Nevada Reports 1952 (69 Nev.) PDF

69 Nev.
1, 1 (1952)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
_____________
VOLUME 69
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69 Nev. 1, 1 (1952) Nevada Industrial Commission v. Peck
NEVADA INDUSTRIAL COMMISSION, Appellant, v.
STANLEY W. PECK and BURTON V. WOOMACK, Respondents.
No. 3662
January 9, 1952. 239 P.2d 244.
Appeal from the Second Judicial District Court, Washoe County; Merwyn H. Brown,
presiding judge, department No. 1.
Action by Stanley W. Peck against Burton V. Woomack and William J. Heffler for
personal injuries. Defendant Heffler was dismissed from the action and the Nevada Industrial
Commission was joined as a defendant by court order. From a judgment decreeing that
plaintiff was entitled to all the benefits of the Nevada Industrial Insurance Act the Industrial
Commission appealed. The Supreme Court, Eather, J., held that failure of Woomack, as hotel
operator, to report plaintiff's name as an employee of hotel, did not constitute a rejection of
the Industrial Insurance Act by the hotel and plaintiff was therefore entitled to benefits
thereunder for personal injuries.
Affirmed.
John R. Ross, of Carson City, and C. E. Horton, of Ely, for Appellant.
Martin Scanlan, of Reno, for Respondent Stanley W. Peck.
Woodburn, Forman and Woodburn, and Gordon Thompson, all of Reno, for Respondent
Burton V. Woomack.
1. Workmen's Compensation.
Employer who accepts industrial insurance act is conclusively presumed to have accepted it for all
employees, regardless of their classification, and any rejection of act by employer is a rejection of the act in
its entirety. N.C.L.1929, sec. 2680.
Failure of employer to list an employee on his payroll or to make proper segregation of employment does
not show an intent to exclude that employee or class of employees from coverage of industrial insurance
act. N.C.L.1929, sec. 2680, et seq.
Failure of operator of hotel, which had accepted industrial insurance act, to report to industrial
commission name of employee of a workman engaged by hotel to install, reconstruct and encase flues of
hotel as an employee of hotel, did not constitute a rejection of industrial insurance act by hotel and
employee was therefore entitled to benefits thereunder for personal injuries. N.C.L.1929, secs. 2680, 2688,
2702, 2718.
A reasonable, liberal and practical construction of industrial insurance act is preferable to a narrow
construction. N.C.L.1929, sec. 2680, et seq.
OPINION
By the Court, Eather, J.:
This is an appeal from a judgment of the district court of the State of Nevada, in and for
the county of Washoe, Department No. 1, in an action tried to the court under the terms of the
Nevada industrial insurance act; also from an order denying appellant's motion for a new trial.
The action was instituted by Stanley W. Peck, plaintiff, for damages for personal injuries
against Burton V.
injuries against Burton V. Woomack and William J. Heffler, as defendants; thereafter
William J. Heffler was dismissed from the action. Subsequently and pursuant to an order of
the court the Nevada Industrial Commission was made a defendant in the case, and filed its
pleading pursuant to such order.
Briefly stated the facts are as follows: In January, 1947, respondent Woomack was the
operator of the Pioneer Hotel in the city of Reno. He had employed one William J. Heffler to
install, reconstruct and encase terra cotta flues for the hotel building. Respondent Stanley W.
Peck was engaged as a workman in this operation, and on January 7, 1947, was struck by a
falling brick, seriously injuring him. The injury necessitated a delicate and dangerous
operation on his skull, forehead and brain, which required the placing of a metal plate of
tentalum, which is an element with a consistency of silver.
Woomack had regarded Heffler as an independent contractor in the doing of this work and
had not reported to the Nevada Industrial Commission any of the workmen as employees of
the hotel. Following his injury Peck had communicated with the commission with respect to
compensation and had been advised that he was not covered inasmuch as the hotel had not
reported him as an employee. He thereupon brought this action against Woomack and Heffler
asking damages for negligence. After trial and submission of the matter, the trial court, on
September 23, 1949, found that a complete determination of the controversy could not be had
without the presence of the Nevada Industrial Commission, and ordered that the commission
be made a party defendant. This having been done, the matter was retried.
