in criminal
cases appear to include oral instructions given by the trial court.
However, NRS 175.165(6) does provide, in part: * * * and in no case shall any charge or
instructions be given to the jury otherwise than in writing, unless by the mutual consent of the
parties.
2
The statutory mandate is clear. In People v. Bonds, 1 Nev. 33, the statute was
applied, the court finding prejudicial error where consent to the oral instruction did not
affirmatively appear. See also State v. Fisher, 23 Mont. 540, 59 P. 919, annot., 115 A.L.R.
1337, where cases are collected. Notwithstanding People v. Bonds, supra, this court in the
case of State v. Clarke, 48 Nev. 134, 228 P. 582, held squarely that oral instructions, when
given without the mutual consent of the parties, are not deemed excepted to. For that reason,
the court in Clarke, declined to decide whether the trial court's comment to the jury was an
instruction and, if so, whether it violated a certain statute. Apparently the court in Clarke was
not familiar with People v. Bonds, supra, for it was not cited.
3
In any event, the conflict is
apparent.
____________________

2
The case of State v. Lewis, 59 Nev. 262, 271, 91 P.2d 820, 823, is of interest for it reflects the procedure
one trial court employed when faced with the oral instruction problem.

3
Indeed, in State v. Clarke, supra, the court based its conclusion in this regard upon State v. Clark, 36 Nev.
472, 135 P. 1083, which had been expressly overruled on rehearing. See State v. Clark, 38 Nev. 304, The
record here does not affirmatively 149 P. 185.
The record here does not affirmatively show consent by the parties to the giving of any
oral instruction. In Bonds the absence of such consent permitted appellate consideration. In
Clarke the court apparently implied consent by reason of counsel's silence, and then imposed
upon counsel the duty to object if he wished to preserve a point for later appellate review. We
deem the holding in Bonds to be correct and the holding in Clarke to be wrong. The absence
of mutual consent of the parties to an oral instruction must be considered as an objection to
the giving of such instruction. A formal objection need not be stated nor exception taken.
Manifestly, if written instructions, given after preparation and the opportunity for discussion
and deliberation by court and counsel, are to be deemed excepted to, there is even more
reason to apply the same rule to oral instructions which are sometimes given spontaneously.
State v. Clarke, supra, is overruled insofar as it is inconsistent with the views expressed
herein.
For the reasons stated, the judgment below is reversed and the cause remanded for a new
trial. The custody of Armand J. Harvey shall be transferred from the Warden of the Nevada
State Prison to the sheriff of Clark County, Nevada, to be held by the latter until and during
such new trial or further order, judgment or commitment of the trial court, unless sooner
admitted to bail.
____________
78 Nev. 424, 424 (1962) Landis v. American Potash & Chem. Corp.
DONNA M. LANDIS, Appellant, v. AMERICAN POTASH & CHEMICAL
CORPORATION, a Corporation, and A. J. CARRADO, Respondents.
No. 4451
October 25, 1962 375 P.2d 402
Marshall, Judge.
Widow of deceased employee, who died during strike, brought action against employer for
damages for the employer's alleged breach of collective bargaining agreement to maintain
group insurance. The trial court rendered judgment adverse to the widow, and she appealed.
The Supreme Court, Badt, C. J., held that the employee at time of death was not actively
engaged in work within provision of the policy that termination of employment will, for all
purposes of group life insurance, be deemed to occur when employee ceases to be actively
engaged in work.
Affirmed.
George Rudiak, of Las Vegas, for Appellant.
Morse & Graves, of Las Vegas, for Respondents.
1. Insurance.
Striking employee was not actively engaged in work within group insurance policy providing for
termination of insurance when employee ceases to be actively engaged in work at time of employee's
death during strike, and therefore employer was not liable to employee's widow for damages for alleged
breach of collective bargaining agreement to maintain group insurance.
2. Insurance.
Striking employee was not on leave of absence within group insurance policy providing that employer
may consider employees who have been granted leave of absence as employed on full-time basis for
limited period at time of his death during strike, either because employer paid premiums for three months
after strike began, or because collective bargaining agreement authorized strike, and therefore employer
was not liable to employee's widow for damages for alleged breach of collective bargaining agreement
requiring employer to maintain group insurance.
3. Labor Relations.
Fact that employer paid premiums under group insurance policy for three months after strike began was
not a waiver by employer of right to have insurance terminated because of strike, and did not render
employer liable to employee's widow for damages for alleged breach of collective bargaining agreement to
maintain group policy.
Admission of allegedly incompetent evidence did not require reversal, where case was tried to court
without jury, since court would be presumed to have relied only on admissible evidence.
5. Labor Relations.
Fact that group insurance was one of things discussed in collective bargaining agreement and was one of
things that union bargained for did not compel conclusion that agreement that insurance would be
continued during life of collective bargaining agreement obligated employer to maintain insurance in effect
during strike and did not render employer liable to widow of employee, who died during strike, for
damages on ground that employer breached collective bargaining agreement to maintain group insurance.
OPINION
This appeal requires the construction of a collective bargaining agreement entered into by
a labor union and the employer, with particular reference to the employer's agreement to
continue in effect certain group insurance, as well as the construction of the group insurance
policy itself. Both parties agree that the collective bargaining agreement and the policy of
group insurance must be considered and construed together.
All emphasis appearing in the opinion has been supplied by the court, as key words and
key phrases, whether relied upon by the respective parties or by the court's opinion, are to a
large extent determinative of the conclusions reached.
The action was brought by the widow as third-party beneficiary, appellant here, against the
employer, respondent here,
1
for damages for the employer's alleged breach of the collective
bargaining agreement to maintain the group insurance for the benefit of the plaintiff's
late husband.
____________________

1
Respondent Carrado was the employer's manager of administrative services. American Potash & Chemical
Corporation is the real respondent and will hereafter be referred to as such.
alleged breach of the collective bargaining agreement to maintain the group insurance for the
benefit of the plaintiff's late husband. The alleged breach was respondent's wrongful
termination of the group policy of life insurance, under which the widow would have been
entitled to recover a death benefit of $6,500. Respondent had terminated the group policy
when the deceased and his fellow employees had been out on strike for some three months.
Specifically, Article X of the collective bargaining agreement provided: The group
insurance plan as agreed upon for the employees covered by this agreement will be continued
during the life of this agreement. The collective bargaining agreement ran for a term of two
years from April 1, 1958, to April 1, 1960, and provided for successive extensions for
additional terms of one year. It provided that either party might reopen the agreement within
60 days prior to April 1, 1959, for the purpose of negotiating changes in straight-time hourly
rates of pay only, and that if agreement should not be reached within such 60-day period
either party might thereafter relieve itself of the obligations of the clause prohibiting strikes
and lockouts.
It was stipulated by the parties that the union called a strike on or about April 20, 1959, to
enforce its demands for changes in straight-time hourly rates of pay and that all conditions
precedent to the calling of such strike had been complied with by the union. The strike
continued until September 22, 1959. It was further agreed that during the entire period of the
strike the collective bargaining agreement remained in full force and effect.
Landis, as one of the striking employees, absented himself from work commencing April
20, 1959, performed picket duty during the strike, and intended to return to work for
respondent upon the termination thereof. He secured temporary employment elsewhere for a
period of one week.
Respondent had procured a group insurance policy under which an appropriate
certificate had been issued to Landis.
under which an appropriate certificate had been issued to Landis.
The effective date of the policy is May 16, 1956, and such certificate, with the full terms of
the policy, was in Landis's hands at the time the collective bargaining agreement was entered
into in 1958.
The policy of insurance contained the following provisions:
TERMINATION OF INSURANCE.The Employee's Group Life Insurance will
automatically terminate if his employment terminates as defined below, or if he ceases to be a
member of the classes of Employees eligible for the insurance, or if the provisions of the
Group Policy for the insurance terminate, or (should the insurance be on a contributory basis)
if he fails to make, when due, any required contribution.
Termination of employment will, for all purposes of the Employee Group Life Insurance,
be deemed to occur when an Employee ceases to be actively engaged in work on a full-time
basis with the Policyholder. However, in the case of Employees who are disabled, granted a
leave of absence, temporarily laid off, placed on a part-time employment basis or retired, the
Policyholder may, acting on a basis precluding individual selection, consider such Employees
as still employed on a full-time basis for a limited period as specified in the Employee Group
Life Insurance provisions of the Group Policy.
Upon the cover page of the certificate is printed: Should you cease active work for any
reason, contact the Policyholder at once to determine what arrangements, if any, can be made
to continue your insurance. A pamphlet entitled Your Group Insurance Plan, published by
respondent for distribution to its employees, contains the following paragraph:
TERMINATION OF INSURANCE Insurance for yourself and your dependents will
terminate if you discontinue your contributions, if your employment terminates, or if the
Group Policies terminate. * * *
From the inception of the strike, April 20, 1959, until July 20, 1959, respondent accepted
from Landis and the other striking employees their share of the insurance premiums and
paid the employer's share, thus allegedly maintaining the group insurance in force.
the other striking employees their share of the insurance premiums and paid the employer's
share, thus allegedly maintaining the group insurance in force. On July 20, 1959, however,
the employer sent the following letter to its striking employees:
To Our Striking Employees:
Since April 20 when the strike started, the Company has continued to make group
insurance coverage available to you and your eligible dependents.
For over three months the Company has continued to pay the major portion of the
premium costs of this insurance, although you have not been actively working with us since
April 20; and we have made these payments in spite of the fact that many of you have been
employed by others. Therefore, we regret that we are unable to justify further extension of
this insurance coverage for you and your dependents. This letter is to advise you that your
group coverage will terminate on July 31, 1959.
Very truly yours,
A. J. Carrado, Manager
Administrative Services
After July 31, 1959, respondent refused to accept further contributions from Landis of his
portion of the premiums and canceled the group insurance policies as of July 31, 1959.
After settlement of the strike, September 22, 1959, respondent reinstated the insurance
coverage for all striking employees who returned to work.
Appellant's claim to the insurance company was rejected on the ground that the coverage
was not in force on September 3, 1959, the date of her husband's death. This action followed,
and the court made the following findings, among others:
XII. By reason of said strike, and not otherwise, Rudy J. Landis, as a striking employee of
the Company, was absent from his employment with the Company, commencing on April 20,
1959. During said strike, Rudy J. Landis obtained temporary employment as a plumber for a
period of about one week with a plumbing contractor in Las Vegas. Said employment was
outside his usual occupation and trade as a pipefitter, and was obtained solely to
supplement his income during the period of the strike, and with the intention on his part
of returning to work for the Company when the strike terminated.
usual occupation and trade as a pipefitter, and was obtained solely to supplement his income
during the period of the strike, and with the intention on his part of returning to work for the
Company when the strike terminated. Rudy J. Landis performed picket duty during the
continuance of the strike, and up to the time of his death.
* * * * *

XX. The clause of said Group Insurance Policy Certificate entitled Termination of
Insurance' contained, inter alia, the following agreement:
Termination of employment will, for all purposes of the employee group life
insurance, be deemed to occur when an employee ceases to be actively engaged in work
on a full-time basis with the policyholder.'
* * * * *

XXII. The above agreements were understood by the Company and by the Union when
they executed the contract of insurance to be a binding and effective part of said insurance
contract.
* * * * *

XXIV. Striking employees are not actively engaged in work on a fulltime basis with the
policyholder' within the meaning of those words as expressed in the contract of Group
Insurance entered into between the Company and the Union; therefore, the deceased, when he
came to his demise on September 3, 1959, was not an active employee on a full time basis
within the meaning of the contract of insurance and the intention of the parties to that contract
as expressed therein.
XXV. By accepting premiums from its striking employees, adding its own contributions
thereto, and transmitting such premiums to the insurer during the first three months of the
strike, the Company acted fairly with its employees, did not recognize any contractual
obligation to keep the group insurance in force, and did not intend a waiver of its rights.
XXVI. The Company acted fairly and within the terms of the contract of insurance.
It entered judgment in favor of respondent, and the widow appealed.
Appellant assigns as error (1) the court's entry of such judgment; (2) its finding of the first
paragraph of the termination of insurance hereinabove quoted, and its failure to recite the
second paragraph commonly called the election clause; (3) that the other findings as
numbered above are not supported by the agreed and stipulated facts and are contrary to the
evidence and that such purported findings of facts are really conclusions of law; (4) that the
trial court erred in failing to find in accordance with the stipulated facts that the employer's
pamphlet Your Group Insurance Plan says nothing about the policy terminating in the
event of a strike or if the employee ceases to be actively engaged in work on a full-time
basis'; and (5) certain alleged errors in the admission of evidence.
The assignments of error do not present a complete picture of appellant's theory of the
case. Briefly such theory may be stated as follows: The collective bargaining agreement
obligated respondent to keep the group insurance in force for the life of the agreement. Under
the terms of the collective bargaining agreement, reserving to the union the right to strike
over the question of straight-time hourly rates of pay, it was clearly the intention of the parties
to keep the group insurance policy in force, notwithstanding the fact that the employees may
have been temporarily idled by the strike. Respondent therefore had impliedly agreed to
exercise the right of election in such a way as to keep the group insurance in effect and
therefore the employees temporarily idled by such lawful strike are on leave of absence, and
respondent was contractually bound to elect so to consider them. By accepting premiums
from the striking employees and adding its own contributions thereto and submitting same to
the insurer for the first three months of the strike, respondent recognized that the employment
relationship continued notwithstanding the strike, even though the striking employees could
not be said to be "actively engaged in work on a full-time basis."
employees could not be said to be actively engaged in work on a full-time basis. This was
an election to keep the policy in force and constituted respondent's practical construction of
the contract as obligating it so to do. Having thus elected, it would be bound by way of
waiver, even if not actually bound so to elect by the terms of the contract. The subsequent
cancellation of the group insurance therefore constituted a violation of the collective
bargaining agreement for which appellant, as the wife of the insured employee and as
beneficiary under the group insurance policy, was entitled to recover against the employer.
Lastly, it is contended that such cancellation was a willful, wrongful, malicious, and
oppressive act intended to coerce a strike settlement, thus entitling defendant to punitive
damages.
Appellant supports her argument, first, by the assertion that a strike does not interrupt the
employer-employee relationship. The authorities support this view and we may accept the
same. We may also accept the fact that the employer-employee relationship is a status which
was not destroyed by the strike.
Appellant further asserts that if we interpret the termination clause as interpreted by the
trial court, we reach an unreasonable construction, namely, that the employer's covenant to
keep the insurance in effect during the life of the collective bargaining agreement was taken
away by the termination clause.
Appellant further contends that the right to strike under the conditions recited in the
collective bargaining agreement was equivalent to a provision that when the employees were
on strike they were on leave of absence, and that under the election clause the employer was
obligated and bound to consider them as such.
She further contends that it is evident that the employer's agreement to keep the insurance
in force was inserted at the insistence of the employees, through the union, at the bargaining
table, and that this is the more evident because the insurance contract had been in force for a
long period of time before the collective bargaining agreement was executed.
We turn now to the authorities on which appellant relies. Her greatest reliance is on the
language used in Degnan v. Metropolitan Life Insurance Co., 178 Misc. 312, 34 N.Y.S.2d
238, and on Tedesco v. Turner & Seymour Mfg. Co., 19 Conn.Supp. 192, 110 A.2d 650. In
Degnan the New York court held in favor of the defendant insurance company but against the
employer. The case is not in point because it contained no clause similar to the provision
contained in the policy here, its termination clause providing only for termination of the
employee's coverage upon termination of his employment. The court held simply that the
employment of striking employees did not terminate merely by reason of the fact that they
went out on strike. As we have seen, termination of employment in the case at issue is
directly defined as occurring when an Employee ceases to be actively engaged in work on a
full-time basis with the Policyholder. As this situation was the basis of respondent's
cancellation of the insurance policy, its absence in Degnan deprives that case of value as
authority here.
In Tedesco, as in Degnan, the court denied relief against the insurance company but
granted relief against the employer. The employee had legally absented himself from work by
engaging in a strike permitted under the provisions of the collective bargaining agreement.
The employer had canceled the insurance simply because the employee was on strike. The
group insurance policy in that case provided coverage for part-time workers and full-time
workers. The court rejected the contention that the word active should be implied to
qualify the term workers upon the general ground that the parties could have expressed
such qualification in the contract if it had been their intent so to do. As in Degnan, there was
no such definition of termination of employment as is the case here.
[Headnote 1]
Other cases relied upon are likewise distinguishable. The case of Chrosniak v.
Metropolitan Life Ins. Co., 121 Misc. 453, 201 N.Y.S. 211 (affd. without op.), 209 App. Div.
846, 204 N.Y.S. 898, affords complete support for the trial court's conclusion.
trial court's conclusion. The group life insurance policy in that case provided: Upon
termination of active employment, the insurance of any discontinued employee under this
policy automatically and immediately terminates. It will be noted that the clause is not so
strong as the one we are considering, defining the termination of employment as occurring
when an employee ceases to be actively engaged in work. Again appellant distinguishes this
case because the suit was against the insurance company. However, in view of the agreement
of appellant that the terms of the insurance policy must be considered in connection with the
employment agreement, the court's holding that, as the plaintiff's husband had died while he
was still out on strike, his active employment had terminated, precluding the recovery of the
death benefits under the group life insurance policy, finds full support in Chrosniak. The case
is authority for the proposition that a striking employee is not engaged in active employment
while out on strike and, a fortiori, in the present case that he is not actively engaged in work
while out on strike. It may be noted that the dissenting justice in Degnan points out that in
Chrosniak the policy used the words active employment as naturally not including a strike
period, while in Degnan the term used was simply employment, a term broad enough to
include the employer-employee relationship existing while the employee was still on strike.
Elsey v. Prudential Insurance Company of America, 262 F.2d 432 (10th Cir. 1958) (which
involved a policy defining eligibility for insurance when an employee has completed three
months of continuous service on a full-time basis with the Policyholder), affords us a
construction of a clause virtually identical to the one herein involved. In holding that the
coverage was not in effect at the time of the insured's death, the court said, id. 435, Being
actively at work' on October 26, 1957, was a condition precedent to an effective contract as
of that date. [Citing authorities] Actively at work on full time' means actually on the job and
performing the employee's customary work.
[Headnote 2]
Appellant's final contention and the one most strenuously argued by her is that Landis,
while on strike for a lawful cause, should be considered as being on leave of absence, and
that in any event the employer's agreement to keep the insurance in force during the life of the
collective bargaining contract bound him to elect that Landis was, during such strike, on
leave of absence. This contention is closely connected with the contention that the payment
of premiums by the employer for the first three months of the strike constituted such election.
We turn, then, to the election clause upon which appellant relies.
After providing that the insurance will terminate if the employment terminates and that
such termination is deemed to occur when an employee ceases to be actively engaged in work
on a full-time basis with the employer, the provision then proceeds as follows: However, in
the case of the Employees who are * * * granted a leave of absence * * * the Policyholder
may
* * * consider such Employees as still employed on a full-time basis for a limited period as
specified in the Employee Group Life Insurance Provisions of the Group Policy.
It should be noted, first, that the election is not to grant a leave of absence but simply to
consider as still employed on a full-time basis for a limited period such employees who are
granted a leave of absence. Be that as it may, we are not persuaded by appellant's argument
that though not actively engaged in work on a full-time basis within the meaning of the
termination clause of the group insurance policy, [a striking employee is nevertheless] one
granted a leave of absence' within the meaning of the election clause immediately following
it.
Nor can we agree with appellant's argument that the provision of the collective bargaining
agreement permitting the parties under certain conditions to open up negotiations toward
changing the straight-time hourly rates of pay, and permitting under certain circumstances a
strike or lockout, must be considered an implied agreement that the employer "would treat
such authorized strike as a 'leave of absence' * * * and that it would exercise its right of
election under the terms of the policy to keep the policy in force during the period of such
authorized absence from work."
implied agreement that the employer would treat such authorized strike as a leave of
absence' * * * and that it would exercise its right of election under the terms of the policy to
keep the policy in force during the period of such authorized absence from work. No
authority is cited in support of such argument, or in support of the argument that the
definition of termination of insurance when an employee ceases to be actively engaged in
work on a full-time basis is to be construed as though it read, when an employee ceases
permanently to be actively engaged in work on a full-time basis; or in support of the
statement that the respondent must be deemed to have agreed to treat employees temporarily
idled by such strike as being on leave of absence.' * * *. These contentions simply read into
the policy of insurance words that are not there. Appellant does not even contend that an
election so made would be effective against the insurance company as resulting in actionable
coverage under the policy.
Appellant places great weight on Harlan v. Washington Nat. Ins. Co., 388 Pa. 88, 130
A.2d 140, which affirmed a death benefit under group insurance requiring the employee at the
time of his death to be a fulltime, permanent employee. The jury had found under the facts
that the deceased was at the time a full-time, permanent employee and the policy in question
provided that Temporary layoff or leave of absence shall not be considered termination of
employment for the purpose of this insurance, unless the employer shall so elect. In the
instant case there was no layoff, no leave of absence, no such election.
Appellant contends that under respondent's covenant to keep the group insurance in force
during the life of the agreement, it was bound to take all measures that it could legally take
under the so-called election clause to keep the group insurance in force. There are four
answers to this. First, it is to be noted that the permissive clause is not to grant a leave of
absence but simply, in case a leave of absence has been granted, that the employer may
consider such employees as still employed on a full-time basis for a limited period.
employed on a full-time basis for a limited period. Here the employer never granted
appellant's decedent a leave of absence. There was, then, no basis for an election by the
employer to consider the employee still employed on a full-time basis. Secondly, the election
might be made not indefinitely but for a limited period only. The period was definitely
limited in the present case, and the insurance terminated at the expiration of such period. It is
obvious that the insurance company would not and did not provide for the employer's election
to consider the insurance in effect indefinitely on an actual or implied granting of a leave of
absence. Thirdly, any election, whether express or implied, would have to be an effective
election, that is to say, an election that would be binding upon the insurance company so as to
permit a recovery directly against the insurance company upon the policy. This obviously did
not occur in the present case. When the question was put to counsel on oral argument, he
frankly and conscientiously replied that he could not say that such was the case. Fourthly, no
authorities have been cited, nor have we found any, in support of this contention.
The termination of insurance provisions are found in the group policy itself and not in
the collective bargaining agreement, but, as we have seen, both parties have agreed that the
two contracts must be considered together.
2

[Headnote 3]
Nor was the trial court compelled to find a waiver in the payment by the employer during
the first three months of the strike of its share of the insurance premiums. The court's finding
that by such action the company acted fairly with its employees, did not recognize any
contractual obligation to keep the group insurance in force, and did not intend a waiver of its
rights appears to have support in the agreed facts and the evidence.
____________________

2
Appellant says: It must be conceded that when the parties, in Paragraph X of the collective bargaining
agreement, used the words group insurance plan as agreed upon * * * will be continued for the life of this
agreement,' they were referring to the [group insurance] policy * * *.
evidence. The court was justified in inferring that such action had been fair and that the
temporary continuance of payments by the employer was voluntary and gratuitous on its part.
Appellant was given ample notice of the discontinuance of such payments, and was not
caused to change his position to his detriment in reliance on the asserted waiver. Appellant
argues that the terms of the policy giving him the right to convert to an individual policy (for
a larger premium and a diminished death benefit) was not available to him because such right
was limited to employees who had been continuously insured for a period of at least five
years. But with the termination of the group insurance the employee was always at liberty to
seek other insurance. This applied to all employees. We do not feel that this contention adds
anything to appellant's case.
[Headnote 4]
Appellant assigns error to the admission in evidence of certain documents. Even without
these documents, however, the record furnishes ample support for the court's findings. The
case was tried to the court without a jury and the admission of the evidence, even if
incompetent, would not require a reversal. The trial judge will be presumed to have relied
only upon the admissible evidence without regard to any evidence that was inadmissible.
Green v. Henderson, 66 Nev. 314, 208 P.2d 1058.
As to the assignment of error that the trial court recited in its findings only the first
paragraph of the termination of insurance provision and not the paragraph that followed
containing the election clause, we find no prejudice. The entire policy was in evidence
containing both paragraphs and, as will be noted, the election clause has had our full
consideration.
The assignment that the findings are not supported by the agreed facts and are contrary to
the evidence is, in our opinion, without merit. The same may be said of the assignment of
error that the purported findings of fact are really conclusions of law. Nor is there any
prejudicial error in the trial court's failing to find, in accordance with the stipulated facts,
that the employer's pamphlet, "Your Group Insurance Plan," "says nothing about the
policy terminating in the event of a strike or if the Employee ceases to be 'actively
engaged in work on a full-time basis.'" The termination provisions were fully within the
knowledge of the employees.
to find, in accordance with the stipulated facts, that the employer's pamphlet, Your Group
Insurance Plan, says nothing about the policy terminating in the event of a strike or if the
Employee ceases to be actively engaged in work on a full-time basis.' The termination
provisions were fully within the knowledge of the employees.
[Headnote 5]
The fact that the group insurance was one of the things discussed in the collective
bargaining agreement and was one of the things that the union bargained for does not compel
the conclusion, as urged by appellant, that the agreement that the group insurance plan as
agreed upon for the employees covered by this agreement will be continued during the life of
this agreement, considered in connection with the other clauses discussed in this opinion,
obligated the employer to maintain the insurance in effect indefinitely during a strike.
The judgment is affirmed with costs.
____________
78 Nev. 438, 438 (1962) Perrotti v. Miller
CATHERINE E. PERROTTI, Administratrix of the Estate of P. LEO PERROTTI, Deceased,
Appellant, v. RUSSELL F. MILLER, Respondent.
No. 4526
October 26, 1962 375 P.2d 409
Appeal from judgment of the Eighth Judicial District Court, Clark County; Merwyn H.
Brown, Judge.
Action to recover portion of a retainer paid to defendant's decedent for accounting services
which were not performed in full prior to decedent's death. The trial court entered judgment
for plaintiff and defendant appealed.
appealed. The Supreme Court held that evidence sustained the finding that decedent had
performed services of value of $630.
Affirmed.
Harvey Dickerson, of Las Vegas, for Appellant.
G. William Coulter and Franklin N. Smith, both of Las Vegas, for Respondent.
Money Received.
Evidence, in action to recover unearned portion of a $2,000 retainer paid to plaintiff's decedent for
accounting services to be performed by decedent, sustained finding that decedent had performed services
of the value of $630 before his death.
OPINION
Per Curiam:
Miller, respondent herein and plaintiff below, filed his complaint against Catherine E.
Perrotti as administratrix of the estate of her deceased husband, P. Leo Perrotti, alleging that
Miller had employed Perrotti, an accountant duly licensed and authorized to practice the
profession of public accountancy, to perform certain auditing and accounting services for
Miller and had paid Perrotti $2,000 as and for a retainer fee for services to be rendered by
Perrotti for Miller; that prior to rendering said services in full, Perrotti died and that as of the
day of his death he had performed services of no more than the reasonable value of $500; that
Miller's claim for return of the balance, namely, $1,500 was rejected by the administratrix.
The court rendered judgment in favor of Miller for $1,370, with interest and costs and an
attorney fee of $200. The brief of the administratrix contains no assignment of error and no
statement of the issues involved in the appeal, as required by Rule 23(2) S.C.R., cites no
authority, and merely asserts that the court's decision and judgment are contrary to the
evidence.
The court found as follows:
1. That in October, 1959, plaintiff employed one P. Leo Perrotti, a certified public
accountant, to assist him in settling an income tax dispute then pending between the Bureau
of Internal Revenue and said plaintiff.
2. That said Perrotti, while setting no definite sum for so representing the plaintiff, did
ask for a $2,500.00 payment in advance, of which sum said plaintiff paid $2,000.00.
3. That although the income tax dispute was not settled, Perrotti did spend 31 1/2 hours
working upon the matter, then died before anything further was accomplished.
4. That Perrotti's wife was appointed the administratrix of his estate.
5. That plaintiff conceded that $500.00 was a sum which he considered reasonable and
adequate for the time said Perrotti had spent upon his case, and presented a claim against the
estate for $1,500.00 to be returned, which claim was denied. That this action was then
instituted for the return of said sum.
6. That Mrs. Perrotti, as executrix, contended that the plaintiff and her husband had
agreed upon an initial payment of $5,000.00, and consequently filed herein a counterclaim for
$3,000.00. That the evidence failed to prove such an agreement to pay $5,000.00.
7. That the only evidence adduced at the trial concerning the value of Perrotti's services
was the fact that $20.00 per hour for straight auditing was considered to be a fair fee to be
charged by a certified public accountant.
8. That the 31 1/2 hours of time spent by P. Leo Perrotti at $20.00 per hour amounts to
$630.00.
A careful consideration of the record shows that these findings find ample support in the
evidence.
Judgment affirmed with costs.
____________
78 Nev. 441, 441 (1962) Palludan v. Bergin
ERIC PALLUDAN, dba FALLON MERCANTILE, Appellant, v. LEO BERGIN and
YVONNE BERGIN, Husband and Wife, Respondents.
No. 4520
October 30, 1962 375 P.2d 544
Appeal from the First Judicial District Court, Churchill County; Richard L. Waters, Jr.,
Judge.
Action for conversion of a baler. The lower court entered judgment for defendants and
plaintiff appealed. The Supreme Court, McNamee, J., held that action was barred by the
statute of limitations where it was not commenced until more than three years after alleged
unauthorized sale of the property, and fact that plaintiff further alleged that the sale was with
intent to defraud and that fraud was not discovered until two years before action was
commenced did not make commencement of the action timely by virtue of section of statute
of limitations relating to accrual of actions having their inception in fraud, as such section
does not apply to actions in conversion which are complete without allegations of fraud.
Affirmed.
Diehl & Recanzone, of Fallon, for Appellant.
Stewart, Horton & McCune and Donald Stuart Bab, of Reno, for Respondents.
1. Limitation of Actions.
A cause of action for conversion accrues and the statute of limitations thereon commences to run at time
of an unauthorized sale of the property. NRS 11.190.
2. Limitations of Actions.
Paragraph of statute of limitations pertaining to time of accrual of an action for relief on ground of fraud
relates to actions which have their inception in fraud and does not apply to an action in conversion which is
complete without an allegation of fraud. NRS 11.190 and subd. 3(d).
3. Pleading.
Words with intent to defraud appearing in conversion complaint would be rejected as surplusage, for
purposes of application of statue of limitations, such words being an unnecessary
allegation in an action for conversion.
application of statue of limitations, such words being an unnecessary allegation in an action for conversion.
NRS 11.190 and subd. 3(d); NRCP 9(b).
4. Limitation of Actions.
An action for conversion was barred by the statute of limitations where it was not commenced until more
than three years after alleged unauthorized sale of the property, and fact that plaintiff further alleged that
the sale was with intent to defraud and that fraud was not discovered until two years before action was
commenced did not make commencement of the action timely by virtue of section of statue of limitations
relating to accrual of actions having their inception in fraud, as such section does not apply to actions in
conversion which are complete without allegations of fraud. NRS 11.190 and subd. 3(d); NRCP 9(b).
OPINION
Appellant brought suit in the court below against respondents for conversion of a baler. In
charging conversion the complaint alleges:
That the defendants wrongfully, unlawfully and maliciously, with intent to defraud the
plaintiff, converted and disposed of plaintiff's one-half interest in and to the aforesaid baler by
selling the same to Lanning & Harrison, of Fallon, Nevada.
Respondents' answer pleads as an affirmative defense the statute of limitations.
In answer to written interrogatories appellant stated that he sold a one-half interest in the
baler to the respondents on June 20, 1950, and that he believed that the baler had been
converted by the defendants on or about the 15th day of June, 1959.
In respondents' motion for summary judgment the affidavit of respondent Leo Bergin in
support thereof alleges that in the year 1953 and while affiant had sole and exclusive
physical possession of said baler, your affiant sold the same to Lanning & Harrison.
Appellant's affidavit in opposition to the motion for summary judgment concedes that the
baler was sold to Lanning & Harrison in 1953, but alleges that appellant did not learn of the
sale until June of 1959.
The lower court granted respondents' summary judgment on the ground that there was no
genuine issue as to any material fact and that defendants were entitled to judgment as a matter
of law.
Appeal is from said judgment.
[Headnote 1]
It is recognized by appellant that the cause of action is one for conversion. A cause of
action for conversion accrues and the statute of limitations thereon commences to run at the
time of an unauthorized sale of the property. Culp v. Signal Van & Storage, 142 Cal. App.2d
Supp. 859, 298 P.2d 162, 164.
[Headnote 2]
Appellant claims, however, that because he alleged that the respondents converted and
disposed of appellant's interest in the baler with intent to defraud the appellant, and because
his counter affidavit in opposition to the motion for summary judgment states that plaintiff
had no reason to suspect defendants of fraudulently depriving plaintiff of his half interest in
the baler, the action should have been treated as one for fraudulent conversion, in which case
the statute of limitations by virtue of paragraph (d) of subsection 3 of NRS 11.190 did not
commence to run until 1959 when the fraud was discovered. For this reason appellant
maintains that his action commenced February 6, 1961 was timely. Said paragraph (d) relates
to actions which have their inception in fraud, and does not apply to an action in conversion
which is complete without an allegation of fraud. See Miller v. Walser, 42 Nev. 497, 181 P.
437.
[Headnote 3]
Rule 9(b) NRCP provides: In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity. Neither the allegation nor the
proof in support thereof, as hereinbefore quoted, meets the requirements of this rule. The
words with intent to defraud appearing in the conversion averment being an unnecessary
allegation in an action for conversion are rejected as surplusage.
Benson v. Eli, 16 Colo.App. 494, 66 P. 450; 89 C.J.S., Trover and Conversion, sec. 101 (2).
[Headnote 4]
In Platt v. Walker, 69 Colo. 584, 196 P. 190, where the complaint after alleging a
conversion further alleged that the wrongful taking was for the purposes of deceiving,
cheating, and defrauding the plaintiffs, the court said that the allegations of fraud were not
necessary to a recovery on the case as presented by the complaint. That would be to permit
the trial court, or plaintiffs' counsel, to abandon the case as stated, and the theory of the right
to recover as shown by the complaint, and substitute therefor a different cause of action.
Because the cause of action for conversion was barred by the statute of limitations, no
material fact was in issue and summary judgment was proper.
Affirmed.
____________
78 Nev. 444, 444 (1962) Acree v. Valley
BERT ACREE, Petitioner, v. ROBERT J. VALLEY, as the County Clerk in and for the
County of Lander, State of Nevada, respondent.
No. 4567
October 30, 1962 375 P.2d 545
Original proceeding for writ of mandate.
Proceeding to compel county clerk to prepare election ballots for election of county
commissioners at large. The Supreme Court held that 1961 amendment providing for the
election of county commissioners at large applies to all counties having less than 50,000
population regardless of fact that any county might have previously created commissioner
districts.
Petition granted.
Diehl & Recanzone, of Fallon, for Petitioner.
George G. Holden, District Attorney, Lander County, for Respondent.
Counties.
1961 amendment, providing for election of county commissioners at large, applies to all counties having
less than 50,000 population regardless of fact that any county might have previously created commissioner
districts. NRS 244.050.
OPINION
Per Curiam:
This is an original proceeding in mandamus. The petition therefor seeks to compel the
County Clerk of Lander County to cause to be prepared election ballots for the election to be
held on November 6, 1962, in Lander County, Nevada, in a manner that will enable the
qualified electors of Lander County to elect the county commissioners at large.
Prior to 1961, NRS 244.050 provided that whenever 20 percent or more of the persons
registered to vote at the last preceding general election in any county in this state having less
than 50,000 population shall petition the board of county commissioners of their county to
that effect, the county commissioners shall divide the county into three districts to be known
as commissioner districts, and that county commissioners shall thereupon be elected by the
qualified electors of the commissioner district wherein they reside.
Pursuant to such provisions the required number of registered voters in Lander County so
petitioned their board of county commissioners and the county was divided into
commissioner districts.
In 1961, the legislature amended this section to provide that county commissioners shall
be elected at large by qualified electors in the county.
It is alleged that despite such amendment the county clerk has prepared sample ballots
which are a facsimile of the ballots to be used at the general election on November 6, 1962,
which limit the election of the county commissioners to the qualified electors of the
commissioner district wherein they reside.
November 6, 1962, which limit the election of the county commissioners to the qualified
electors of the commissioner district wherein they reside.
It is respondent's contention that when the required number of voters petitioned the county
commissioners to divide the county into the three commissioner districts they did so with the
knowledge that the law provided that county commissioners would be elected by the qualified
electors in the district wherein they resided, and that after the commissioner districts had been
designated pursuant to statute, the 1961 amendment providing that county commissioners be
elected at large has no application to the election of commissioners in counties where districts
previously had been created; that to apply the said amendment here would constitute a
retrospective application which is not warranted. The 1961 amendment, however, operates
prospectively and applies only to elections subsequent to its enactment. The terms of office of
the commissioners holding office at the time of its enactment were not affected.
Nev. Const. art 4, sec. 26, authorizes the legislature, without restriction, to provide by law
for the election of the board of county commissioners in each county. Respondent does not
dispute the power of the legislature to provide for an election at large, but he maintains that
the intent of the legislature must be expressly stated and that by failure of the legislature to
state that county commissioners shall be elected at large by the qualified electors of the
county regardless of when the commissioner districts were created, there is an implication
that the amendment was not intended to apply to counties where districts had already been
created.
In our opinion, the amendment is clear and unambiguous and was meant to apply to all
counties having less than 50,000 population which theretofore had created or thereafter might
create commissioner districts as provided by NRS 244.050.
The petition is granted.
At the conclusion of oral argument the court made an order for the issuance of a
peremptory writ of mandamus requiring respondent to prepare ballots for the general election
on November 6, 1962 for the election of county commissioners at large, reserving the right to
file a written opinion later. This opinion is written pursuant to such order.
____________
78 Nev. 447, 447 (1962) Stewart and Horton Trust Account v. Autrand
STEWART and HORTON TRUST ACCOUNT, STEWART and HORTON, a Partnership as
Agents for Nevada Credit Rating Bureau, Inc., a Nevada Corporation, and NEVADA
CREDIT RATING BUREAU, INC., a Nevada Corporation, Appellants, v. ALBERT A.
AUTRAND and DESERT HILLS MOTEL, Respondents.
No. 4518
November 9, 1962 375 P.2d 750
Appeal from judgment of the First Judicial District Court, Ormsby County; Frank B.
Gregory, Judge.
An action was brought on a check on which payment had been stopped. The trial court
rendered a judgment of dismissal, and the plaintiffs appealed. The Supreme Court,
Thompson, J., held that where attorneys for corporation obtained a default judgment and, to
satisfy the judgment, requested the sheriff to sell the realty of the judgment debtor at
execution, and at the sale one of the attorneys and successful bidder heard some one in the
crowd say that be had a trust deed on realty and the judgment debtor say that he had no
interest in the realty, and the sheriff announced that the realty was sold to the successful
bidder, accepted a check from the successful bidder, endorsed it in blank, and mailed it to the
attorneys, they were holders in due course and could recover thereon after the successful
bidder stopped payment.
Stewart, Horton & McCune and Donald Stuart Bab, of Reno, for Appellants.
William J. Crowell, of Carson City, for Respondents.
Bills and Notes.
Where attorneys for corporation obtained default judgment and, to satisfy judgment, requested sheriff to
sell realty of judgment debtor at execution, and at sale one of the attorneys and successful bidder heard
some one in crowd say that he had trust deed on realty and judgment debtor say he had no interest in realty,
and sheriff announced that realty was sold to successful bidder, accepted check from successful bidder,
endorsed it in blank, and mailed it to attorneys, they were holders in due course and could recover thereon
after successful bidder stopped payment. NRS 92.031, 92.059, 92.064, 92.066.
OPINION
On June 5, 1961, Autrand drew a check on the First National Bank of Nevada for $1,200
payable to the order of the sheriff of Ormsby County. The sheriff accepted the check,
endorsed it in blank and mailed it to attorneys Stewart and Horton who, in turn, presented it
for payment. It was not paid, but was returned with the notation on the face of the check,
payment stopped. Subsequently, Stewart and Morton commenced an action upon the check
against Autrand, the maker thereof, claiming to be the holders of a negotiable instrument and
entitled to recover thereon. Autrand answered, alleging lack of consideration and fraud as
defenses and that the check was given in payment of his bid at an execution sale. Following
presentation of the plaintiffs' case in chief, Autrand moved for an involuntary dismissal under
NRCP 41 (b). His motion was granted. The trial court reasoned that an execution sale must be
for cash; a check is not cash but merely a promise to pay. Furthermore, NRS 21.160 provides
the sole remedy should a purchaser refuse to pay the amount bid by him, i.e., another sale by
the officer to the highest bidder, the reneging bidder at the first sale being liable for any loss
occasioned by his refusal to pay.
liable for any loss occasioned by his refusal to pay. This appeal is from the judgment of
dismissal thus entered.
1. The parties' contentions. In seeking a reversal of the judgment, Stewart and Horton
direct our attention to the nature of the action, a suit by them as the holders of a negotiable
instrument. They contend that there is no infirmity in the instrument, nor any defect in the
title of the sheriff who negotiated it; that they are not only the holders thereof, but holders in
due course. Additionally, they argue that the alleged defenses of fraud and lack of
consideration are not made out in the evidence. Finally, they complain of the lower court's
view that the sole remedy available to them is to request another sale by the sheriff. The
respondent Autrand insists that the dismissal below was properly granted because the record
establishes that Stewart and Horton were not holders in due course; that the alleged defenses
of fraud and lack of consideration were established; and that, in any event, NRS 21.160
designates the only remedy available to a judgment creditor in the circumstances. In
discussing these contentions we initially mention that, on review of a dismissal judgment
entered at the close of the plaintiffs' case, we must view the record in a light most favorable to
appellants, the plaintiffs below. Gordon v. Cal-Neva Lodge, Inc., 71 Nev. 336, 291 P.2d
1054; Corn v. French, 71 Nev. 280, 289 P.2d 173.
2. There is no evidence of fraud, or the lack or failure of consideration. The record
discloses that Stewart and Horton, as attorneys for Nevada Credit Rating Bureau, Inc.,
obtained a default judgment against Cloy C. Hillman and another for the approximate amount
of $3,000. Seeking to satisfy that judgment the attorneys requested the sheriff of Ormsby
County to sell at execution sale Hillman's interest in certain real property in Ormsby County.
The Ormsby County assessor had furnished the attorneys a legal description of the Hillman
property to enable accurate preparation of the notice of sale. On the day of the sale and just
before bids were requested, one of the persons present stated that he held a deed of trust on
the property; another said that he no longer owned the property.
held a deed of trust on the property; another said that he no longer owned the property. The
statements were overheard by attorney Stewart and, presumably, also by Autrand who was
nearby. Stewart did not then know the people who made the statements. He subsequently
learned that the individual who said that he no longer owned the property was the judgment
debtor Hillman. The sale was conducted, both Stewart and Autrand bidding. The sheriff
struck off the property to Autrand who submitted the highest bid of $1,200. He gave a check
for that amount, as hereinbefore related, and subsequently notified the bank not to honor it
when presented for payment. No representation as to the judgment debtor's interest in the
property was made by attorney Stewart to Autrand, nor was information concealed. If either
of them harbored a doubt as to the judgment debtor's interest, it came about as the result of
the statements made by persons then unknown and uttered just before the sale was conducted.
Autrand argues that, under such circumstances, Stewart and Horton could not have acted
in good faith in accepting the check from the sheriff, and were not holders in due course.
Furthermore, he urges that fraud of a nature providing a defense against an endorsee of a
negotiable instrument was established. There is no evidence in the record to support such a
charge. To the contrary, the evidence establishes that attorney Stewart, acting upon the county
assessor's representation as to Hillman's title, caused the sale to occur; that he acted in good
faith throughout. Indeed, Autrand never testified, presumably because the motion for
involuntary dismissal was made and granted before the defense was to put on its case. Hence,
the record does not tell us why he stopped payment on the check. We will not speculate as to
this. Nor will we guess as to the judgment debtor's interest in the property. The posture of this
case on review compels us to infer that the judgment debtor had an interest which was subject
to sale upon execution.
to sale upon execution. The assessment roll so indicated.
1
Therefore, we are not impressed
with Autrand's contention, based only upon an inference favorable to him, that he stopped
payment because the judgment debtor had no property interest to convey. Nor do we decide
whether he was at liberty to stop payment without incurring liability to one holding his check,
had such proof been produced.
It is clear to us that the check was complete and regular on its face; that Stewart and
Horton received it in good faith; that they are presumed to have given value for it, NRS
92.031; that the check was not infirm, nor was the title of the sheriff thereto defective; hence,
upon the record before us, admitting the truth of their evidence, they are holders in due course
of that instrument. NRS 92.059. As indicated, there is nothing in the record to support
Autrand's averred defense of fraud. As to the assertion that there was either an absence or a
failure of consideration, again we detect nothing in the evidence to support such claim. The
consideration for Autrand's promise to pay for the property, given in the form of a check, was
the sheriff's promise to convey the debtor's interest, made when he struck off the property to
Autrand as the highest bidder. An executory contract was then made. Dazet v. Landry, 21
Nev. 291, 30 P. 1064; cases collected in 11 A.L.R. 543. The reciprocal promises constituted
the consideration. Nor did the consideration subsequently fail. The patent reason for the
sheriff's failure to convey the debtor's property interest to Autrand, was Autrand's prior
repudiation of the executory contract; his direction to the bank not to honor the check which
he had given for the property. In any event, the absence or failure of consideration, if
established, would not be a defense as against a holder in due course. NRS 92.035; Gross v.
Lamme, 77 Nev. 200, 361 P.2d 114; Allen v. Hernon, 74 Nev. 23S
____________________