Upon submission after the second trial the court found that Heffler was not an independent
contractor and that Peck was an employee of Woomack; that Woomack had accepted the
provisions of the Nevada industrial insurance act and that Peck had not rejected the terms of
that act as provided by the act; that the only reason why Peck had not received the
benefits of the act was due to the refusal of Woomack to include the name on the payroll
report to the commission and to give notice of injury.
that act as provided by the act; that the only reason why Peck had not received the benefits of
the act was due to the refusal of Woomack to include the name on the payroll report to the
commission and to give notice of injury.
On November 27, 1950, judgment was entered in favor of Peck decreeing that he have all
the benefits of the Nevada industrial insurance act and that the Nevada Industrial Commission
pay him all the benefits to which he was entitled. The court further ordered that the defendant
Woomack under the name of the Pioneer Hotel file an amended payroll report for the month
of December, 1946, and the month of January, 1947, showing Peck as an employee for the
days he worked during those months. From this judgment and the subsequent order of the
trial court denying motion for a new trial the commission has appealed.
The only question raised by this appeal is whether the fact that Woomack had never
reported Peck as an employee nor any of the other workmen engaged in the installation of
flues, and had confined his payroll reports to ordinary hotel employees, the premiums for
whose coverage were substantially less than for workmen engaged in the installation of flues,
would preclude a finding that Peck was covered under the Nevada industrial insurance act.
No question is raised as to the failure to give notice of injury and no question is raised as to
whether Peck was in fact an employee of Woomack.
Appellant has assigned to the trial court two errors, as follows: 1. Error in finding that the
plaintiff was covered by the provisions of the act at the time the accident occurred on January
7, 1947. 2. Error in adjudging that the plaintiff have all the benefits under the Nevada
Industrial Insurance Act for and as a result of the injuries received on the 7th day of January,
1947.
The first section to consider is section 2680, N.C.L. 1929, first paragraph: When as in this
act provided, an employer shall accept the terms of this act and be governed by its provisions
every such employer shall be conclusively presumed to have elected to provide, secure
and pay compensation according to the terms, conditions and provisions of this act for
any and all personal injuries by accident sustained by an employee arising out of and in
the course of the employment.
governed by its provisions every such employer shall be conclusively presumed to have
elected to provide, secure and pay compensation according to the terms, conditions and
provisions of this act for any and all personal injuries by accident sustained by an employee
arising out of and in the course of the employment. * * * (Emphasis supplied.)
[Headnotes 1, 2]
This section is subject to only one interpretation in our opinion, and that is that the act is
intended to accomplish complete coverage for all employees of an employer. If the act be
accepted, then under the conclusive presumption provided, it is accepted as to all employees.
This would eliminate any possibility of construing an employer's conduct in failing to list an
employee on his payroll or in failing to make proper segregation of employment as an intent
or as demonstrating intent not to cover that employee or class of employees. The fact that in
this case it can be proved that the employer did not intend to cover Peck therefore cannot be
asserted against the conclusive statutory presumption.
In the case of Pershing Quicksilver Co. v. Thiers, 62 Nev. 382, 152 P.2d 432, the headnote
reads:
Employee who did not file notice of rejection of provisions of industrial insurance act
was conclusively presumed to have elected to take compensation in accordance with
provisions of act. Comp. Laws, sec. 2680(d).
Industrial insurance and workmen's compensation acts have for their purpose the putting
of an end to private litigation between employer and employee, and give to a workman the
right to compensation for injuries suffered in employment, regardless of negligence of
employer. Comp. Laws, sec. 2680, et seq.
Where an injury is compensable under industrial insurance act and injured workman
accepts provisions of act, workman cannot choose as to whether he will sue at common law
or accept compensation under act, and his exclusive remedy is under act."
his exclusive remedy is under act. Comp. Laws, secs. 2680, 2683, 2704, 2706, * * *.
(Emphasis supplied.)
[Headnote 3]
The only question remaining, therefore, is whether by his conduct the employer is to be
deemed to have rejected the provisions of the act. The industrial commission apparently takes
the position that this was done at least so far as concerned Peck or so far as concerned all
employees of Woomack who did not fall within the general classification of hotel employees.