1
Accordingly, we are not concerned on this appeal with ramifications of caveat emptor as applied to a
purchaser at execution sale who bids for property in which the judgment debtor has no interest. See comment in
35 Georgetown Law Journal 376.
v. Lamme, 77 Nev. 200, 361 P.2d 114; Allen v. Hernon, 74 Nev. 238, 328 P.2d 301.
Finally, the knowledge of attorney Stewart that the check had been executed in exchange
for an executory promise to convey did not affect the negotiability of the check nor place him
under a duty to inquire whether the conveyance had or had not been made. Britton, Bills &
Notes, p. 450 (1943). His status as a holder in due course (and the status of his law partner
Horton) was secure in the absence of knowledge prior to their acceptance of the check, of a
breach of the executory contract by either party thereto. See Prentice v. First National Bank of
Roff, 101 Okla. 232, 224 P. 963; cf. Drukker v. Howe & Haun Invest. Co., 136 Cal.App. 437,
29 P.2d 289; cases collected in 100 A.L.R. 1357. The record does not disclose such
knowledge on their part.
3. The remedy of resale provided by the execution statute does not preclude suit upon a
negotiable instrument by a holder in due course. The lower court based its judgment of
dismissal upon the grounds that Autrand did not pay cash upon acceptance of his bid and that
NRS 21.160 provides the sole remedy available to the judgment creditor, or his agent, in the
circumstances here present, namely, another sale by the officer, in which event Autrand, as
the reneging bidder at the first sale, would be responsible only for the loss occasioned by the
repudiation of his promise to pay. The authorities cited to support this position do not involve
the delivery to the officer of a negotiable instrument in payment of the bid and, for that
reason, are not in point. See Dazet v. Landry, 21 Nev. 291, 30 P. 1064; Sweeney v.
Hawthorne, 6 Nev. 129; Bell v. Redwine, 98 Cal.App. 784, 277 P. 1050. NRS 21.160 should
not be construed to preclude suit by a holder in due course upon a negotiable instrument
given by a purchaser at execution sale. Rights in addition to those provided by that statute
come into being when a negotiable instrument is used to pay the amount bid.
2
Though not
on "all fours" factually, the following cases involving the delivery of a check by the high
bidder in payment of his bid, support this view.
____________________

2
NRS 92.064 provides: A holder in due course holds the instrument free from any defect of title of prior
parties, and free from defenses available to prior parties among themselves, and may enforce payment of the
instrument for the full amount thereof against all parties liable thereon.
Though not on all fours factually, the following cases involving the delivery of a check by
the high bidder in payment of his bid, support this view. Sutton v. Baldwin, 146 Ind. 361, 45
N.E. 518; Meherin v. Saunders, 131 Cal. 681, 63 P. 1084, 54 L.R.A. 272. The free circulation
of negotiable paper is to be encouraged. Our daily business is primarily carried on by its use.
We are certain that this is true, as well, in the conduct of execution sales. Though the officer
and judgment creditor may insist that the high bidder pay in cash, and not by check, Dazet v.
Landry, supra, it is likewise true that they may waive their right to receive cash in hand and
accept the bidder's check in lieu thereof. Meherin v. Saunders, supra; Sutton v. Baldwin,
supra; Cramer v. Oppenstein, 16 Colo. 504, 27 P. 716; cf. Metz v. Hicklin, 126 Kan. 516, 268
P. 823. This was done in the case at bar, with the resulting consequences provided for by the
Negotiable Instruments Law.
We conclude that the judgment below must be reversed and the cause remanded for new
trial.
McNamee, J., concurring:
I concur in the result.
Appellants recovered judgment against Hillman and another. To satisfy said judgment they
levied upon land in Ormsby County purportedly owned by Hillman. At the execution sale of
said land it was announced in the presence of respondent Autrand by Hillman that he did not
own the land and it otherwise came to the attention of the bidders that there was some doubt
as to the title thereto. Nevertheless, Autrand made the highest bid therefor in the sum of
$1,200 and the sheriff announced that the land was sold to him for said sum. The sheriff
accepted at that time from respondents their check in the sum of $1,200 which he endorsed in
blank and mailed to appellants in partial satisfaction of their judgment. The check was
dishonored upon presentation for payment, because respondents had stopped payment, and
this suit on the check was thereupon commenced against respondents.
In their answer to the complaint respondents denied that there was any consideration for
the check and alleged fraud as an affirmative defense.
The only affirmative allegations of respondents pertaining to their defenses of lack of
consideration and fraud consist of the averments that the check was given by them in payment
of their bid at an execution sale of certain real property which, at the time of the sale, was
encumbered by a deed of trust and in which property the judgment debtor had no interest
subject to sale, and that therefore when they made the highest bid and gave their check to the
sheriff in the amount thereof they could receive no interest in the property by a subsequent
delivery of a certificate of sale or sheriff's deed. The fraud consists of allegations that
appellants by fraudulent representations induced respondents to make the highest bid.
The evidence presented by appellants consisted of the testimony of the sheriff who
identified the check and related that he received it from Autrand and endorsed and delivered
it to appellants in connection with the sale of the property in question. Appellant Stewart
testified that he received the check and that it was not paid upon presentment; that he knew
the check was given by respondent Autrand to the sheriff at the time of the sale of the
property to Autrand; that at the sale both he and Autrand were bidding; that the county
assessor had told him that Cloy C. Hillman, the judgment debtor, was the owner, but that he
had not otherwise checked the title of the property prior to the sale; that he heard a man
named Kolb state to the general crowd at the time of the sale that I hold a trust deed to this
property, that Hillman stated at that time, I don't even own the property, to which Stewart
replied, Well, we'll see; that thereupon the bidding took place and after several bids the
property was sold to Autrand; and that Stewart left immediately after the sale and did not see
the delivery of the check to the sheriff.
Upon such evidence, the appellants rested, and the lower court granted respondents'
motion for an involuntary dismissal of the action. The record discloses that the order of
dismissal was not based upon the defenses of either fraud or lack of consideration as
specifically alleged.
specifically alleged. Indeed it could not have been, because the evidence to no extent
supported said specific allegations. The court based its decision upon the ground that the
sheriff in accepting a check in lieu of cash contrary to law, which check was later dishonored,
had as his sole remedy that provided by NRS 21.160, to wit, a proceeding against Autrand to
recover any loss which might result from a resale of the property; that appellants took the
check with knowledge of the sheriff's sole remedy and that, therefore, they were not entitled
to recover on the check in an action against respondents, the makers thereof. It is to be noted
that the lower court, in deciding that NRS 21.160 provides the sole remedy available to the
sheriff when a purchaser refuses to pay the amount of his bid, is silent as to the rights, if any,
of the judgment creditor under such circumstances, as distinguished from the sheriff, and
particularly of a judgment creditor in the position of the appellants who have received from
the highest bidder, through the sheriff as intermediary, a negotiable instrument for the amount
bid. Whether the provisions of NRS 21.160 would constitute a defense to the check if
properly pleaded is a question which, because of the present state of the record, should not
now concern this court.
The action of the lower court in dismissing the complaint based upon a defense outside the
pleadings was erroneous even though it resulted from respondents' motion to dismiss, because
appellants being holders of a negotiable instrument valid on its face are deemed prima facie
to be holders in due course. NRS 92.066. If in fact they are holders in due course, they would
be entitled to recover on the instrument. Respondents have not yet had the opportunity to
present evidence in support of their defenses of fraud and lack of consideration as alleged
which they are entitled to do in order to attempt to rebut said presumption contained in NRS
92.066. A new trial, therefore, must be ordered. Respondents thereupon would be afforded an
opportunity to amend their answer, if they so desire, so as to plead any further defense which
might be available to them under NRS 21.160.
Badt C. J., concurring:
I concur in the conclusions reached by both my associates.
In my opinion, however, this appeal presents the single question whether the facts within
the knowledge and the facts with whose knowledge they are charged destroy the position of
appellants as holders in due course without knowledge of infirmities.
Mr. Stewart knew or was charged with the knowledge of the following matters: that an
attendant at the sale (later identified as one Kolb) claimed to have a trust deed upon the
property offered for sale; that another attending the sale (later identified as the judgment
debtor Hillman) disclaimed any interest in the property; that Autrand was present and heard
these declarations and that Stewart knew that Autrand had heard them; that under the system
of assessments of real property in this state the assessor must close his books for a period of
time before making up his assessment roll, with the result that there is an interim period
during which transfers of real estate on the books of the county recorder are not reflected in
the assessment rolls; that Stewart and Autrand kept making respective bids until Autrand had
made his final high bid of $1,200; that the sheriff (except possibly in the absence of waiver)
was authorized to receive from Autrand, the successful bidder, cash and only cash (Dazet v.
Landry, 21 Nev. 291, 30 P. 1064); that Autrand gave the sheriff his check on the bank,
payable to the sheriff; that the transaction was consummated only if and when the check was
paid by the bank; that Autrand (apparently having discovered the complete absence of title in
the judgment debtor) defaulted in his bid by stopping payment on the check; that upon such
default it was the duty of the sheriff to again sell the property to the highest bidder after again
giving the statutory notice; that the sheriff was then authorized to recover the amount of the
loss, with costs, for the benefit of the party aggrieved, by motion heard in a summary manner
{Sweeney v. Hawthorne, 6 Nev. 129
summary manner (Sweeney v. Hawthorne, 6 Nev. 129, Combined Vol. 567 Nev.
466).
However, respondent has been unable to submit a single authority to the court, nor has the
court's independent research brought one to light, in which circumstances such as those
recited have been held to constitute an infirmity in the paper such as to deprive appellants of
their presumed status as holders in due course. Thus we are compelled to hold that the order
for involuntary dismissal was error, and that the case must be retried, with opportunity to the
defendant to prove his asserted defenses.
____________
78 Nev. 457, 457 (1962) Young Elec. Sign Co. v. Hotel Last Frontier
YOUNG ELECTRIC SIGN COMPANY, a Corporation, Appellant, v. HOTEL LAST
FRONTIER CORPORATION, a Corporation, Respondent.
No. 4532
November 15, 1962 375 P.2d 859
Appeal from the Eighth Judicial District Court, Clark County; William P. Compton,
Judge.
An action was brought on agreement whereby the plaintiff leased certain electric signs to
defendant at agreed monthly rental of $500, and the defendant filed an answer with an
affirmative defense that original lease agreement had been modified to provide for monthly
rental of only $250. The trial court rendered a judgment adverse to the plaintiff, and the
plaintiff appealed. The Supreme Court, Badt, C. J., held that the answer sufficiently alleged
affirmative defense that original agreement was modified to reduce monthly payments to
$250, and that evidence sustained finding that the original agreement was so modified.
Affirmed.
[Rehearing denied November 28, 1962] Samuel S.
Samuel S. Lionel and E. M. Gunderson, of Las Vegas, for Appellant.
G. William Coulthard and Franklin N. Smith, of Las Vegas, for Respondent.
1. Bailment.
Answer of defendant, which was sued to recover amount due under agreement to pay plaintiff monthly
rental of $500 for electric signs, was sufficient to allege affirmative defense that original agreement was
modified to require defendant to pay only monthly rental of $250. NRCP 8(b), 15(b).
2. Bailment.
Evidence sustained finding that defendant, which was sued to recover amount due under agreement to
pay plaintiff monthly rental of $500 for signs, and plaintiff entered into agreement to modify original
agreement to reduce monthly rental to $250.
It is not function of Supreme Court on appeal to say that trial court believed wrong witness.
OPINION
This appeal presents but two issues for our determination. The first has to do with the
pleadings, and the second deals with the sufficiency of the evidence to support the findings.
(1) The parties will be referred to as they were in the court below. Plaintiff, Young Electric
Sign Company, appellant here, alleged simply in its complaint that on or about April 3,
1957, plaintiff leased certain electric signs to defendant at the agreed monthly rental of $500
per month commencing as of March 18, 1957, and that by reason of the said agreement
defendant owes plaintiff the sum of $3,750, with interest from January 1, 1959.
Defendant's answer, following its general denial, contained an affirmative defense,
alleging that on or about March 14, 1955, New Frontier Hotel, Inc., a corporation, had leased
the signs in question from plaintiff; that on or about March 17, 1957, New Frontier Hotel,
Inc., vacated the real property which it was leasing from the defendant, leaving the
aforementioned signs thereon; that on or about April 3, 1957, the defendant had agreed
to pay to plaintiff the sum of $500 per month until such time as defendant had found a
new tenant for its hotel property; but that on or about October 1, 1957, the parties had
modified their original agreement by another to the effect "that plaintiff would receive,
and that defendant would pay the sum of $250 per month, plus panel changes until such
time as defendant did lease its property to a new tenant."
that on or about March 17, 1957, New Frontier Hotel, Inc., vacated the real property which it
was leasing from the defendant, leaving the aforementioned signs thereon; that on or about
April 3, 1957, the defendant had agreed to pay to plaintiff the sum of $500 per month until
such time as defendant had found a new tenant for its hotel property; but that on or about
October 1, 1957, the parties had modified their original agreement by another to the effect
that plaintiff would receive, and that defendant would pay the sum of $250 per month, plus
panel changes until such time as defendant did lease its property to a new tenant. It further
alleged that under such modifying contract it had paid plaintiff the sum of $250 on December
16, 1957 for November, 1957 rentals; $250 on March 6, 1958 for December, 1957 rentals;
$250 on April 15, 1958 for January, 1958 rentals; $500 on July 1, 1958 for February and
March, 1958 rentals; $500 on July 21, 1958 for April and May, 1958 rentals; and $1,814.50
on January 7, 1959 for rentals for June through December, 1958, inclusive, together with a
complete schedule indicating such payment as payment in full on account of all obligations
for rentals, plus panel changes, all of which were accepted by plaintiff. This was followed by
the allegation that plaintiff by accepting the benefits of such payments should be estopped to
deny that they were contrary to the modification agreement, and further that the acceptance of
such payments constituted an accord and satisfaction.
Appellant asserts that the affirmative defense does not plead a modification of the original
agreement but merely the defenses of estoppel and accord and satisfaction, further that the
trial court erred in finding a modification because that issue was not within the pleadings. We
do not agree. The defendant's pleading fairly apprised plaintiff of three defenses: estoppel,
accord and satisfaction, and modification.
The lower court accorded no virtue or merit to the plea of estoppel or accord and
satisfaction, and this court, for the purposes of this appeal, may simply regard the same as
surplusage.
[Headnote 1]
We find, then, ignoring the plea of estoppel and of accord and satisfaction, a satisfactory
compliance of NRCP, Rule 8(b) requiring a party to state in short and plain terms his
defenses to the claim asserted. It seems clear that plaintiff was fully apprised of the nature of
the defense pleaded. lA Barron & Holtzoff, Federal Practice and Procedure, Sec. 277 (Rules
ed. 1960); 2 Moore, Federal Practice, Par. 8.20 (2d ed. 1960). The case was tried on such
issue. This is the more evident from the transcript of the testimony which shows that only two
witnesses testified, one on behalf of each party, and that virtually the sole subject of their
testimony was the question whether the modifying agreement had been entered into and, if so,
what the terms thereof were and what was the consideration therefor. NRCP, Rule 15(b);
Whiteman v. Brandis, 78 Nev. 320, 372 P.2d 468; United Tungsten Corp. v. Corporation
Service, Inc., 76 Nev. 329, 353 P.2d 452. Appellant's first assignment of error attacking the
sufficiency of the pleading of the first affirmative defense is without merit.
(2) We turn, then, to appellant's assignment, which, though differently worded, is to the
effect that the evidence is insufficient to support the court's findings, and particularly its
findings Nos. 4 and 7. These were as follows:
4. That the parties did thereafter orally agree to modify the terms of the said agreement
by reducing defendant's payments thereunder to $250 per month, plus service charges.
* * * * *