However, under our views with respect to the quoted portion of sec. 2680, it would not be
possible to accept the act in part. If the employer by his conduct rejected the terms of the act it
was rejected in toto and would result in a lack of coverage for any employee of Woomack
whether that employee had been reported or not.
In this connection we are concerned with the language of sections 2680 and 2702. Sec.
2680 provides, failure on the part of any such employer to pay the premiums as by the
provisions of this act required shall operate as a rejection of the terms of the act. Section
2702 provides failure on the part of any such employer to comply with the foregoing
provisions shall operate as a rejection of this act. * * * It is to be noted that in each instance
the rejection is not partial but is a complete rejection of the act or of its terms and could only
accomplish the result that the employer was in the same position he would occupy had he
failed to accept the terms of the act originally.
Sec. 2702. Sec. 21. * * * Every employer electing to be governed by the provisions of this
act, who shall enter into business or resume operations subsequent to July 1, 1925, shall,
before commencing or resuming operations, as the case may be, notify the commission of
such fact, accompanying such notification with an estimate of his monthly pay-roll and shall
make payment of the premium on such pay-roll for the first two months of operations.
Every employer electing to be governed by the provisions of the act shall, on or before
the twenty-fifth day of each month, furnish the Nevada industrial commission with a true and
accurate pay-roll showing the aggregate number of shifts worked during the preceding
months, the total amount paid to employees for services performed during said month, and a
segregation of employment in accordance with the requirements of the commission, together
with the premium due thereon; provided, however, that any employer, by agreement in
writing with the commission, may arrange for the payment of premiums in advance for a
period of more than sixty days. Failure on the part of any such employer to comply with the
foregoing provisions shall operate as a rejection of this act, effective at the expiration of the
period covered by his estimate; and further provided, that if an audit of the accounts or actual
pay-roll of such employer shows the actual premium earned to have exceeded the estimated
advance premium paid, the commission may require the payment of a sum sufficient to cover
such deficit, together with such amount as in its judgment would constitute an adequate
advance premium for the period covered by the estimate. * * * (Emphasis supplied.)
The foregoing provisions referred to in sec. 2702 are: (1) payment of the premiums, and
(2) the filing of a true and accurate payroll with the showing of facts as specified in that
section.
It is contended by the commission that failure on the part of an employer to list an
employee upon his payroll would have the effect of his failure to pay premiums as to that
employee and that this failure or neglect upon the employer's part would therefore result in a
rejection as to such employee under the terms of both sections 2680 and 2702. However,
under the provisions of sec. 2702 the premiums which are to be paid are: (1) those to be paid
for two months in advance pursuant to the employer's own estimate, (2) those payable on
filing the payrolls, and {3) those payable pursuant to commission demand after audit by
the commission of the "true and accurate payroll" submitted by the employer.
payrolls, and (3) those payable pursuant to commission demand after audit by the commission
of the true and accurate payroll submitted by the employer. Nowhere is there any
requirement that premiums be paid otherwise than as there specified. Should an employer
misrepresent the extent of his payroll as submitted he would still have paid the premiums
required by the provisions of the act and if he be in default in any regard under the terms of
the act it would not be a default in payment of premiums required.
The commission contends that failure to include an employee upon the payroll renders that
payroll not a true and accurate one and would result, therefore, in a failure on the part of the
employer to comply with the essential provision of the section for the filing of such a payroll.
This raises the question as to whether the filing of a payroll which, as a matter of fact, is not
true and accurate would operate as an automatic rejection. In our view, this is not the
interpretation to be placed upon this section.
Sec. 2718, N.C.L., provides for the consequences of misrepresentation by an employer, as
follows:
Sec. 2718. Sec. 36. Any employer who shall misrepresent to the department the amount
of pay-roll upon which the premium under this act is based shall be liable to the Nevada
industrial commission in ten times the amount of the difference in premium paid and the
amount the employer should have paid. The liability to the Nevada industrial commission
shall be enforced in a civil action in the name of the Nevada industrial commission. All sums
collected under this section shall be paid into the accident fund.
Under the terms of this section the employer's liability for misrepresentation is a money
liability to the commission and is not an automatic rejection.
Sec. 2702, then, should be construed to read: [the employer shall] furnish the Nevada
industrial commission with a * * * payroll [which he shall, subject to the liability provided
by sec.
the liability provided by sec. 2718, represent to be a true and accurate payroll] showing, etc.
In our view the only alternative to such an interpretation would be to hold that every
untruth or inaccuracy contained in a payroll would accomplish a complete automatic rejection
by the employer. Under our interpretation of the first paragraph of sec. 2680, as we have
quoted it, there would be no room under the act's language to hold that the act is rejected only
as to the employees who are not reported. The employer has either accepted or rejected the
act in its entirety.
Certainly the legislature cannot have intended such a harsh result to follow from
inaccuracies in the payroll. Had it intended partial rejection to follow from the elimination of
an employee's name it would have been extremely simple for the legislature so to provide
expressly and clearly.
The commission argues that under such interpretation the commission would be unduly
burdened with the task of auditing and policing its accounts; that the provisions of sec. 2718
do not adequately protect the commission against deliberate fraud on the part of the
employers. Our problem in this respect remains one of statutory construction and the
ascertaining of legislative intent. Can it be said that the burden placed upon the commission
of auditing and policing its accounts to prevent the fraudulent misrepresentation of payrolls is
so great a burden that the legislature cannot be deemed to have intended the provisions of sec.
2718 to be the full consequences of the filing of a false payroll? In our opinion the burdens
are not so great as to result in such a construction. The Nevada industrial insurance act differs
from the acts of most states providing workmen's compensation. Under the more usual form
of act the insurance is written by private carriers and the form of contract there provided
grants full coverage to all employees injured in the course of their employment. Under such
an act the burden of auditing and policing is absorbed by the carrier in the premium which
it charges.
is absorbed by the carrier in the premium which it charges. Failure to file an accurate payroll
under such circumstances is no defense to the insurance company's obligation to provide
compensation. Certainly, if under such an act the private insurance company can assume the
burden of auditing and policing its accounts there is no reason why the legislature of this state
could not assume that the industrial commission could assume a similar burden. To hold
otherwise would be to hold that the Nevada Industrial Commission cannot be expected to act
with the same degree of efficiency as a private insurance carrier, and also would be to assume
an intent on the part of the legislature to provide a workmen's compensation act which does
not provide the same degree of employee coverage as other types of acts in existence in other
states. We do not feel that such an intent in either respect can be attributed to the legislature.
The commission argues that failure of an employer to make the segregation of employment
required by the act with the result that no employee in the particular class of employment is
reported upon the payroll, results in the employer's failure to accept the act as to that
classification of employee. Again we refer to our construction of the first paragraph of sec.
2680. Regardless of the classification, all employees are conclusively presumed to be covered
by their employer's acceptance of the act. In the absence of any rejection of the act by the
employer the only question would be whether the employee was in fact an employee under
the definition of the term contained in sec. 2688. Under that section the only exception to the
general definition: Every person in the service of an employer, is a person whose
employment is both casual and not in the course of the trade, business, profession or
occupation of his employer. It is conceded that Peck's employment was not casual within
the meaning of the act.
[Headnote 4]
Unquestionably, compensation laws were enacted as a humanitarian measure.
humanitarian measure. The modern trend is to construe the industrial insurance acts broadly
and liberally, to protect the interest of the injured worker and his dependents. A reasonable,
liberal and practical construction is preferable to a narrow one, since these acts are enacted
for the purpose of giving compensation, not for the denial thereof.
The Workmen's Compensation Act, including matters of procedure, is liberally construed,
having due regard to remedial and salutary purposes of the act.
Nevada Industrial Commission v. Adair, 67 Nev. 259, 217 P.2d 348.
See, also: Costley v. Nevada Industrial Commission, 53 Nev. 219, 296 P. 1011; Virden v.
Smith, 46 Nev. 208, 210 P. 129; English v. Industrial Commission, et al., (Arizona) 237 P.2d
815.
We have carefully considered the assignments of error and find them to be without merit.
We think the district court reached a correct result in this case, and finding no error in the
record, the judgment and order appealed from are affirmed.
Badt, C. J., and Merrill, J., concur.
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69 Nev. 12, 12 (1952) Howard v. Howard
FRED ALLEN HOWARD, Appellant, v. LOUISE
ALICE HOWARD, Respondent.