7. That defendant paid to plaintiff all sums required to be paid by defendant under the
said agreement prior to its modification and after it was modified.
In its oral opinion from the bench the court stated:
Now, the defendant's evidence is to the effect that the payments were reduced from five
hundred dollars ($500.00), which included service charges, to the sum of two hundred and
fifty dollars ($250.00), plus service charges. I am convinced that this is the situation.
Appellant frankly contends: Upon the proper assessment of the net legal value of Mr.
Friedman's testimony [defendant's witness] taken together with the other evidence in the
record, this appeal must turn. Appellant then bitterly attacks the testimony of defendant's
witness. Discrepancies and contradictions do indeed appear, but we cannot agree that these
rendered the witness's testimony incredible. The trial court did not find it so. His testimony
and the testimony of plaintiff's witness Cannon were in direct conflict both as to the times of
the conversations referred to and the purport of such conversations. As brief examples of such
conflict, Mr. Cannon testified that the only modification agreed to was that defendant might
reduce the monthly $500 payments under the original agreement to $250 only for the winter
months of November, December, and January. The trial court rejected such contention
because plaintiff had continued without protest to accept the $250 monthly payments from
the time they first started in November, 1957 until plaintiff's first protesting letter in
September, 1958, a date long past the slow months of November and December, 1957 and
January, 1958, which plaintiff contends were the only months to which the reduction applied.
In December, 1957 plaintiff wrote a letter confirming the agreement to accept monthly
payments of $300. As to this sum Friedman explained that it was a misconception, as it was
to include servicing and the panel changes, while the agreement was for $250 plus the panel
changes. Cannon too explained the discrepancy. He said that it was a typographical error and
should have read $500. As to this item, the trial court said:
Now, if it were a typographical error it would appear to the Court that there would have
been no necessity of the letter in the first place because there was already a letter under which
they had been operating up to the alleged modification which specifically spelled out the sum
of five hundred dollars ($500.00) per month. This was a logical comment.
Mr. Cannon testified: We billed them [Last Frontier] each month * * * and we sent them
a statement for the amount due for that month and any past due amount."
due amount. And later: We expected what we billed for, and what we sued for, the full
amount. (Emphasis added.) Appellant complains that respondent did not produce the
monthly bills, but appellant neither demanded their production, nor did it seek to offer copies.
Friedman's testimony was corroborated by all the checks to which he had testified, together
with the accompanying vouchers specifying particularly the items in payment of which the
checks were issued.
[Headnote 2]
The record is replete with further instances in which the testimony of Friedman and the
testimony of Cannon were diametrically opposed. The trial court was compelled to accept the
testimony of Friedman or the testimony of Cannon. It chose to accept that of Friedman,
supported as it was by defendant's canceled checks, vouchers, and other documentary
evidence. Appellant's contention that the evidence does not support the findings is without
merit.
Appellant further insists that it factually appears that there was no consideration for the
reduction in rent.
Friedman testified as follows:
Q. Was there any further discussion as to the period of time that this [reduction to $250]
would continue?
A. I told Mr. Cannon that several prospective lessees were in the process of negotiating
lease contracts with the Hotel Last Frontier Corporation and that as a consideration of his
company for his indulgence during the times that we would ask[
1
] the new prospective
lessee to assume the contracts, the balance of the contracts, due the Young Electric Sign
Company by the New Frontier Hotel Corporation.
____________________

1
Later Friedman used the word obligate. It developed that the new lessee, Frontier Properties, Inc., did not
assume the obligation of New Frontier Operating Company or any other obligation with reference to rental of the
sign, but bought the sign from appellant for $12,000. Whether or not this was the result of Hotel Last Frontier
Corporation's intercession does not appear. The trial court was not called on to decide that question. Plaintiff's
suit was not commenced for the asserted breach of Last Frontier's obligation to ask or obligate the new
lessee to assume the obligation.
Q. Did Mr. Cannon say anything after that?
A. He agreed to this arrangement.
[Headnote 3]
Mr. Cannon denied this statement, but, as noted, the court accepted Mr. Friedman's
testimony. Corroborated as it is by the exhibits, it is not our function to say that the trial court
believed the wrong witness.
Appellant seems to contend that the lack of consideration grows out of the fact that the
new lessee, Frontier Properties, Inc., did not assume the original contract. Such agreement
was not the consideration involved herein. The consideration was Hotel Last Frontier
Corporation's promise that it would seek to obtain such assumption. That it did so is apparent
from its letter of January 7, 1959, to appellant and appellant's reply of February 23, 1959,
admitting knowledge of the lease negotiations in which Frontier Properties was engaged
wherein Young Electric Sign Company sign contracts were to be assumed by the lessee. In
consideration of the fact that you were willing to help us, we agreed to these reduced monthly
payments.
The same grounds of appeal are urged with reference to the court's denial of sundry
motions made after judgment. They do not require further discussion.
Affirmed with costs.
____________
78 Nev. 463, 463 (1962) Walker v. State
JOSEPH MILES WALKER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 4476
November 19, 1962 376 P.2d 137
Defendant was convicted in the trial court of murder in the first degree, and he appealed.
The Supreme Court, McNamee, J., held that prosecutor's opening remark that defendant was
apprehended at state penitentiary of a sister state was improper in that it connoted
commission of an offense by defendant other than the one for which he was being tried,
but making of the statement was not prejudicial where place of apprehension was
contained in defendant's written confession and mentioned by him in his oral testimony.
that defendant was apprehended at state penitentiary of a sister state was improper in that it
connoted commission of an offense by defendant other than the one for which he was being
tried, but making of the statement was not prejudicial where place of apprehension was
contained in defendant's written confession and mentioned by him in his oral testimony.
Affirmed.
[Rehearing denied December 11, 1962]
Thompson, J., dissented.
John Squire Drendel, of Reno, for Appellant.
Charles E. Springer Attorney General, and William J. Raggio, District Attorney, Washoe
County, for Respondent.
1. Criminal Law.
Prosecutor's opening remark that defendant was apprehended at state penitentiary of a sister state was
improper, but making of the statement was not prejudicial where place of apprehension was contained in
defendant's written confession and mentioned by him in his oral testimony. NRS 169.110.
2. Criminal Law.
Although in view of lack of connection it was error for prosecuting attorney to ask a prosecution witness
on direct examination as to whether based on his experience as a deputy warden at a state penitentiary he
could state incidence of homosexuality with the inmate population, error did not justify, a reversal where an
objection thereto was sustained and court instructed the jury to disregard the question, and defendant did
not move for a mistrial. NRS 169.110.
3. Criminal Law; Witnesses.
Cross-examination of defendant as to whether he had been dishonorably discharged from the army was
proper for impeachment, where defendant had testified on direct examination that he had used another
name when he re-enlisted in the army and that he did not know of any reason why he had done so, and in
any event, no prejudice resulted from such cross-examination in view of fact an objection to the question
was sustained. NRS 169.110.
4. Criminal Law.
Defendant was entitled to have produced a written report made by a police officer in regard to his
examination of pickup camper of victim of alleged murder where he testified to the making of such report
on cross-examination, but refusal of motion for production of the report was not prejudicial error in view of
photographic evidence and other testimony. NRS 169.110.
5. Criminal Law.
The word car, as used in statute providing that when an offense is committed in the state on a railroad
train or car jurisdiction is in any county through which the train or car has passed in the course of its trip,
does not include a private motor vehicle, and therefore giving of instruction that a certain motor vehicle
involved in a homicide prosecution was a car within meaning of an instruction based on statute was error.
NRS 171.040 and subd. 2.
6. Criminal Law.
Venue of a prosecution for murder could properly be laid in Washoe County when the killing was
admittedly committed by defendant and the acts resulting in the death could have occurred in two or more
counties, one of which was Washoe County. NRS 171.030; Const. art. 6. sec. 6.
7. Criminal Law.
Defendant, in prosecution for murder, did not have a constitutional right to be tried in any particular
county, and therefore giving of an improper instruction pertaining to venue would not be considered
prejudicial where it appeared with no evidence to the contrary that the crime was committed in the state
and venue could properly have been laid in county in which the prosecution was brought.
8. Homicide.
Giving of instruction in murder prosecution, that if homicide took place in the perpetration of or attempt
to perpetrate robbery or burglary it would be murder in the first degree was not error where there was
evidence which would have warranted a finding that the killing took place while defendant was engaged in
the act of robbery or in an attempt to rob. NRS 200.030.
9. Criminal Law.
Mere fact that a defendant was under restraint at time a confession was given did not in itself make the
confession involuntary.
10. Criminal Law.
Evidence sustained finding that confession was given voluntarily, although taken while defendant was a
prisoner in a state penitentiary.
OPINION
Appeal is from the judgment based upon a jury verdict finding the appellant guilty of
murder in the first degree and fixing the penalty at death. Appellant also appeals from the
order denying a new trial.
On September 19, 1960, while one Paul Allison was driving a pickup truck outfitted with a
camper on the rear through Elko, Nevada, he picked up appellant who was hitchhiking.
rear through Elko, Nevada, he picked up appellant who was hitchhiking. They stopped at
Carlin, Nevada, and purchased some food and a fifth of gin. Thereafter, they stopped at
Lovelock, Pershing County, for some gasoline. They then drove three or four miles west of
Lovelock where they parked for a time and then drove back into Lovelock to purchase more
liquor. Thereafter, they drove quite a way, eight or nine miles, maybe ten, beyond where
they had first parked. According to the testimony of appellant, when he and Allison stopped
the second time they continued drinking, and a fight ensued during which Allison was
stabbed. Allison was found dead in the pickup camper in a parking lot in Reno, Washoe
County, Nevada, on September 24, 1960. Appellant was apprehended several months later in
Oklahoma where he was in prison.
Appellant specifies nine errors:
[Headnote 1]
1. In his opening remarks to the jury the district attorney, over the objection of appellant,
was permitted to state that appellant was apprehended at the Oklahoma State Penitentiary in
McAlester, Oklahoma.
This statement was improper because it connotes the commission of an offense by
appellant other than the one for which he was being tried. The objection, therefore, should
have been sustained. State v. Lindsay, 63 Nev. 40, 161 P.2d 351.
The appellant, however, was not prejudiced by this opening remark because the place of
apprehension was contained in appellant's written confession and mentioned by him in his
oral testimony.
2. During the direct examination of prosecution witness Gladden, the district attorney
asked: Now, based on your experience as a deputy warden at the Oklahoma State
Penitentiary, and your some eight years' experience altogether at the prison, and based on
your close contact with the inmate personnel, can you state the incidence of homosexuality
with the inmate population?
Appellant's counsel objected to the question and moved that it be stricken from the record.
The district attorney maintained that the question was relevant to motive, saying: One of
the theories of the State's case will be that, in addition to robbery, this was a homicide in the
perpetration of a homosexual act. However, when questioned by the court, he admitted that
he did not intend to show that Gladden had any knowledge of the appellant in this respect.
[Headnote 2]
The district attorney erred in asking the question, but no intentional misconduct appears as
would justify a reversal on that ground. People v. Doetschman, 69 Cal.App.2d 486, 159 P.2d
418.
The court sustained the objection and stated to the jury: The Court instructs you that
under all the facts and circumstances of this case, and the state of the evidence to date, this is
an improper question. The Court has sustained an objection to it. I ask you to completely
disregard it, wipe it out of your minds, and let it have no more effect upon you than if this
question had never been asked.
Appellant did not move for a mistrial. As heretofore stated, he objected to the question and
moved that it be stricken. The court's action was in exact compliance with appellant's request
and, consequently, he cannot complain of the court's ruling in this regard. In view of
appellant's admissions that he committed the homicide in question, we are of the opinion that
the mere asking of the question did not affect any substantial right of the appellant or prevent
him from having a fair and impartial trial.
[Headnote 3]
3. The district attorney asked appellant on cross-examination: Is it a matter of fact that
you were dishonorably discharged from the Army?
On direct examination, appellant had testified that he had used another name when he
re-enlisted in the Army and stated he did not know of any reason why he had done so.
Clearly, on cross-examination, this question was proper as being relevant to impeachment.
The court, however, sustained appellant's objection to the question, and no prejudice to
appellant therefore resulted.
however, sustained appellant's objection to the question, and no prejudice to appellant
therefore resulted.
[Headnote 4]
4. Nevada Wise, a Reno police officer, who on September 24, 1960, spent two hours
examining the pickup camper, its contents, and the body of the victim, testified on
cross-examination that be had made a written report of this investigation. Appellant
thereupon made a motion to produce the written report so that he could further cross-examine
the witness. This motion was denied. We are of the opinion that the trial judge should have
granted the motion to produce. State v. Bachman, 41 Nev. 197, 168 P. 733; People v.
Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881. Its refusal to do so is not
reversible error if no substantial right of the appellant was prejudiced by the trial court's
erroneous ruling. NRS 169.110.
Wise testified on direct examination that he had gone to the pickup camper to photograph
the scene and to process it for latent fingerprints, and that he took photographs of the exterior
and interior of the camper. Some of these photographs were received in evidence after Wise
had testified that they correctly and accurately portrayed that which they purported to portray.
Wise also identified certain articles received in evidence which appeared in the photographs.
This testimony was corroborated by Officers Williams and Manin who were present while
Wise was making the investigation and taking the photographs. The photographs depicted a
stab wound in decedent's back, the tied hands, and blankets and other articles covering the
body.
Appellant in his written confession admitted stabbing and tying the hands of the victim
and later covering the body. At the trial he testified that the confession as given was
accurately transcribed except for certain discrepancies which he pointed out and described as
being very minor.
Under these circumstances we cannot conceive how Wise's testimony could have been
materially impeached by his written statement, or how the failure to furnish appellant the
statement was in any way prejudicial.
by his written statement, or how the failure to furnish appellant the statement was in any way
prejudicial.
5-7. The information alleges that the offense took place in Washoe County, Nevada.
There was evidence from which the jury properly could have found that this allegation was
true. The body, the fatal weapon, and the vehicle in which the homicide took place were all
found in Reno, Washoe County. Also, appellant pawned deceased's jewelry therein. The only
evidence to the contrary was appellant's written confession from which it could be inferred
that the homicide took place near Lovelock in Pershing County. This was partially supported
by the testimony of witness Bone that she rented a motel room on September 19, 1960, in
Fernley, Lyon County, to a single man, and that the automobile license number on the guest
registration card was that of the deceased's vehicle.
1

At the conclusion of the state's evidence, appellant moved for an acquittal on the grounds
that the court's jurisdiction had not been proven or, in the alternative, that the court cede
jurisdiction to Pershing County. Appellant claims error in the denial of this motion and error
in the giving of Instruction 25.
The prosecution's theory was that the homicide took place just outside Lovelock, Nevada,
and Instruction 25 reads:
When an offense is committed in this state in a car prosecuting its trip, the jurisdiction is
in any county through which the car passes in the course of its trip, or in the county where the
trip terminated. You are instructed that the vehicle described in this case * * * is a car'
within the meaning of this instruction.
NRS 171.040 provides in part as follows: When an offense is committed in this state: * *
* 2. On a railroad train, car, stage or other public conveyance, prosecuting its trip, the
jurisdiction is in any county through which the train, car, stage or other public conveyance
passes in the course of its trip, or in the county where the trip terminates.
____________________