No. 3678
January 17, 1952. 239 P.2d 584.
Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge, department No. 2, setting aside a decree of divorce on account of a false
and fraudulent affidavit for service of summons by publication, and appeal from order
denying new trial.
Louise Alice Howard brought action against Fred Allen Howard to have a divorce
judgment set aside on ground of alleged fraud. From a judgment for the plaintiff, the
defendant appealed. The Supreme Court, Badt, C. J., held that action was barred by three-year
limitations.
Reversed and remanded with instructions.
Hawkins & Cannon, of Las Vegas, and A. Brigham Rose, of Los Angeles, Calif., for
Appellant.
Jones, Wiener & Jones, of Las Vegas, for Respondent.
1. Limitation of Actions.
A statute of limitations commences to run from date of discovery of facts which, in exercise of proper
diligence, would have enabled plaintiff to learn of fraud of defendant, and not from date when fraud is
actually discovered.
Where first wife in seeking to press bigamy complaint against husband on ground of his marriage to
second wife, discovered in August, 1945, that husband had divorced first wife on March 25, 1943, and she
knew where the divorce had been obtained, and she knew that she had never been notified of the
commencement or pendency of such divorce action, she was barred by three-year limitation statute from
maintaining on August 31, 1949, in action to set aside the divorce, on ground of fraud, though she did not
actually discover the alleged fraud until 1949. N.C.L.1929, sec. 8524.
OPINION
By the Court, Badt, C. J.:
Louise Alice Howard obtained a judgment in the court below setting aside a decree of
divorce theretofore obtained in the same court by Fred Allen Howard, appellant.
below setting aside a decree of divorce theretofore obtained in the same court by Fred Allen
Howard, appellant. This appeal is from the judgment setting aside the divorce decree and
from the order denying new trial. To avoid confusion, the parties are referred to by their given
names.
Louise and Fred were married in 1912. Two sons and a daughter, all of whom have
obtained their majority, were the issue of the marriage. Louise and Fred separated in 1925 or
1926, since which time they appear to have made litigation their chief avocation. In 1926
Fred returned with his three children, then minors, from a fishing trip and found his wife gone
and the furniture sold. He commenced an action for divorce in Los Angeles but later
dismissed it. In 1923 Louise had commenced an action in Los Angeles County, California,
against Fred for divorce. She dismissed this action but immediately thereafter filed a second
divorce action, which also sought to set aside a property settlement agreement alleged to have
been obtained by fraud. This action was likewise dismissed by her.
In January, 1936, Louise commenced an action in the superior court of California, in and
for the City and County of San Francisco, against Fred for separate maintenance. In that case
the record indicates an order made in February, 1936, ordering Fred to pay Louise $50 a
month alimony pendente lite. Arrears of several thousand dollars are said to have accrued and
to remain unpaid under this order.
During the period of their separation Fred commenced an action against Louise to evict her
from certain premises occupied by her. The details of this action are lacking, although it is
indicated that it resulted in a judgment evicting her from the premises.
In 1924 or 1925 Fred obtained a Mexican divorce from Louise, but thereafter decided that
the same was ineffective. On August 14, 1945, Fred married one Winifred Davis, and on
November 10, 1949, he obtained an interlocutory decree of divorce from her in the superior
court of Los Angeles County, California, but the district court of appeal of that state on
June 25, 1951, reversed the judgment for want of the plaintiff's compliance with the
statutory requirement for corroboration.
of Los Angeles County, California, but the district court of appeal of that state on June 25,
1951, reversed the judgment for want of the plaintiff's compliance with the statutory
requirement for corroboration. Howard v. Howard, 105 Cal.App.2d 126, 232 P.2d 530.
Winifred also had a divorce action pending against Fred. The cited case affirmed the
judgment denying her a divorce. After Louise discovered that Fred had married Winifred,
Louise caused a criminal complaint to be filed against Fred, charging him with bigamy. She
learned in 1945 that the bigamy charge had been dismissed by the California court upon
submission to that court of Fred's decree of divorce from LouiseFred's marriage to
Winifred therefore appearing not to be bigamous. Fred filed his first Nevada action for
divorce from Louise in the Eighth judicial district court, in and for Clark County, July 6,
1942, being action No. 14405. That action came on for trial on October 6, 1942 before
Honorable George E. Marshall, then district judge of that court. At that time Judge Marshall
cross-examined Fred with reference to the latter's knowledge of his wife's residence and his
attempts to locate her for the purpose of service. Judge Marshall indicated considerable
impatience with the conflicting answers given by the witness, and denied the decree on the
ground that he had not made sufficient effort to locate Louise. On October 20, 1942, just 14
days after Judge Marshall denied the decree in Fred's action No. 14405, Fred filed another
action in the same court, also seeking a divorce from Louise, being action No. 15266. Service
was again ordered by publication, which was completed November 12, 1942, and no
appearance was made by the defendant within 30 days after completion of that publication.
The matter was however not called up for hearing before Honorable Geo. E. Marshall, the
judge of the Eighth judicial district court, but was called up over three months thereafter on
March 25, 1943, when Honorable Harry M. Watson, judge of the Seventh judicial district
court in White Pine County, was occupying the bench temporarily in Clark County, on which
date the case was heard and a decree of divorce from Louise entered.
which date the case was heard and a decree of divorce from Louise entered. Nothing appeared
in the record that might have alerted Judge Watson to the former proceedings before Judge
Marshall or to anything unusual or improper in the service by publication. On August 31,
1949, some six years and five months thereafter, Louise filed her complaint to set aside the
judgment of divorce obtained by Fred, March 25, 1943. This was action No. 46173 in the
Eighth judicial district court of Clark County, and was tried by Honorable A. S. Henderson on
May 18 to 20, 1950. It was submitted on written briefs, and Judge Henderson on March 9,
1951 filed a written decision, pursuant to which findings and judgment setting aside the
former divorce decree were filed on April 20, 1951. On the same date Fred's objections to
Louise's proposed findings were overruled and his motion for new trial denied. The judgment
setting aside the divorce decree ordered that Louise have to and including May 15, 1951
within which to serve and file her answer or otherwise plead to Fred's complaint for divorce.
Louise failed to take advantage of this right, which she had continuously and consistently
sought throughout the proceedings, her default was entered, and on September 15, 1951 Fred
called up his divorce complaint for hearing (being in the same action, case No. 15266) in
which his earlier decree of 1943 had been set aside by the judgment now being considered on
appeal. On the last-named date, Honorable A. S. Henderson again presiding, a decree was
entered granting Fred a divorce from Louise. In the meantime, on June 20, 1951, Fred had
filed his notice of appeal from the judgment here involved which had set aside his 1943
divorce decree. Whether Judge Henderson knew on September 15, 1951 (when he granted
Fred his divorce) that Fred had taken an appeal from Judge Henderson's judgment vacating
Fred's decree granted by Judge Watson, and which appeal, if successful, would have left Fred
with two divorce decrees in the same court against his wife on the identical cause of action
and the identical statement of facts, does not appear. We are justified in concluding that at
this point, although Fred was in his appeal still insisting on the validity of his 1943 decree,
both parties were entirely agreeable to the granting of Fred's 1951 decree.
concluding that at this point, although Fred was in his appeal still insisting on the validity of
his 1943 decree, both parties were entirely agreeable to the granting of Fred's 1951 decree.
If we should reverse the judgment now before us therefore, Fred will be left (at least as a
matter of record) with his 1943 divorce and his 1951 divorce in the same court. If we affirm
the judgment, he will have a divorce decree from Louise as of 1951 instead of as of 1943.
What will happen to his divorce suit against Winifred, apparently still pending in California,
is a matter for the consideration of the California courts. And whatever further litigation may
spring from the fertile minds of the litigants in California, Nevada or elsewhere, or from the
ingenuity of their several attorneys, is likewise a matter for conjecture.
1
When this action
was tried and submitted to Judge Henderson in May, 1950, Judge Henderson was entirely
justified in believing, and apparently did believe, that Louise desired and intended in good
faith to appear and defend the divorce action if given an opportunity so to do.