1
In traveling by highway from Lovelock to Reno a motorist passes through Churchill and Lyon Counties.
In order to justify the giving of Instruction 25 we must construe the word car appearing
in the statute to include in its meaning a private motor vehicle.
It is respondent's contention that because of the punctuation in the statute, the words or
other public conveyance must be read in conjunction with the preceding word stage, and
that they do not refer back to a railroad train or car. It is clear to us, however, that the word
car, as used therein, was not intended to include a private motor vehicle.
NRS 171.040 was taken from Section 783 of the California Penal Code in 1911.
Subsequent to 1911, the California Legislature amended their statute by making it applicable
to a public offense committed in that state on a motor vehicle prosecuting its trip through the
state. Cal.Pen.Code, sec. 783. Nevada has enacted no such amendment.
[Headnote 5]
We conclude, therefore, that the giving of Instruction 25 was error because subsection 2 of
NRS 171.040 relates only to public conveyances, and that the word car, as used therein,
does not include a private motor vehicle. It becomes necessary, therefore, to determine
whether this error was prejudicial.
It is apparent that before the filing of the information the district attorney did not have
proof of such nature as to permit him to know where the homicide took place. The accused's
statement, if accepted as true, could place the homicide in Pershing, Churchill, or Lyon
County. On the other hand, from the evidence presented, it could be inferred that the
homicide took place in Washoe County. If the state had sent the case to Pershing County, as
requested by appellant, the same objection to a trial therein could have been raised by the
appellant. No one can say with certainty where the killing took place. Under these
circumstances, some states by statute permit the venue to lie where the dead body was found
or where the injury occurred. McCaine v. State, 152 Tex.Cr. 108, 211 S.W.2d 190. Nevada
has no such statute.
Some courts hold that where it cannot be determined with certainty in which county the
death occurred there would be no bar to prosecution for murder in the county where the
kidnaping took place under a statute identical with NRS 171.030.2 State v. Wilson, 3S
Wash.2d 593, 231 P.2d 2SS.
with certainty in which county the death occurred there would be no bar to prosecution for
murder in the county where the kidnaping took place under a statute identical with NRS
171.030.
2
State v. Wilson, 38 Wash.2d 593, 231 P.2d 288.
In support of his motion that jurisdiction be ceded to Pershing County, appellant cited
NRS 200.110, subsection 1 of which provides: If the injury be inflicted in one county, and
the party die within another county, or without the state, the accused shall be tried in the
county where the act was done, or the cause of death administered.
With the uncertainty existing in this case, resulting from the finding of the body in Washoe
County as well as the pawning of the victim's jewelry therein, the jury could have determined
that the homicide took place in Washoe County as alleged. Even if it determined that the acts
resulting in the death were committed in part in one county, and in part in another, or in two
or more counties, of which Washoe County was one, then, under NRS 171.030, venue was
properly laid in Washoe County. The killing was admittedly committed by appellant, and the
acts or effects thereof constituting or requisite to the consummation of the offense could
have occurred in two or more counties, one of which was Washoe County.
Under the present state of our statutory law, with the evidence which developed in this
case known to the prosecuting attorney at the time the information was filed, it would have
been impossible for him to allege with any degree of certainty that the offense took place in
any specific county, and he would be faced with the same dilemma if the judgment is
reversed and the case remanded for a new trial.
3

In State v. O'Shea, 28 N.J.Super. 374, 100 A.2d 772, 774, the court after holding that
venue, although it must be proved by the state, is not an element of a crime, went on to
say: "The tendency of the law, at any event in those jurisdictions not tied down by
constitutional or statutory limitations, Blume, The Place of Trial of Criminal Cases, 43
Mich.L.Rev. 59 {1944), is not to allow technical questions of venue to be made a refuge
for the guilty. Cf. the new rule, R.R. 3:6-1{b).
____________________

2
When a public offense is committed in part in one county and in part of another or the acts or effects
thereof constituting or requisite to the consummation of the offense occur in two or more counties, the
jurisdiction is in either county.

3
It is evident that our statutes should be clarified in this respect.
must be proved by the state, is not an element of a crime, went on to say: The tendency of
the law, at any event in those jurisdictions not tied down by constitutional or statutory
limitations, Blume, The Place of Trial of Criminal Cases, 43 Mich.L.Rev. 59 (1944), is not to
allow technical questions of venue to be made a refuge for the guilty. Cf. the new rule, R.R.
3:6-1(b). Chief Justice Beasley, in the course of his remarks in State v. Le Blanch, 31 N.J.L.
82 (Sup.Ct. 1864), speaks of a mere question of venuea matter so pliant that it would
expand under the slight pressure of convenience.'
[Headnote 6]
We conclude, therefore, that venue could properly be laid in Washoe County. See People
v. Fellows, 63 Cal.App. 557, 219 P. 80.
In this state, where indictments are returnable in the district court, jurisdiction and venue
are to be distinguished.
There is no question concerning the jurisdiction of the Washoe County court. Nev. Const.
art. 6, sec. 6, gives the district courts in the several judicial districts in this state jurisdiction in
all criminal cases not otherwise provided by law.
[Headnote 7]
The accused did not have a constitutional right to be tried in any particular county and,
under the circumstances of this case, no such right was conferred upon him by statute. He did
have the right, under NRS 174.410, to have a change of venue on the ground that a fair and
impartial trial could not be had in Washoe County, but no such application for removal was
made and no contention is made that the jury selected in Washoe County was improperly
constituted, erroneously impaneled, or that they were not fair and impartial.
We therefore conclude that the giving of this improper instruction pertaining to venue did
not constitute a miscarriage of justice and did not deprive appellant of any constitutional or
statutory right, it appearing with no evidence to the contrary that the crime was
committed in Nevada.
appearing with no evidence to the contrary that the crime was committed in Nevada.
[Headnote 8]
8. The lower court instructed the jury that if the homicide took place in the perpetration of
or attempt to perpetrate robbery or burglary it would be murder in the first degree. Appellant
contends this was error because the state failed to prove the essentials of any such felony. The
contention is without merit. There was ample evidence which would warrant the finding that
the killing took place while appellant was engaged in the act of robbery, or in the attempt to
rob. In either event the act would constitute a murder in the perpetration of robbery as
specified in NRS 200.030. State v. Fouquette, 67 Nev. 505, 221 P.2d 404.
9. Appellant's last claim of error is that the confession taken while appellant was a
prisoner in the Oklahoma State Penitentiary was not given voluntarily.
[Headnotes 9, 10]
Evidence was given that appellant did not ask for counsel when he gave his confession,
and this was not denied by appellant. From the evidence, supported by appellant's own oral
testimony, the trial court properly determined that the confession was voluntary. The mere
fact that the appellant was under restraint at the time the confession was given does not in
itself make the confession involuntary. Ex parte Sefton, 73 Nev. 2, 306 P.2d 771. The trial
court even deleted therefrom, outside the presence of the jury, certain evidence of other
independent and unconnected crimes.
This court is most reluctant to disregard error as harmless under NRS 169.110, particularly
in a capital case. See Rainsberger v. State, 76 Nev. 158, 350 P.2d 995. However, in the
present case, in view of the overwhelming proof of guilt, we are convinced that the jury
would not have come to a different conclusion, either as to the verdict of guilty or as to the
penalty fixed, even if the errors which we recognize had not been committed. State v. Skaug,
63 Nev. 59, 161 P.2d 708, 163 P.2d 130; cf. Garner v. State, 78 Nev. 366, 374 P.2d 525.
P.2d 525. In other words, it may not be said that any substantial right of appellant was
prejudiced by the court's erroneous rulings.
Affirmed.
Thompson, J., dissenting:
I dissent. This court is again faced with the difficult task of deciding, upon a cold record,
whether errors committed during the jury trial of a capital case are to be deemed harmless or
prejudicial. Such a decision is one concerning which judges frequently differ. I agree with the
majority opinion that the record reveals the commission of three errors by the trial court and,
in addition, one instance of prosecutor misconduct. However, I am unable to conclude, as did
they, that such accumulation of error occurred without prejudice to the defendant's right to a
fair trial.
1. The prosecutor's opening remark. It is important to remember that in a criminal case
the accused need not testify. Const. of Nev., art. 1, sec. 8; NRS 175.175. In the instant case
the sole living witness to the homicide was the defendant. Only he could communicate to
others the circumstances surrounding the killing. Whether he would elect to testify at the trial
was a decision to be made by him after presentation of the state's case in chief. He could not
be compelled to tell his story of the occurrence. In the case at bar, Walker's decision to take
the stand may well have been influenced by the prosecutor's opening statement remark,
permitted over objection, that he, Walker, was apprehended at the Oklahoma State
Penitentiary. Though not a direct statement to the jury of his status as a convict, the
implication was clear and had the tendency to connect him with the commission of a separate,
distinct and independent crime.
1
In State v. Lindsay, 63 Nev. 40, 161 P.2d 351, where a
witness was asked whether he and the defendant did time together in Walla Walla,
Washington, this court held the question to be misconduct and error, because it tended to
connect accused with the commission of a crime independent of and unconnected with
the one with which he was on trial.
____________________

1
The state sought to justify the remark, contending that the defendant's apprehension at the Oklahoma prison,
and all circumstances surrounding same, formed a part of the res gestae of the arrest and could be shown where
relevant to the issues, citing Fricke, California Criminal Evidence, 285 (5th ed. 1960). This contention is without
merit. The so-called apprehension was not an
Nev. 40, 161 P.2d 351, where a witness was asked whether he and the defendant did time
together in Walla Walla, Washington, this court held the question to be misconduct and error,
because it tended to connect accused with the commission of a crime independent of and
unconnected with the one with which he was on trial. Such error, however, was not deemed
prejudicial under the circumstances of that case. See also Garner v. State, 78 Nev. 366, 374
P.2d 525.
Thus, during the initial stage of the trial, the jury was indirectly advised of Walker's status
as a convict. Perchance, Walker's pre-trial strategy was to remain silent, thereby precluding
jury knowledge of his crime record. If so, such pre-trial decision may have been changed
because of the prosecutor's opening remark. Trial plans are frequently altered by such a
circumstance. In any event, Walker decided to testify. Because of that decision the jury
learned, among other things, that he was a five-time loser, having been previously
convicted of five felonies. Whether his election to be a witness was in fact influenced by the
prosecutor's opening remark is not known to us. However, I am unable to cast from my
thoughts this question: Would either the verdict or the sentence have been different had such
remark not been made, had Walker elected to remain silent, and had the jury not become
aware of his extensive crime record?
2
I deem such question appropriate when called upon to
decide whether prejudice resulted to a substantial right of one accused of crime. Accordingly,
I prefer not to speculate that the trial result would have been the same, particularly in a capital
case where the sentence of death has been pronounced.
____________________
arrest; it was simply a conference at which the prosecutor questioned Walker regarding the Nevada homicide,
and received his answers, the entire proceeding being reported and transcribed. In any event, the circumstance of
Walker's imprisonment was not relevant to any issue in his Nevada murder trial.

2
Specific reference to Walker's criminal record was deleted from the confession which was introduced during
the state's case in chief, in accordance with the rule in State v. Skaug, 63 Nev. 59, 161 P.2d 708, 163 P.2d 130.
2. The prosecutor's question re incidence of homosexuality. During presentation of the
state's case in chief, the deputy warden of the Oklahoma prison was asked: Now, based on
your experience as a deputy warden at the Oklahoma State Penitentiary, and your some eight
years experience altogether at the prison, and based on your close contact with the inmate
personnel, can you state the incidence of homosexuality with the inmate population? During
argument upon the objection interposed by defense counsel, the prosecutor admitted that he
could not connect the subject of homosexuality with the defendant. In view of such
concession, I believe the mere asking of such question to be misconduct. The majority,
though conceding that the prosecutor erred in asking the question, appears to believe it to
have been unintended error, committed in the exercise of good faith. I am unable to reach the
same conclusion. Had the prosecutor believed that the subject of homosexuality was relevant
to the case and that evidence was available to establish the defendant's affliction in that
regard, my opinion would be otherwise. However, with the information that such evidence
was not available and could not be offered, I deem the question grossly improper.
Though the trial court sustained the objection and instructed the jury to disregard the
question, the possible prejudice resulting from the fact that it was asked and overheard by the
jurors, was not, in my judgment, thereby eliminated. Not every error is cured by a correct
ruling and admonition. In State v. Teeter, 65 Nev. 584, 200 P.2d 657, this court reversed a
second degree murder conviction notwithstanding a correct ruling and admonition, simply
because the subject matter sought to be introduced (another offense) and talked about before
the jury, was inherently prejudicial. The same reasoning has application here.
Finally, the defendant's decision to testify may have been influenced by this circumstance,
as well as by the subject previously discussed. We do not know. It is sufficient to note that
upon conclusion of the state's direct case, the jury may well have considered Walker to be a
convict and, perchance, a homosexual.
to be a convict and, perchance, a homosexual. It should not have been permitted the
opportunity, at that stage of the trial, to surmise regarding such inherently prejudicial matter.
Thus, it is apparent that Walker's status as a convict was proper ammunition only by way
of impeachment should he testify. It is equally apparent that the incidence of homosexuality
among the inmates at the Oklahoma prison was not pertinent to the case at any stage of the
trial. Yet, the first was indirectly mentioned before any testimony was offered, and the second
referred to during the prosecution's direct case, perhaps upon the premise that guilt by
association might be of assistance in obtaining a conviction. I do not find such occurrences
compatible with the concept of a fair trial.
3. The written report of the witness Wise. Though not a crucial witness, Officer Wise of
the Reno Police Department was an important witness to the state's direct case. He
investigated the scene of the homicide. He photographed the interior of the camper and its
contents, the position of the victim therein, processed for fingerprints and, during trial, related
his activities and observations, identifying many items which were received in evidence.
During cross-examination by defense counsel it developed that Officer Wise had, before trial,
made a written report of his investigation. The defense motion to produce such report was
denied. This ruling is assigned as error.
Our nation's highest court in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1
L.Ed.2d 1103, considered the matter of discovery during trial.
3
In Jencks, crucial testimony
against the defendant, charged with filing an affidavit stating falsely that he was not a
member of the communist party, was given by two undercover agents of the Federal Bureau
of Investigation. They stated on cross-examination that they had made regular oral and
written reports to the FBI on the subjects of their direct testimony.
____________________

3
Discovery during trial is to be distinguished from the pre-trial discovery problem presented in Pinana v.
District Court, 75 Nev. 74, 334 P.2d 843, and Pinana v. State, 76 Nev. 274, 352 P.2d 824. An excellent article re
all aspects of criminal discovery appears in 49 Calif.L.Rev. 56.
made regular oral and written reports to the FBI on the subjects of their direct testimony.
Defendant moved for production of these reports for inspection by the judge, with a view to
their use by defendant for impeachment purposes. The motion was denied. The defendant was
convicted. His conviction, affirmed by the Court of Appeals, was reversed by the Supreme
Court. The court held that the defendant was entitled to examine the reports withoutas
some previous cases had requireda preliminary showing of inconsistency between the
reports and the agent's testimony, or a preliminary in camera inspection of the reports by the
judge to determine relevancy.
4
Though the rule announced in Jencks appears, at this time, to
be a rule of procedure and not binding on state courts, it is most persuasive. Indeed, this
court, long before Jencks, adopted a similar view. See State v. Bachman, 41 Nev. 197, 168 P.
733.
My colleagues agree that error occurred when the trial court denied the defendant's motion
to produce, but label such error harmless. I cannot concur. The information requisite to such a
determination is not contained in the record on appeal. Cf. People v. Rosario, 9 N.Y.2d 286,
213 N.Y.S.2d 448, 173 N.E.2d 881, cited by the majority opinion. The written report of
Officer Wise was not marked for identification. We do not know whether it was valuable for
impeaching purposes; whether it was inconsistent with or in contradiction of his oral trial
testimony. Neither can we ascertain whether the written report contained information omitted
from his trial testimony, or the contrary. Cf. People v. Chapman, 52 Cal.2d 95, 338 P.2d 428.
The uses which experienced trial counsel would have made of such report, had it been
produced, are conjectural. Absent such information, a void exists, causing the choice between
the harmless or prejudicial nature of the error to be patent guesswork. In such a situation I
choose to presume prejudice.
____________________

4
Because of the Jencks opinion, Congress passed the Jencks Act, 18 U.S.C. sec. 3500. Thus, this subject,
for the purposes of federal court trials, is now governed by statute. Annot., 5 L.Ed.2d 1014.
Thus, the accumulation of error is apparent.
5
The improper reference to the accused's
status as a convict and, by inference, his possible participation in homosexual activity as an
inmate of the Oklahoma prison, despite the trial court's admonition, have the inherent
tendency to prejudice. The effect of the failure, during trial, to produce the statement of an
important witness for defense use in cross-examination, is unknowable. The accused was
tried, found guilty, and sentenced to death. These factors compel me to believe that Walker
should be accorded a new trial, free from the errors herein described. Cf. Garner v. State, 78
Nev. 366, 374 P.2d 525.
____________________

5
I agree with the majority that the cause is triable in Washoe County because of the uncertainty as to the
exact locale of the homicide. Hence the erroneous giving of Instruction No. 25 regarding the in transitu statute
should not be deemed prejudicial
____________
78 Nev. 479, 479 (1962) Cal-Farm Insurance v. Oliver
CAL-FARM INSURANCE COMPANY, a Corporation, Appellant, v. LESTER WARREN
OLIVER, JACK B. WEIDNER, and WEIDNER ENTERPRISES, a Sole Proprietorship,
Respondents.
No. 4527
November 19, 1962 375 P.2d 857
Appeal from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Action arising out of automobile accident. The lower court rendered a judgment from
which plaintiff appealed. The Supreme Court, McNamee, J., held that limitations on action
arising out of automobile accident in Nevada were not tolled by defendants' absence from
state, where service was made upon Secretary of State, although, at time of accident,
substituted service Statute required return receipt.
Affirmed.
Morse & Graves, and Lee R. Rose, of Las Vegas, for Appellant.
William Singelton and Drake DeLanoy, of Las Vegas, for Respondents.
Limitation of Actions.
Limitations on action arising out of automobile accident in Nevada were not tolled by defendants'
absence from state, where service was made upon Secretary of State, although, at time of accident,
substituted service statute required return receipt. NRS 11.190(3) (c), 11.300. 14.070.
OPINION
Oliver, while working for Weidner and driving Weidner's car, was involved in an
automobile accident which resulted in damage to appellant's assured's automobile. Within a
short time after the accident Oliver left Nevada. Weidner at all times has been a resident of
Arizona. As subrogee, appellant brought action against respondents Oliver and Weidner for
the damage.
The statute of limitations in an action for damages to personal property is three years. NRS
11.190 (3)(c). This action was commenced more than three years after the accident, and
service was obtained on respondent Weidner by service upon the Secretary of State as
provided by NRS 14.070.
1
Appellant contends, however, that by virtue of NRS 11.300 the
statute was tolled. The lower court held that the claim was barred upon the expiration of
three years because the tolling statute had no application to actions where service is
made upon the Secretary of State under NRS 14.070.
____________________

1
1. The use and operation of a motor vehicle over the public roads, streets or highways, or in any other area
open to the public and commonly used by motor vehicles, in the State of Nevada by any person, either as
principal, master, agent or servant, shall be deemed an appointment by such operator, on behalf of himself and
his principal or master, of the director of the department of motor vehicles to be his true and lawful attorney
upon whom may be served in all legal process in any action or proceeding against him growing out of such use
or resulting in damage or loss to person or property, and the use or operation shall be a signification of his
agreement that any such process against him which is so served shall be of the same legal force and validity as
though served upon him personally within the State of Nevada.
the expiration of three years because the tolling statute had no application to actions where
service is made upon the Secretary of State under NRS 14.070.
There are cases both in accord and in opposition to the lower court's holding, but even
appellant admits that the majority of states favor the view that the statute of limitations is not
tolled under these circumstances. The following states have adopted the majority view:
Alabama, Connecticut, Delaware, Illinois, Indiana, Iowa, Michigan, Mississippi, Missouri,
New Hampshire, Oregon, South Dakota, Tennessee, Vermont, and Washington.
The states following the minority rule are: Idaho, Kansas, New Jersey, New York, Ohio,
Utah, and Wisconsin.
The authorities on this subject are listed in 94 A.L.R. 485, 119 A.L.R. 859, 17 A.L.R.2d
502, and the A.L.R. supplements thereto. See also 34 Am.Jur., Limitation of Actions, sec.
221, and 54 C.J.S., Limitations of Actions, sec. 208, et seq.
The reason usually given for the majority view is well stated in Hurwitch v. Adams, 2
Storey 13, 52 Del. 13, 151 A.2d 286. In that case the accident occurred in Delaware, and
defendant, driver of the automobile, was not a resident of Delaware. Within the limitation
period defendant could have been served with process by service made on the Secretary of
State under provisions of statute providing for substituted service of process as to nonresident
owners or operators of motor vehicles. The court held that defendant was present and
available in Delaware for service of process through his statutory agent, the Secretary of
State, and was not out of the state within the meaning of the statute tolling the period of
limitations for the time the defendant was out of the state, and consequently defendant's
absence from the state during the period of limitations did not toll the period of the statute.
The statute tolling the period of limitations as to those outside the state must be deemed to
be limited by its clear and specific purpose so as to apply only to those who reside out of the
state and who are not otherwise subject to service of process in the state.
the state. The fictional presence of a defendant by an agent, imposed by law upon the
defendant, brings the defendant within the state for the purpose of service of process and the
same fiction causes the period of limitations to run. This case was affirmed with a written
opinion along the same lines in Hurwitch v. Adams, 2 Storey 247, 52 Del. 247, 155 A.2d 591.
Appellant argues however that the fiction of defendant's presence in the state through an
agent (the Secretary of State) is not applicable where the statute requires the defendant's
return receipt, because in such case, besides serving the Secretary of State in Nevada, it was
necessary to obtain defendant's signature to the return receipt outside Nevada. In support of
this argument he cites Staten v. Weiss, 78 Idaho 616, 308 P.2d 1021, where the Idaho court
held that the statute of limitations, under a statute identical with NRS 14.070 as it existed at
the time the accident herein occurred, was not tolled. This Idaho case follows the minority
view and its holding is not based on the fact that the return receipt was required in order to
complete service of summons, but upon the ground that the provision for obtaining such
service contains no specific exception to the provision tolling the statute of limitations.
NRS 14.070 at the time of the accident required that after service upon the Secretary of
State such service shall be deemed sufficient upon the motor vehicle operator provided, that
notice of such service and a copy of the process shall forthwith be sent by registered mail by
the plaintiff to the defendant, [and the defendant's return receipt] and the plaintiff's affidavit
of compliance therewith [are] attached to the original process and returned and filed in the
action in which it was issued. However, this statute at the time the complaint was filed had
been amended so as to delete the requirement of the defendant's return receipt. Even in the
absence of the amendment appellant's argument has no merit. In Kroll v. Nevada Industrial
Corporation, 65 Nev. 174, 191 P.2d 889, this court had under consideration the California
statute which likewise required a return receipt. We there stated: In the class of cases with
which we are now dealing, and under the statutes referred to, the process does not run
into the other state, but finds the defendant within the state of the action and there
makes service upon him through the agent appointed by his act,accompanied by due
notice to the defendant himself."
are now dealing, and under the statutes referred to, the process does not run into the other
state, but finds the defendant within the state of the action and there makes service upon him
through the agent appointed by his act,accompanied by due notice to the defendant
himself.
The majority rule by authority and logic is the proper rule to be followed in this state.
Affirmed.
____________
78 Nev. 483, 483 (1962) Brawner v. Elkhorn Production Credit Ass'n
FERRIS EDWARD BRAWNER, Also Known as TEX BRAWNER, Also Known as TEX
BRAUNER, Appellant, v. ELKHORN PRODUCTION CREDIT ASSOCIATION, An
Agricultural Credit Co-operative Organized and Existing Under and By Virtue of the Federal
Farm Credit Act of 1933, as Amended, Respondent.
No. 4530
November 26, 1962 376 P.2d 426
Appeal from the Eighth Judicial District Court, Clark County; John Mowbray, Judge.
Mortgagee brought a replevin action against buyer of mortgaged automobile. The trial
court entered judgment adverse to the buyer and an order denying a motion for new trial, and
the buyer appealed. The Supreme Court, Badt, C. J., held that lien of automobile mortgage
executed and recorded in Wisconsin in full compliance with Wisconsin statutes had
precedence over rights of one who bought automobile in Nevada from mortgagor for value
and without knowledge of mortgage after mortgagor, in violation of terms of mortgage, had
driven automobile to Nevada though title certificate covering automobile did not contain any
statement of mortgagee's lien thereon, and though Nevada motor vehicle licensing and
registration statute, unlike that of Wisconsin, required endorsement on certificate of
ownership to be deposited with motor vehicle department to be valid against subsequent
buyers or encumbrancers.
statement of mortgagee's lien thereon, and though Nevada motor vehicle licensing and
registration statute, unlike that of Wisconsin, required endorsement on certificate of
ownership to be deposited with motor vehicle department to be valid against subsequent
buyers or encumbrancers.
Affirmed.
Jones, Wiener & Jones and John W. Hunt, of Las Vegas, for Appellant.
Joseph L. Ward, of Las Vegas, for Respondent.
Automobiles.
Lien of automobile mortgage executed and recorded in Wisconsin in full compliance with Wisconsin
statutes had precedence over rights of one who bought automobile in Nevada from mortgagor for value and
without knowledge of mortgage after mortgagor, in violation of terms of mortgage, had driven automobile
to Nevada, though title certificate covering automobile did not contain any statement of mortgagee's lien
thereon, and though Nevada motor vehicle licensing and registration statute, unlike that of Wisconsin,
required endorsement on certificate of ownership to be deposited with motor vehicle department to be valid
against subsequent buyers or encumbrancers. NRS 482.425.
OPINION
The sole question presented by this appeal is whether the lien of a chattel mortgage on an
automobile, executed and recorded in Wisconsin in full compliance with the statutes of that
state has precedence over the rights of a purchaser in Nevada who bought the automobile
from the mortgagor for value and without knowledge of the chattel mortgage after the
mortgagor, in violation of the terms of the mortgage, had driven the vehicle to this state.
The trial court properly answered this question in the affirmative.
The case was tried on the following agreed facts: In Wisconsin one Varga purchased a
1960 Chevrolet station wagon from Lakeside Chevrolet Sales, receiving from it a car
invoice marked "paid."
station wagon from Lakeside Chevrolet Sales, receiving from it a car invoice marked paid.
Thereafter Varga applied for and received a certificate of ownership or title upon the form
commonly used in Wisconsin, the said title reflecting that Varga had title to the automobile
free and clear of any liens or encumbrances. At about the time of the sale Elkhorn loaned
Varga $3,457, taking as security therefor his note and chattel mortgage upon the automobile,
which chattel mortgage was filed in the office of the registrar of deeds in Wisconsin.
Thereafter Varga brought the vehicle to Nevada where he sold it to Fremont Hotel, Inc.,
delivering possession of the automobile and the signed title to the purchaser. Fremont
Hotel, Inc., sold and delivered possession of the vehicle to appellant Brawner for $2,000.
Brawner had no actual notice of any lien or encumbrance on the automobile and none was
given to the state authorities before the filing of the complaint herein.
Respondent commenced this action in replevin after default in payment of the note and
mortgage and after violation of the covenants of the chattel mortgage prohibiting removal of
the automobile from the state. In the course of the litigation the parties stipulated that the
automobile in question might be sold for the sum of $1,900. By the findings and judgment the
court awarded this sum to respondent.
There is a virtual unanimity of authority throughout the United States in support of the trial
court's judgment awarding priority to respondent's foreign chattel mortgage. We cite a few of
these authorities: Universal C.I.T. Credit Corporation v. Wagner, 72 Nev. 337, 305 P.2d 363;
Isaacs v. Mack Motor Truck Corporation, 50 Wash.2d 325, 311 P.2d 663; Deposit Guaranty
State Bank v. Hessell Motor Car Co., 90 Cal.App. 428, 265 P. 954; General Credit Corp. v.
Rohde, 122 Conn. 100, 187 A. 676; Handley v. Harris, 48 Kan. 606, 29 P. 1145, 17 L.R.A.
703; Ballard v. Great Western M & M Co., 39 W. Va. 394, 19 S.E. 510; Mosko v. Matthews,
87 Colo 55, 284 P. 1021; Metro-Plan, Inc. v. Kotcher-Turner, Inc., 296 Mich. 400, 296 N.W.
304; Casterline v. General Motors Acceptance Corp.,
Acceptance Corp., 195 Pa.Super. 344, 171 A.2d 813; 2 Beale, Conflict of Laws, 992 (1935);
Goodrich, Conflict of Laws, 486 (1949); Restatement, Conflict of Laws, sec. 265 (1934).
Appellant, while recognizing the general rule, asserts it to be inapplicable in the present
case, and in support of his contention relies on Dissing v. Jones, 85 Ariz. 139, 333 P.2d 725.
There a Texas certificate of title, endorsed in blank by the Texas owner, had been delivered to
an Oklahoma car dealer who sold the car to one Moore on a title retaining contract and
assigned the certificate to him, but did not endorse thereon, as required by the Oklahoma
statute, a statement of his lien. The car was subsequently taken to Arizona and there sold to
an innocent purchaser who relied on the title certificate indicating that there were no liens on
the car. The Arizona court held that under such circumstances the general rule giving priority
to a foreign lien, if properly recorded in the foreign jurisdiction, was not applicable; that the
conditional vendor by failing to comply with the Oklahoma statutes, requiring notation of his
lien on the title certificate, was not only negligent but also guilty of unlawful conduct in that
regard; that such negligent and unlawful conduct was a proper basis for predicating an
estoppel against asserting any interest in the car; and therefore the rights of the resident
purchaser in the car were superior to those of the Oklahoma conditional vendor.
Appellant urges that the ruling in the Dissing case is here applicable, since the title
certificate covering the automobile involved in the instant case does not contain any
statement of respondent's lien thereon. The court's decision in Dissing was based upon the
conditional vendor's violation of the law of the lex loci. In determining whether the
respondent here complied with the law of Wisconsin, the case of Commercial Credit Corp. v.
Schneider, 265 Wis. 264, 61 N.W.2d 499, is controlling. In the Schneider case the plaintiff,
assignee of the conditional vendor, recorded the title-retaining contract as required by
Wisconsin law, but never had his lien listed on the title certificate issued to the conditional
vendee.
vendee. The automobile covered by the contract was thereafter sold to the defendant who was
without actual notice of the plaintiff's lien.
The court held that the plaintiff had, by properly recording his lien, done everything
necessary to protect such interest, that having his lien noted on the title certificate was not
required by law and concluded: It follows that where the owner of a conditional sales
contract has recorded his lien under and pursuant to ch. 122, there can be no innocent
purchaser whose rights supersede the contract, and that in the case at bar the automobile
covered by the contract is subject to the lien of respondent. It is thus apparent that
respondent had, under the law of Wisconsin, done everything necessary to protect his lien in
that state, and was not guilty of any unlawful conduct. The Dissing case is, therefore, clearly
distinguishable from the case at bar. Indeed in Universal C.I.T. Credit Corporation v. Wagner,
72 Nev. 337, 305 P.2d 363, under a somewhat similar state of facts, this court said: When a
failure to act or a silent standing by is relied upon to create an estoppel, the same must occur
under such circumstances that there is not only an opportunity, but also an apparent duty to
act or speak. Respondent's compliance with the law of the lex loci negates the proposition
that any duty to act or speak was owed to appellant, and there is, therefore, no basis for
raising an estoppel. Metro-Plan, Inc. v. Kotcher-Turner, Inc., 296 Mich. 400, 296 N.W. 304.
With reference to the fact that a number of the cases relying upon the general rule have
based their conclusions upon comity, appellant has cited cases to the effect that comity should
not prevail where the statute of the foreign state is contrary to the public policy of this state.
The public policy of Nevada is said to result from NRS 482.425, a section of our motor
vehicle licensing and registration statute, which requires the endorsement on the certificate of
ownership to be deposited with the motor vehicle department in order to be valid against
subsequent purchasers or encumbrancers.
Concededly, the recording and registration statutes of this state are different from those of
Wisconsin. This variance between the law of the lex fori and lex loci is not, however,
standing alone, sufficient to establish a conflict in policy.
variance between the law of the lex fori and lex loci is not, however, standing alone,
sufficient to establish a conflict in policy. This state could by appropriate legislation, decline
to enforce foreign liens unless recorded locally. Mercantile Acceptance Co. v. Frank, 203 Cal.
483, 265 P. 190, 57 A.L.R. 696. However, in absence of legislation requiring local
recordation, recognition of foreign liens is not contrary to the settled policy of this state.
Universal C.I.T. Credit Corporation v. Wagner, 72 Nev. 337, 305 P.2d 363; Mosko v.
Matthews, 87 Colo. 55, 284 P. 1021.
Appellant further relies, in support of his theory that judicial comity may not prevail where
the foreign law upon which reliance is made conflicts with the policy of the states in which it
is asserted, on First National Bank of Jamestown v. Sheldon, 161 Pa.Super. 265, 54 A.2d 61.
This is no longer the law in Pennsylvania. Casterline v. General Motors Acceptance Corp.,
195 Pa.Super. 344, 171 A.2d 813. Subsequently to the decision in the Sheldon case,
Pennsylvania adopted the Uniform Commercial Code and geared its opinion in the Casterline
case to that code. The code thus adopted provided for the superiority of a foreign chattel
mortgage recorded in the state where the transaction took place, even though not locally
recorded, and even though the Pennsylvania Vehicle Code still required the notation of
security interests in motor vehicles on the title certificate. In the Casterline case the conflict
was between a New York chattel mortgage (requiring only recordation) and a purchaser
without knowledge in Pennsylvania. There the court said: Consequently the plaintiffs [the
Pennsylvania purchasers without notice] are not aided by our [decision] in First National
Bank of Jamestown, N. Y. v. Sheldon, 1947, 161 Pa.Super. 265, 54 A.2d 61 * * * decided
before the effective date of the Uniform Commercial Code. The conclusion here reached
under the Uniform Commercial Code is in accord with the rule in the majority of jurisdictions
without any statutory provision such as 9-103 (3). Bank of Atlanta v. Fretz, 1950, 148 Tex.
551, 226 S.W.2d 843; 14 C.J.S. Chattel Mortgages 15, p. 607, n. 6.
Pennsylvania, which was almost alone in the minority before the code, (14 C.J.S. Chattel
Mortgages 15, p. 609, n. 19), has adopted the majority rule legislatively in 9-103 (3) of
the code. The provisions of the Commercial Code on this point override our earlier
decisions.
Respondent's perfection of his title in Wisconsin disposes of all appellant's citations of
error.
The judgment and the order denying new trial are affirmed with costs.
____________
78 Nev. 489, 489 (1962) Beko v. Kelly
WILLIAM P. BEKO, Contestant, v.
JOHN E. KELLY, Defendant.
No. 4578
November 28, 1962 376 P.2d 429
On motion to dismiss election.
Original proceeding on statement of election contest and for declaratory judgment brought
by contestant for office of district attorney, alleging that he had received majority vote, that
recount board, after rejecting certain ballots, had declared that defendant received majority of
votes but that county board unanimously disapproved rejection. The Supreme Court, Badt, C.
J., held that the proceeding was required to be dismissed first because the petition for
declaratory judgment could not be initially filed in the Supreme Court, secondly because an
election contest is not available to a successful candidate who simply believes there might be
some cloud upon his title by reason of an irregularity, and thirdly because recount board
appointed without statutory authorization, pursuant to stipulation of parties, at most was arm
of board of county commissioners and, if so, commissioners were not bound to accept
so-called recount of such board or accept its reasons for rejecting ballots.
78 Nev. 489, 490 (1962) Beko v. Kelly
so-called recount of such board or accept its reasons for rejecting ballots.
Contest dismissed.
[Rehearing denied December 11, 1962]
Vargas, Dillon & Bartlett, of Reno, for Contestant.
John E. Kelly, of Las Vegas, defendant in pro per.
Petition for declaratory judgment must be initially filed in district court and cannot be filed initially in the
Supreme Court. NRS 30.010 et seq.
2. Elections.
Authorization to file election contest is given to defeated candidate to contest right to office of person
who has been declared elected, and is not available to successful candidate who simply feels that there may
be some cloud upon title by reason of irregularity in one or more election proceedings. NRS 293.010,
293.217 et seq., 293.367, subd. 6, 293.403, 293.407.
3. ELections.
Recount board appointed without statutory authorization, pursuant to stipulation of parties, at most was
arm of board of county commissioners and, if so, commissioners were not bound to accept its recount or its
reasons for rejecting ballots. NRS 293.010, 293.217 et seq., 293.367, subd. 6, 293.403, 293.407.
OPINION
The parties will be referred to by their last names.
Beko, as contestant, filed a statement of contest and request for declaratory relief against
Kelly, defendant, pursuant to NRS 293.407. Such section permits a candidate at any election
to contest the election of any candidate, and requires the contestant to file with the clerk of
the supreme court a written statement of contest setting forth sundry matters. Subdivisions
(b), (c), and (d) of section 2 of NRS 293.407 require the statement of contest to set forth the
name of the defendant, the office to which the defendant was declared elected, and the
particular grounds of contest.
The office involved is that of district attorney of Nye County. In place of naming the office
to which the defendant was declared elected, the statement of contest recites that the
contestant was elected by a vote of 943 as against 90S for the defendant, thus showing a
majority of 34 votes for Beko, the contestant.
78 Nev. 489, 491 (1962) Beko v. Kelly
defendant was declared elected, the statement of contest recites that the contestant was
elected by a vote of 943 as against 908 for the defendant, thus showing a majority of 34 votes
for Beko, the contestant. However, in explaining the contestant's purpose in filing the contest,
Beko proceeds to allege that pursuant to the election of November 6, 1962, the returns of the
election were canvassed by the board of county commissioners, the results of said election
declared, and the abstract of votes transmitted to the secretary of state showing the above
results; that upon defendant's demand for a recount
1
a recount board of five members was
appointed by the board of county commissioners and duly sworn and conducted such recount
on November 13, 1962, from 1:00 o'clock to 11:45 o'clock p. m., in the presence of the entire
board of county commissioners, the county clerk and the deputy county clerk, the contestant
and the defendant,
2
and rejected 67 ballots from Mercury precinct to the end that the recount
resulted as follows: for defendant Kelly 904 votes; for contestant Beko 875 votes, resulting in
a majority for Kelly of 29 votes.
The statement of contest then shows resolutions passed by the board of county
commissioners in which such board ordered that it unanimously disapproved the rejection of
the 67 ballots from Mercury voting precinct, for the reason that such rejection was contrary to
the provision of NRS 293.367(6), reading as follows: A soiled or defaced ballot may not be
rejected if it appears that the soiling or defacing was inadvertent and was not done purposely
to identify the ballot in that the markings on the rejected ballots were not sufficient to
identify the voter who had cast the ballot and that the rejection not only disenfranchised 67
voters but did not express the will of the majority of the voters.
The statement of contest then recites that by reason of certain vagueness, ambiguities, and
uncertainties existing in the election law and the manner in which a recount may be
conducted, the contestant, although averring that he has been duly elected to the office
of district attorney of Nye County, nevertheless, in the interests of fair play and justice
and because of the statutory time limitations for filing a contest, files his statement of
contest to preserve his right to question the recount.
____________________