____________________

1
Although both the record and the testimony are confusing, the litigation appears to include the following
actions:
1. Fred's 1926 suit for divorce from Louise.
2. Louise's 1923 suit for divorce from Fred.
3. Louise's second 1923 suit for divorce from Fred.
4. Louise's 1926 suit for separate maintenance.
5. Fred's eviction suit against Louise.
6. Fred's Mexican divorce suit against Louise.
7. Fred's divorce suit against Winifred.
8. Winifred's divorce suit against Fred.
9. Louise's prosecution of Fred for bigamy.
10. Fred's first Las Vegas divorce suit against Louise. (Denied by Judge Marshall.)
11. Fred's second Las Vegas divorce suit against Louise. (Granted by Judge Watson.)
12. Fred's second Las Vegas divorce suit against Louise. (Granted by Judge Henderson.)
13. Louise's action to vacate Fred's Las Vegas decree.
14. (Pending) Fred's California divorce suit (on retrial after remand) against Winifred.
15. (Right asserted by Louise) Contemplated suit in California by Louise, for divorce and settlement of
property rights.
It will be seen that Fred and Louise have been at bat about the same number of times, with Winifred
occasionally pinch-hitting. Each may be credited with several hits and both are justly chargeable with many
errors. The rules of the game have apparently meant nothing to either of them. To the infinite patience of the
umpires must be credited the fact that both parties have not long since been sent to the showers.
When this action was tried and submitted to Judge Henderson in May, 1950, Judge
Henderson was entirely justified in believing, and apparently did believe, that Louise desired
and intended in good faith to appear and defend the divorce action if given an opportunity so
to do. Her initial attack on Fred's divorce decree was by way of a motion in that suit to open
up the default, set aside the judgment and permit her to answer and defend. Repeatedly in the
notice of motion and the affidavit supporting the same she begged the court for leave to
answer, stated that she had been fraudulently deprived of an opportunity to defend the action
on the merits, that she had a valid defense and that if she had been served or notified she
would have filed an answer and cross complaint. In connection with her motion, she
submitted a proposed answer. Fred appeared specially to oppose the motion on the ground
that more than six months, namely, some four years or more, had elapsed since the entry of
the decree. The record does not clearly indicate what disposition was made of the motion, but
it apparently either was abandoned or properly denied. Lauer v. District Court, 62 Nev. 78,
140 P.2d 953. In her complaint in the separate suit to set aside the decree, the case involved in
this appeal, she again recites that she was fraudulently deprived of an opportunity to defend
the action on the merits, and that had she had notice she would have filed an answer, and that
she had a good and valid defense. As an exhibit, she attached a copy of her complaint for
divorce against Fred in the superior court of Los Angeles County, California, verified June
15, 1923, charging extreme cruelty, with many detailed acts of cruelty set forth, and praying
for a decree of divorce; also a copy of her second 1923 Los Angeles complaint alleging
adultery as well as cruelty.
She annexed as an exhibit to her second divorce complaint in Los Angeles County,
California, a property settlement agreement dated July 20, 1923, which purported to be a
full, final and complete settlement of all their property rights," but which she maintained at
that time was executed by her upon the representation of Fred that the bank required
same before it would make a loan to him, which loan was necessary to supply funds for
his apartment house business, and that Fred assured her at the time that the instrument
would have no force or effect as between them.
property rights, but which she maintained at that time was executed by her upon the
representation of Fred that the bank required same before it would make a loan to him, which
loan was necessary to supply funds for his apartment house business, and that Fred assured
her at the time that the instrument would have no force or effect as between them.
In her answering brief in this court, Louise maintains in support of the judgment setting
aside the divorce decree that by reason of Fred's false statements as to his knowledge of her
residence, she was not notified of the pendency of the divorce proceeding and that she was
otherwise precluded from the opportunity to present her defenses. Supporting Louise's
complaint to set aside the divorce decree, she relies upon her allegations that she had a good
and meritorious defense to Fred's divorce action, and that the record shows that she had in
fact a good and meritorious defense; that she herself might have obtained a decree against the
plaintiff on the ground of three years' separation if she had had an opportunity to defend; that
she now seeks nothing except her day in court; that she should not be denied the right to
be heard in court. Elsewhere in her brief she is purposely vague, insisting that if her
judgment setting aside Fred's decree is sustained, then the entire matter as to grounds for
divorce between the parties is reopened and can be litigated in subsequent procedures.