1
Pursuant to NRS 293.403.

2
1867 ballots were counted.
78 Nev. 489, 492 (1962) Beko v. Kelly
a recount may be conducted, the contestant, although averring that he has been duly elected to
the office of district attorney of Nye County, nevertheless, in the interests of fair play and
justice and because of the statutory time limitations for filing a contest, files his statement of
contest to preserve his right to question the recount.
In addition to his motion to dismiss, Kelly has filed an answer in which, among other
things, he alleges that contestant is estopped from contesting the findings of the recount
board, because such board was appointed by the county clerk pursuant to the stipulation of
the parties to this contest. He then describes in detail the manner in which the recount was
had and asserts its complete objectivity. He then asserts that the findings of the recount board
are not subject to attack unless they constituted malfeasance and that such malfeasance was
not shown. Finally he asserts that to grant contestant's petition would result in a third count,
obviously not contemplated by the statute. Kelly prays that the contest be dismissed; the
request for declaratory judgment denied, and that Kelly be declared elected by reason of
having received the higher number of votes on the recount, and that the county clerk of Nye
County be ordered to annul Beko's certificate of election and issue and deliver to Kelly a
certificate of election to the office of district attorney.
[Headnote 1]
(1) The motion to strike the petition for declaratory relief must be granted. It is patent that
a petition for a declaratory judgment must be initially filed in the district court. Uniform
Declaratory Judgments Act, NRS Chapter 30.
[Headnote 2]
(2) It is just as patent that an authorization to file an election contest is given to a defeated
candidate to contest the right to office of a person who has been declared elected, and is not
available to a successful candidate who simply feels that there may be some cloud upon his
title by reason of an irregularity in one or more of the election proceedings.
78 Nev. 489, 493 (1962) Beko v. Kelly
[Headnote 3]
(3) The references to the recount may, however, not be ignored. A complete new election
statute was adopted by the legislature in 1960. Therein, detailed provisions were made
concerning the appointment and duties of election boards. NRS 293.217 et seq. But no
provision whatsoever was made with reference to a recount board. NRS 293.010 contains
over 50 definitions of sundry terms used in Title 24, being the act governing elections, but
without a definition of recount board. Cf. Reed v. Wheeler, 77 Nev. 6, 358 P.2d 112.
3
The
section most nearly applicable is NRS 293.225, which provides:
1. Members of election boards shall continue as such from the time of preparation for
opening the polls until the time for filing contests of the election has expired.
4

2. Each number of an election board shall be subject to call by the board of county
commissioners for the purpose of correcting any errors discovered during the canvass of votes
by the board of county commissioners.
Subdivision 3 provides for filling a vacancy on election day by appointment of a
reserve election board officer. Subdivision 4 provides for appointment of any registered and
qualified voter willing to serve.
NRS 293.227 provides that the election board shall consist of five members, and
subdivision 2 of that section provides for the conducting of a school by the county clerk to
acquaint the election board with the election laws, the duties of election boards, the rules and
regulations of the secretary of state, and sundry procedures. Pursuant to subdivision 3, such
instructions must be given before election day.
It should be noted also that Mercury precinct was under other provisions designated as a
mailing precinct, and that under NRS 293.230 one election board had been appointed by
the county clerk for all mailing precincts within the county, which board is designated as the
central election board, and is required to count the votes on the ballots in such precinct "in
the manner required by law."
____________________

3
The necessity for statutory clarification is clearly indicated.

4
A contest of election would necessarily follow, not precede a recount.
78 Nev. 489, 494 (1962) Beko v. Kelly
the votes on the ballots in such precinct in the manner required by law. The so-called
recount board in the present case was appointed without statutory authorization of any kind
whatsoever. The number of members constituting the board, its organization, its duties, its
meetings, the manner of its appointment, are all unprovided for in the election law. No
authorities have been cited to this court in support of the contention that a stipulation of the
parties for the appointment of such a recount board can take the place of statutory
authorization, or that such board, invalidly appointed by reason of such stipulation, may
constitute such board as a valid and lawful board. In State ex rel. Bible, Attorney General v.
Malone, 68 Nev. 36, 38, 231 P.2d 599, where both parties conceded in their briefs that a
certain act of the legislature was unconstitutional, this court said: [I]t is not for the parties to
stipulate, but for courts to decide the unconstitutionality. This is but a corollary of the
general rule that in cases involving general public interests, while litigants have the
undoubted right to stipulate as to the facts, it is not competent for them to stipulate what the
law is so as to bind the court. Such stipulations as to law, if made, will be disregarded. See
North Platte Lodge v. Board of Equalization, 125 Neb. 841, 252 N.W. 313, 92 A.L.R. 658,
and annotation 92 A.L.R. 663, with particular emphasis on the propriety of enforcing such
rule where the matter is one which concerns the public. The most that can be said of such
board in the present circumstances is that it was operating as an arm of the board of county
commissioners whose duty it was to canvass and certify the vote to the secretary of state. If
such be so, it was not bound to accept the recount of the so-called recount board, or to accept
its reasons for rejecting the 67 ballots from Mercury precinct.
(4) It is not the function of the court in this proceeding to speculate as to what other course
of action may possibly be open to either of the parties.
The statement of contest is dismissed. The contestant's request for a declaratory judgment
is denied. The prayer of defendant's answer that the county clerk of Nye County be
ordered to annul contestant's certificate of election and to issue a certificate of election to
defendant is denied.
78 Nev. 489, 495 (1962) Beko v. Kelly
prayer of defendant's answer that the county clerk of Nye County be ordered to annul
contestant's certificate of election and to issue a certificate of election to defendant is denied.
Each party shall pay his own costs.
____________
78 Nev. 495, 495 (1962) Armstrong v. State Board of Examiners
THE STATE OF NEVADA, on the Relation of LEOLA H. ARMSTRONG, Petitioner, v.
THE STATE BOARD OF EXAMINERS, and THE STATE CONTROLLER, Respondents.
No. 4570
December 3, 1962 376 P.2d 492
Original proceeding for writ of mandate.
Original proceeding for a writ of mandamus against the Board of Examiners and State
Controller by one whose salary as unclassified employee of Legislative Counsel Bureau had
been terminated because the Attorney General had ruled it illegal in that employees were
required to be in the classified service. The Supreme Court held that mandamus was an
appropriate remedy and that the legislative counsel is the head of agency within statute
providing that, at discretion of elective officer or head of each department, agency or
institution, one deputy and one chief assistant in such department may be appointed to
unclassified service.
Writ granted.
Samuel B. Francovich, of Reno, for Petitioner.
Charles E. Springer, Attorney General, for Respondents.
1. Mandamus.
Mandamus is available to compel performance of act which law especially enjoins as duty resulting from
office, and is to be issued in all cases where there is no plain, speedy and adequate remedy in ordinary
course of law. NRS 34.160, 34.170.
2. Mandamus.
Mere fact that other relief may be available does not necessarily preclude mandamus.
3. Mandamus.
Mandamus was available to one who had been unclassified employee of Legislative Counsel Bureau and
whose salary payments were terminated because of Attorney General's opinion that they were illegal in that
Bureau employees were required to be in classified service. NRS 34.160, 34.170, 41.010. 227.160.
4. Officers.
The legislative counsel is the head of agency within statute providing that, at discretion of elective officer
or head of each department, agency or institution, one deputy and one chief assistant in such department
may be appointed in unclassified service. NRS 218.620, 218.700, subds. 1, 2, 284.139, 284.140, subd.
3.
OPINION
Per Curiam:
This is an original proceeding in mandamus. The record before us discloses that Leola
Armstrong, the relator and petitioner, is an unclassified employee of the Legislative Counsel
Bureau. The salary for her employment is not fixed by statute; rather, it is a budgeted item.
For the fiscal year 1962-63, the Legislative Counsel Bureau submitted its budget which
included, inter alia, a request for $7,764 as salary for relator's position with the Legislative
Counsel Bureau. That sum, together with other amounts, was appropriated to the Legislative
Counsel Bureau by the 1961 legislature. The petitioner was regularly paid for her services
through July 1962. Thereafter, payments ceased as the result of an opinion by the Attorney
General, rendered with reference to the services of another unclassified employee of the
Legislative Counsel Bureau, that all employees of such Bureau be in the classified service
under the state merit and personnel system (except the deputy legislative auditor, a position
not involved in this case). The Director of the Budget, the State Board of Examiners, and the
State Controller complied with the opinion given by the Attorney General. The relator's salary
was deleted from the payroll for the pay period August 1 to August 15, 1962, and her claim
therefor rejected by the State Controller.
and her claim therefor rejected by the State Controller. It remains unpaid.
We must decide two questions. First, is the remedy of mandamus available in view of the
provisions of NRS 41.010 permitting a civil action to be filed for a claim against the state for
which an appropriation has been made, but where the amount is not fixed by law? Second, if
such remedy is appropriate, do the provisions of NRS 284.140 (3) of the personnel act
authorize the Legislative Counsel, as executive head of the Legislative Counsel Bureau, to
employ relator in the unclassified service of the state?
1
We answer each question in the
affirmative.
[Headnote 1]
1. Mandamus is proper. The writ of mandamus is available to compel the performance of
an act which the law especially enjoins as a duty resulting from an office, and shall be issued
in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of
law. NRS 34.160 and 34.170.
[Headnotes 2, 3]
Respondents contend that mandamus is not available here because NRS 41.010
2
provides
a plain, speedy and adequate remedy to relator. Indeed, they argue that NRS 41.010 precisely
fits this case because it is a claim against the state; an appropriation was made for it; and her
salary is not fixed by law. These facts cannot be denied. However, the mere fact that other
relief may be available does not necessarily supersede the remedy of mandamus.
____________________

1
Respondents also urge laches in defense. We deem such contention to be without any merit, for this
proceeding was commenced within three months of the rejection of her claim.

2
NRS 41.010 provides: Actions for services or advances authorized by law. An officer or person who has
presented a claim against the state for services or advances authorized by law, and for which an appropriation
has been made, but of which the amount has not been fixed by law, to the board of examiners, which claim the
board or the state controller has refused to audit and allow, in whole or in part, may commence an action in any
court in Ormsby County having jurisdiction of the amount for the recovery of such portion of the claim as shall
have been rejected. In such action the State of Nevada shall be named as defendant, and the summons shall be
served upon the state controller, and the action shall proceed as other civil actions to final judgment.
available does not necessarily supersede the remedy of mandamus. Mulford v. Davey, 64
Nev. 506, 186 P.2d 360, 175 A.L.R. 1255; State ex rel. Sears v. Wright, 10 Nev. 167. The
core of the problem in each case must be ascertained. If the instant case involved a dispute as
to the amount of relator's claim or salary, or whether she had in fact performed services, or
other related matters, then the discretion vested by statute in the State Controller, NRS
227.160, and the State Board of Examiners, NRS 353.090, would, in most instances, preclude
the remedy of mandamus and force the state employee to resort to the civil action
contemplated by NRS 41.010. The case before us is not such a case. The matters concerning
which the Board of Examiners and the State Controller may exercise discretion are not here
involved. The amount of relator's salary has never been and is not disputed. There is no
controversy over any aspect of her employment except its legality. The sole reason for
rejecting her claim was the advice of the Attorney General regarding another employee of the
Bureau, that employment in the unclassified service of the state by the Legislative Counsel
Bureau is unlawful. But for such advice she would have received her regular pay check as in
the past. The core of this case as to remedy is thus revealed. The exercise of discretion by
either the Board of Examiners or the State Controller is not involved. If advised that her
employment in the unclassified service of the state is lawful, payment of her salary would
follow as a duty resulting from office and especially enjoined by law. The provisions of NRS
227.160 regarding the State Controller, and NRS 353.090 regarding the State Board of
Examiners do not purport to invest such officers with discretion to determine the legality of
the employment of state personnel. That determination is one of law, and properly before this
court through the remedy of mandamus. See State ex rel. Keith v. Westerfield, 23 Nev. 468,
49 P. 119; State ex rel. Davis v. Eggers, 29 Nev. 469, 91 P. 819, 16 L.R.A.(N.S.) 630.
Indeed, had Mrs. Armstrong filed a civil action under NRS 41.010 it is possible that the
central question, the lawfulness of her employment, would not have been determined.
determined. For example, a quantum meruit recovery for services performed may have been
permitted, without a determination of the legality of her employment. In such supposed
circumstance, the inadequacy of the remedy therein provided is apparent.
A further example of the inadequacy of the remedy provided by NRS 41.010 is the issue,
clearly raised, in addition to her past and present status, as to her liability to refund to the state
the salary that she has allegedly unlawfully received. The Attorney General's opinion
(directed to the status of the other employee mentioned, but applicable as well to petitioner)
closes with this sentence: When it has been determined by your office just what position is
purported to be held by Mr. DeWhitt, this office should be advised so that necessary steps can
be taken for the recovery of any illegally paid State funds.
We must, however, briefly mention two Nevada cases relied upon by the respondents:
State ex rel. Abel v. Eggers, 36 Nev. 372, 136 P. 100 and County of Washoe v. City of Reno,
77 Nev. 152, 360 P.2d 602. In each case mandamus was denied because of the existence of a
plain, speedy and adequate remedy at law. The basic issues there involved would, of
necessity, be determined in the authorized statutory civil action had it been pursued.
However, in the case at bar, we have heretofore indicated how and in what respects the civil
action provided for by NRS 41.010 would not necessarily decide the basic issue presented,
i.e., the legality of relator's employment in the unclassified service. Thus, in the Abel and
Washoe County cases the civil action was in fact an adequate remedy, whereas here, it
patently is not.
[Headnote 4]
2. The Legislative Counsel may employ relator in the unclassified service. NRS
218.700(2) provides: The legislative counsel shall appoint such professional, technical,
clerical and operational staff as the execution of his duties and the operation of the legislative
counsel bureau may require, the appointments to be made in accordance with the provisions
of the state merit and personnel system. One of the provisions of the state merit and
personnel system is NRS 2S4.140 providing that "The unclassified service of the State of
Nevada shall be comprised of positions held by state officers or employees as follows:
merit and personnel system is NRS 284.140 providing that The unclassified service of the
State of Nevada shall be comprised of positions held by state officers or employees as
follows:
1. * * *.
2. * * *.
3. At the discretion of the elective officer or head of each department, agency or
institution, one deputy and one chief assistant in such department, agency or institution.
Though respondents assert otherwise, we deem the Legislative Counsel to be the head of
an agency as that term is used in NRS 284.140 (3). See State Licensing Bd. of Contractors
v. State Civil Service Comm., La.App., 110 So.2d 847, aff'd, 240 La. 331, 123 So.2d 76.
Indeed, NRS 218.700 (1) declares him to be the executive head of the legislative counsel
bureau, and shall direct and supervise all its administrative and technical activities. The
Legislative Counsel Bureau consists of a legislative commission, a legislative counsel, a
legislative auditor, and such other employees provided for by law. NRS 218.620.
Furthermore, we believe that the provisions of NRS 284.139, defining agency to mean
every board and commission the members of which, or some of such members, are required
by law to be appointed are especially pertinent to the Legislative Counsel Bureau. Its
members are required by law to be appointed. Accordingly, we hold that the Legislative
Counsel, as executive head of the Legislative Counsel Bureau, in accordance with NRS
284.140 (3), may appoint one deputy and one chief assistant in the unclassified service of the
State of Nevada. As the relator is either a deputy or chief assistant, her appointment was
authorized.
3

It is ordered that a peremptory writ of mandate issue commanding the State Controller to
draw his warrant upon the State Treasury in favor of relator for the salary claimed.
____________________

3
Though there is some confusion regarding relator's title as an unclassified employee of the Bureau, that
matter is of no consequence. The legislative Counsel may designate her to be either his deputy or his chief
assistant.
____________
78 Nev. 501, 501 (1962) Robison v. Bate
B. H. ROBISON, Appellant, v. MARY KATHREEN BATE, as Executrix of the Estate of
MARY BATE, Deceased, and GEORGE ELDRIDGE, Respondents.
No. 4521
December 13, 1962 376 P.2d 763
Appeal from the Seventh Judicial District Court, White Pine County; Taylor H. Wines,
Judge.
Action for determination of plaintiff's and defendants' relative rights to certain creek and
spring waters. From a judgment of the trial court, the plaintiff appealed. The Supreme Court,
McNamee, J., held that where trial court did not attempt to adjudicate any rights of parties but
denied relief solely on ground that there had been no showing of irreparable injury to any
party, it failed in its primary duty to make definite findings and conclusions with respect to
any proven rights of parties to waters in question.
[Rehearing denied January 11, 1963]
Mann and Scott, of Elko, for Appellant.
Gray and Horton, and Earl M. Hill, of Reno, for Respondents.
1. Waters and Water Courses.
Water rights acquired by appropriation prior to 1905 were not affected by enactment of subsequent water
laws.
If court believed from evidence, in action for determination of relative rights to waters of creek and
certain springs, that one or some of the parties had acquired vested rights to any part of those waters it was
duty of court to decree nature and extent of those rights. NRCP 52(a).
In action respecting determination of relative water rights of parties, court was required to find facts
specially and state separately its conclusions of law thereon and direct entry of appropriate judgment.
NRCP 52(a).
Trial court, which did not attempt to adjudicate any rights of parties to waters involved in action but
denied relief solely on ground that no showing of any irreparable injury to any party was made, lost sight of
duty to make definite findings and conclusions with respect to any proven water rights and
judgment denying relief would be reversed.
and conclusions with respect to any proven water rights and judgment denying relief would be reversed.
5. Injunction.
Actual damage need not be proven to enjoin interference with vested right.
OPINION
Appellant, as plaintiff below, seeks determination of his and the defendants' (respondents')
relative rights to use certain waters of Piermont Creek and of certain springs.
In his first cause of action plaintiff alleges that he is the owner of the O'Neil ranch and
Keegan meadow and that defendant Bate is the owner of the Bate ranch which separates the
O'Neil ranch and the Keegan meadow. Eldridge, as lessee of the Bate property, is joined as a
defendant. Plaintiff further alleges that Piermont Creek flows from the northeast to the
southeast in a natural channel across the O'Neil land continuing across the Bate ranch and
entering Keegan meadow; that prior to 1905 and each year subsequent thereto, plaintiff's
predecessors in ownership of the O'Neil ranch and of the Keegan meadow used the waters
flowing in said channel on the O'Neil ranch and the Keegan meadow for irrigation and stock
water, thereby establishing in them a vested right to such use of said waters; that in 1957,
defendants constructed a diversion ditch across the channel of Piermont Creek at a point on
the Bate ranch which prevented waters of Piermont Creek from flowing onto the Keegan
meadow, and as a result, plaintiff has been unable to irrigate hay meadows and pasture land
on the Keegan meadow to his damage.
Plaintiff's second cause of action concerns water rising from one large and several small
springs on the border between another Bate ranch and the Keegan ranch owned by plaintiff.
He alleges that prior to 1905 and each year thereafter, his predecessors in ownership of the
Keegan ranch used these waters for irrigation and stock water purposes, thereby establishing a
vested right for such use; that defendants have constructed a ditch which carries the
water from said springs onto the Bate ranch thereby depriving plaintiff of the use of said
water on the Keegan ranch to plaintiff's damage.
right for such use; that defendants have constructed a ditch which carries the water from said
springs onto the Bate ranch thereby depriving plaintiff of the use of said water on the Keegan
ranch to plaintiff's damage.
Plaintiff prays for a determination that defendants have no right to the use of any of the
waters of Piermont Creek or of the springs flowing therein and that plaintiff has a vested right
in and to said waters for irrigation and stock water purposes; that the court decree that
defendants have no right to the use of the waters from the springs described in his second
cause of action, and that a vested right therein be established in plaintiff for irrigation and
stock water purposes; and that defendants be enjoined from interfering with plaintiff's rights
and from maintaining said diversion, ditches.
In addition to certain denials, respondents' answer contains a counterclaim, relating only to
plaintiff's first cause of action, wherein they allege that plaintiff has diverted certain waters in
which they have a vested interest thereby preventing said waters from reaching the Bate
ranch. Respondents also pray for an injunction and for an adjudication of the rights of
respondent Bate to the waters of Piermont Creek and of the springs flowing therein, and for a
determination that plaintiff has no right to use said waters.
It appears from the court's findings that Piermont Creek flows easterly onto and across the
O'Neil ranch and then enters the Bate ranch and after leaving the Bate property flows easterly
into the Piermont Slough and Keegan meadow; that a number of springs rise on both the Bate
and the O'Neil ranches and, when running, these springs flow into the channel known as the
natural channel of Piermont Creek on both the O'Neil and Bate lands. Springs on the Bate
lands occur over a hundred yards southwest of the point where Piermont Creek enters the
Bate ranch; that prior to 1905, the plaintiff's predecessors in interest at the O'Neil ranch
diverted the waters of Piermont Creek for the purpose of irrigating natural and cultivated
meadows on the O'Neil ranch, and despite the diversions, in periods of high flow waters
would come down the natural channel and flow upon the northern portion of the Bate lands;
that in addition to the surface flow, an underground flow reached the Bate land; that the
evidence does not disclose the volume of surplus waters, nor whether the use made by
the plaintiff's predecessors of the waters of Piermont Creek exhausted the flow in
Piermont Creek; that in 194S or 1949, plaintiff cut a ditch near the fence separating the
O'Neil and Bate ranches which gathers and turns east to the O'Neil ranch surface waters;
that the flow onto the Bate ranch now consists of the waters in the natural channel where
it enters the Bate ranch plus underground waters; that in 1957, defendant Eldridge had,
at a point on the Bate ranch 100 to 150 feet south of the fence, cut a ditch which runs
east and south from the channel of Piermont Creek which diverts at least half of the water
running in Piermont Creek onto the Bate lands; that there is no evidence of damage
caused to any of the parties by these diversions nor to what extent the flow out of the
various sloughs and creeks has been reduced.
the surface flow, an underground flow reached the Bate land; that the evidence does not
disclose the volume of surplus waters, nor whether the use made by the plaintiff's
predecessors of the waters of Piermont Creek exhausted the flow in Piermont Creek; that in
1948 or 1949, plaintiff cut a ditch near the fence separating the O'Neil and Bate ranches
which gathers and turns east to the O'Neil ranch surface waters; that the flow onto the Bate
ranch now consists of the waters in the natural channel where it enters the Bate ranch plus
underground waters; that in 1957, defendant Eldridge had, at a point on the Bate ranch 100 to
150 feet south of the fence, cut a ditch which runs east and south from the channel of
Piermont Creek which diverts at least half of the water running in Piermont Creek onto the
Bate lands; that there is no evidence of damage caused to any of the parties by these
diversions nor to what extent the flow out of the various sloughs and creeks has been reduced.
With respect to the second cause of action, the court found that the large spring has, since
about 1900, flowed east some five to six hundred feet and thence north through the Bate
ranch where the waters were diverted and used for stock watering and irrigation; that the
waters from the other springs arising on the Keegan ranch flow southeasterly; that at a time
not stated, plaintiff dynamited the bed of the pond on the Keegan ranch and, in 1957,
defendant Eldridge made a cutting of the channel from the large spring; that it does not
appear whether the flow from the large spring was affected by plaintiff's action, or whether
plaintiff was damaged by an action on the part of the defendants.
[Headnote 1]
The court concluded as a matter of law that the waters escaping from the O'Neil ranch to
the Bate lands are waste waters which could not be appropriated by defendants under the rule
of In re Bassett Creek, 62 Nev. 461, 155 P.2d 324, and that thus defendants were entitled to
no relief by their counterclaim; that plaintiff has failed to show irreparable injury by any
action of defendants under his first cause of action; that under the second cause of action,
defendants' predecessors in interest prior to 19051 had appropriated the waters of the
large spring and have since that time beneficially used those waters for irrigation and
stock watering; and that plaintiff has failed to show irreparable injury for those acts of
the defendants of which he complains under his second cause of action.
the second cause of action, defendants' predecessors in interest prior to 1905
1
had
appropriated the waters of the large spring and have since that time beneficially used those
waters for irrigation and stock watering; and that plaintiff has failed to show irreparable
injury for those acts of the defendants of which he complains under his second cause of
action. The court thereupon entered judgment denying any relief either to the plaintiff or to
the defendants. Appeal is from this judgment.
We need not now determine whether the record supports the findings and conclusions.
[Headnote 2]
Issues were raised by the pleadings which would require the lower court, upon
presentation of evidence in support thereof, to make a determination of the relative rights, if
any, of the parties to any of the waters subject to appropriation which are described in the
pleadings. If insufficient evidence was presented to substantiate a finding that a party has a
vested right, it was incumbent upon the court to deny relief on this ground. On the other hand,
if the court believed from the evidence that one or some of the parties had acquired vested
rights to any part of the waters in question, it was the duty of the court to decree the nature
and extent of such rights. NRCP 52 (a).
Evidence was presented from which it appears that the court could have made some such
determination. In fact, as pointed out above, the lower court denied relief to plaintiff under his
second cause of action because it concluded that defendants' predecessors in interest had
validly appropriated the waters of the large spring and thereafter beneficially used the same.
[Headnote 3] 351 P 2d 611; Poe v. LaMetropolitana Co.,
Under NRCP 52 (a) the trial court was required to find the facts specially and state separately its conclusions of
law thereon and direct the entry of the appropriate judgment. See Garibaldi Bros. v. Waldren, 74 Nev. 42, 321
P.2d 248; Timney v. Timney, 76 Nev. 230,
____________________

1
Water rights acquired by appropriation prior to 1905 were not affected by the enactment of subsequent
water laws. In re Manse Springs and Its Tributaries, 60 Nev. 280, 108 P.2d 311.
351 P 2d 611; Poe v. LaMetropolitana Co., 76 Nev. 306, 353 P 2d 454. United Tungsten
Corp. v. Corporation Service, Inc., 76 Nev. 329, 353 P.2d 452; Heidtman v. Nevada
Industrial Commission, 78 Nev. 25, 368 P.2d 763; Kweskin v. Finkelstein, 223 F.2d 677 (7th
Cir., 1955); Maher v. Hendrickson, 188 F.2d 700 (7th Cir., 1951).
In Walsh v. Wallace, 26 Nev. 299, 331, 67 P. 914, 919, 99 Am.St.Rep. 692, this court
said:
A decree should be based upon definite findings, and the findings can be no more definite
or certain than the evidence justifies; and where, as in the case at bar (an equitable action to
determine conflicting claims of right to the use of water, with the parties before the court),
there is nothing whatever in the record upon which to base findings or decision of those
rights, either expressly or impliedly, and the findings and decision leave a material part of the
controversy undetermined, or to be determined by piecemeal by future litigation, the action of
the court in leaving undetermined essential rights of all the parties cannot be upheld, and is
contrary to law.
[Headnotes 4, 5]
In its findings of fact and conclusions of law the trial court without attempting to
adjudicate any rights of the parties to the waters in question denied relief solely upon the
ground that no showing had been made of any irreparable injury to any party resulting from
any of the alleged acts of the parties. In so doing it lost sight of its primary duty to make
definite findings and conclusions with respect to any proven rights of the parties to the waters
in question. Indeed, actual damage need not be proven in order to enjoin interference with a
vested right. Brown v. Ashley, 16 Nev. 311.
For the reasons given the judgment is reversed and the cause remanded for a new trial. No
costs are allowed.
Thompson, J., and Brown, D. J., concur.
Badt, C. J., being disqualified, the Governor designated Honorable Merwyn H. Brown,
Judge of the Sixth Judicial District, to sit in his stead.
____________
78 Nev. 507, 507 (1962) Eldorado Club, Inc. v. Graff
ELDORADO CLUB, INC., a Nevada Corporation, Doing Business as the HORSESHOE
CLUB and HORSESHOE OPERATING CO., INC., a Nevada Corporation, Appellants, v.
FRANCIS B. GRAFF, Respondent.
No. 4516
December 26, 1962 377 P.2d 174
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Action for injuries to business invitee who on January 3, 1959 fell while guiding a hand
truck, carrying two 100-pound sacks of potatoes, down an inclined ramp leading from an
alley to the floor of defendant's receiving room, which fall resulted from stepping upon a
lettuce leaf on the ramp. From a judgment of the trial court in favor of plaintiff, the
defendants appealed. The Supreme Court, Thompson, J., held, inter alia, that the admission of
testimony that on two separate occasions during November, 1958 witness had slipped and
fallen on the ramp, the first time because of a smear or wet spot and the second time
because of a lettuce leaf or some green leafy vegetable, for purpose of establishing notice to
defendant of dangerous condition of ramp when wet with refuse upon it, constituted
prejudicial error.
William Singleton, of Las Vegas, for Appellants.
Morton Galane and Herman M. Adams, of Las Vegas, for Respondent.
1. Negligence.
In the slip and fallcase involving a foreign substance upon a surface, if evidence is available to
establish or permit reasonable inference that its presence was result of conduct by agents or employees of
defendant, liability may be found upon ordinary agency principles, respondeat superior is applicable, and
notice is imputed to defendant, but if presence of foreign substance was due to acts of persons other than
agents or employees of defendant, liability may be found only on proof that defendant had either actual or
constructive notice thereof, and when positive evidence is not available to explain presence of such
foreign substance, trier of fact is called upon to draw such reasonable inferences as
are permitted from evidence offered in this regard.
presence of such foreign substance, trier of fact is called upon to draw such reasonable inferences as are
permitted from evidence offered in this regard.
2. Negligence.
In the slip and fall case involving a foreign substance upon the surface, the admissibility of evidence of
prior accidents, to show notice or knowledge of danger causing the accident, is generally confined to
situations where there are conditions of permanency.
3. Negligence.
In the slip and fall case, evidence of prior accidents is usually excluded where it relates to a temporary
condition which might or might not exist from one day to the other unless there is proper showing that
conditions surrounding prior occurrences have continued and persisted.
4. Negligence.
In action for injuries to business invitee who fell on January 3, 1959, while guiding a hand truck carrying
two 100-pound sacks of potatoes down an inclined ramp leading from alley to floor of defendant's
receiving room, which fall resulted from stepping upon a lettuce leaf on the ramp, admission of testimony
that on two separate occasions during November, 1958 witness had slipped and fallen on the ramp, the first
time because of a smear or wet spot and the second time because of a lettuce leaf or some green leafy
vegetable, for purpose of establishing notice to defendant of dangerous condition of ramp when wet with
refuse upon it was error.
In action for injuries to business invitee who on January 3, 1959 fell while guiding a hand truck down an
inclined ramp leading from alley to floor of defendant's receiving room, error in admitting testimony of
witness that on two separate occasions during November, 1958 he had slipped and fallen on ramp because
of a smear or wet spot and because of a lettuce leaf or some green leafy vegetable was prejudicial in
view of the multiple possibilities of its improper application and use by jury where not relevant to notice
and duty. NRCP 61.
OPINION
On January 3, 1959, Graff, a business invitee, fell while guiding a hand truck, carrying two
100-pound sacks of potatoes, down an inclined ramp leading from an alley to the floor of the
Horseshoe Club receiving room. His fall resulted from stepping upon a lettuce leaf on the
ramp. Thereafter he commenced suit against the owner of the Horseshoe Club to recover
damages for personal injuries sustained, claiming negligence.
personal injuries sustained, claiming negligence. A jury returned a general verdict for Graff,
assessing damages in the sum of $50,000. Judgment was entered thereon. Eldorado Club,
Inc., owner of the Horseshoe Club, appeals.
During presentation of plaintiff's case in chief a witness was permitted to testify, over
objection, that on two separate occasions during November 1958 he had slipped and fallen on
the ramp, the first time because of a smear or wet spot, and the second time because of a
lettuce leaf or some green leafy vegetable. The trial court received such testimony for the
limited purpose of establishing notice to the defendant of the dangerous condition of the ramp
when wet or with refuse upon it.
1
The trial court's ruling is assigned as error. As we believe
the assignment has merit, we shall not directly consider the other assignments made.
The thrust of the appellant's contention is that, though notice evidence may be
admissible to establish the defendant's knowledge of a dangerous condition which is
permanent or continuing in character (a structural defect for example), it is not admissible to
show such knowledge when, as here, the alleged dangerous condition (the presence of a
lettuce leaf on a ramp) is temporary and changeable in nature, and not shown to be
continuing.
[Headnote 1]
Before discussing this contention it is appropriate to note that, in the slip and fall case
involving a foreign substance upon a surface, proof as to how and why such substance was
there is indeed a problem. If, perchance, evidence is available to establish or permit the
reasonable inference that its presence was the result of conduct by agents or employees of the
defendant, liability may be found upon ordinary agency principles; respondeat superior is
applicable, and notice is imputed to the defendant. In such case notice need not be shown.
Wagon Wheel v. Mavrogan, 78 Nev. 126, 369 P.2d 688.
____________________

1
Similar evidence offered through another witness was excluded because it related to an occurrence more
than six months before the incident giving rise to the present suit, the judge believing any occurrence beyond six
months to be too remote.
On the other hand, if the presence of the foreign substance was due to the acts of persons
other than agents or employees of the defendant, liability may be found only on proof that the
defendant had either actual or constructive notice thereof. Annot., 61 A.L.R.2d 6, 69.
Frequently, positive evidence is not available to explain the presence of such foreign
substance, and the trier of fact is called upon to draw such reasonable inferences as are
permitted from the evidence offered in this regard.
In the instant case positive proof to explain the presence of the lettuce leaf upon the ramp
was not offered, presumably because it was not available. However, evidence was received
which, in our judgment, would permit the jury to infer that its presence was the result of
conduct by agents or employees of the defendant.
2
Evidence was also received which would
permit the inference that its presence was due to the conduct of others. Whether the jury
attributed its presence to agents and employees of the defendant or to the conduct of others is
not known. If the latter, the error committed in receiving the evidence in question is obvious,
for the defendant's duty to remove the lettuce leaf depended upon notice of its presence.
Surely, the existence of a wet spot and a lettuce leaf on the ramp on separate occasions in
November of 1958 and the consequent slips and falls could not serve to notify the defendant
of the presence of the lettuce leaf in question which caused Graff to slip and fall on January 3,
1959.
[Headnotes 2, 3]
Notwithstanding, Graff urges that such evidence was admissible to establish notice of a
dangerous condition, i.e., the ramp with a lettuce leaf on it as distinguished from notice of the
presence of the lettuce leaf. We consider this to be quibbling. No contention is made that the
ramp was dangerous per se; that there was a structural, permanent or continuing defect.
Rather, the contention is that the ramp became dangerous because of the presence of a
lettuce leaf on it.
____________________

2
Garbage cans were maintained in the alley outside the rear door of the receiving room, to which kitchen
refuse, including lettuce leaves, was carried periodically over the inclined ramp.
the presence of a lettuce leaf on it. Thus, the instrumentality causing the slip and fall was
claimed to be, and in fact was, the lettuce leaf. The admissibility of evidence of prior
accidents in this kind of a case, to show notice or knowledge of the danger causing the
accident, is generally confined to situations where there are conditions of permanency. See
annot., 70 A.L.R.2d 167. Evidence of the type here in question is usually excluded where it
relates to a temporary condition which might or might not exist from one day to the other
unless, of course, there is proper showing that the conditions surrounding the prior
occurrences have continued and persisted. Moore v. American Stores Co., 169 Md. 541, 182
A. 436; Boles v. Montgomery Ward & Co., 153 Ohio St. 381, 92 N.E.2d 9; Montgomery
Ward & Co. v. Wright, 70 Ariz. 319, 220 P.2d 225. No such showing was made here. It
would be grossly unfair to demand immediate awareness of new peril.
The slip and fall due to the temporary presence of a lettuce leaf is a different type
situation than that existing in Longabaugh v. The Virginia City and Truckee R. R. Co., 9 Nev.
271, and Powell v. N. C. and O. Railway, 28 Nev. 40, 78 P. 978, relied upon by respondent,
and we do not consider the claimed analogy to be valid. We view the precise question here
presented to be one of first impression in Nevada. Some cases may be read as permitting
evidence of prior slips and falls, even absent a showing that the conditions surrounding the
prior occurrences continued and persisted. See Slow Development Company v. Coulter, 88
Ariz. 122, 353 P.2d 890; Cameron v. Small, 182 S.W.2d 565 (Mo.Sup. 1944). We consider
the opposite view to be preferable.
[Headnote 4]
We hold, therefore, that where a slip and fall is caused by the temporary presence of debris
or foreign substance on a surface, which is not shown to be continuing, it is error to receive
notice evidence of the type here involved for the purpose of establishing the defendant's
duty.
[Headnote 5]
Thus, we must determine whether such error is harmless or prejudicial in view of NRCP
61.
3
Upon admission of the evidence, the court advised the jury that its use was limited to
the purpose of establishing notice. As the defendant's duty to remove the lettuce leaf
depended upon notice of its presence (assuming its presence to be due to conduct of persons
other than defendant's agents or employees), the jury may have used such evidence to
establish the defendant's duty when it was not admissible for that purpose. The prejudicial
effect, under such circumstances, is apparent. Furthermore, evidence of prior slips and falls
introduces collateral issues which sometimes tend to confuse rather than enlighten. Though
such evidence is permitted where relevant to notice and duty (despite the introduction of
collateral issues), where the cause of the fall is a permanent or continuing condition, the
multiple possibilities of its improper application and use by the jury where not relevant to
notice and duty, as in this case, are manifest. We conclude that the judgment below must be,
and is, reversed and the cause remanded for a new trial.
____________________

3
NRCP 61 reads: 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 a now
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.
____________

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