(Italics supplied.) In oral argument Louise's counsel insisted, while supporting the judgment
setting aside Fred's divorce decree, that the trial court was in error in its provision that she be
allowed certain time to appear, answer or otherwise plead to Fred's divorce complaint; that
she had a right, by reason of Fred's false and fraudulent affidavit for publication, to have the
divorce decree set aside, leaving her free to choose her own forum for prosecuting her own
action for divorce and possibly for other forms of relief. These are apparently the subsequent
procedures she now contemplates. This too apparently accounts for her refusal to exercise
the right given to her by the lower court at her own request to appear in the divorce action
and defend the same.
her by the lower court at her own request to appear in the divorce action and defend the same.
She tendered to the lower court no issue as to any demands for alimony and no issue as to a
division of property rights. Under questioning by the court in her action to set aside the
divorce decree, after stating that she would not again live with her husband if the court set
aside his decree, she answered the court's inquiry as to why she wanted the decree set aside by
saying: I want a California divorce. I do not recognize this divorce because I think I have
property rights. I wasn't consulted whenI was consulted when I was married and I think I
should be consulted when I am divorced.
The written opinion of the trial judge recites Louise's averment that by reason of the
fraudulent affidavit and resultant service by publication she was deprived of an opportunity to
appear and defend, and that had she been served or notified of the pendency of the divorce
action she would have filed an answer, and her further allegation that she had a good and
valid defense. He held that the public interest required that a plaintiff seeking a divorce from
an absent spouse should be confined to the strictest rules and that leniency should be
extended in granting an absent defendant an opportunity to be heard. After signing findings
to the effect that the affidavit for publication of summons was false and fraudulent, his
conclusions of law were that Louise was entitled to judgment setting aside Fred's divorce
decree and permitting plaintiff herein [Louise] to file an answer or otherwise plead to said
complaint. This was followed by formal judgment setting aside the decree and giving Louise
to May 15, 1951, within which to file an answer or otherwise plead to said complaint on file
in action No. 15266.
The record shows that the findings of fact and conclusions of law above referred to were
drawn and submitted by counsel for Fred, and we may assume that the formal judgment was
likewise drawn by his attorneys.
Yet amazingly enough (although Louise took no cross appeal) her attorney earnestly
maintains that the trial court was in error, indeed that it had no jurisdiction, in the matter
of its order permitting her to answer and defend the divorce action.
appeal) her attorney earnestly maintains that the trial court was in error, indeed that it had no
jurisdiction, in the matter of its order permitting her to answer and defend the divorce action.
During the course of the oral argument, members of this court directed the attention of
Louise's counsel to the fact that she affirmatively sought such permission, that she
represented to the district court that such was the primary purpose of her having the divorce
decree set aside, that she had stoutly manifested the same purpose in her prior motion in the
divorce suit to vacate the decree, that she developed and crystallized the same theory in the
findings of fact, conclusions of law and judgment prepared and submitted to the trial judge by
her own counsel and that she could have set up and litigated in the court below any question
of alimony and property rights involved between the parties. Counsel's response was that
even despite these circumstances, the court in the fraud action had no jurisdiction to make any
orders governing Louise's appearance in the divorce action, and that Louise should be
permitted to litigate all matters as to marital and property rights in the courts of California.
Whether or not, as a matter of law, there is any merit to this contention, it was no less an
imposition upon the trial court.
Nor is the attitude of Fred any less amazing. Fred's main concern in this appeal deals more
with his probable relationship to Winifred than to Louise. Unless the judgment setting aside
his divorce decree from Louise is reversed, it would follow that his 1945 marriage to
Winifred was void. This, he asserts, would give her an undue advantage in asserting property
rights as against Fred, though just how this would follow has not been explained. Apparently
he would like a reversal of the judgment vacating his divorce from Louise, thus establishing
that he had legally married Winifred, in order that he may again legally divorce Winifred.
Counsel for Louise too state that there are important property rights to be determined as
between her and Fred, but just what they are and how they will be affected by our action
has not been pointed out.
just what they are and how they will be affected by our action has not been pointed out.
In view of this most bewildering situation, it is not surprising that at the oral argument the
members of the court pressed counsel for some reasonable explanation as to just what either
of the parties sought to accomplish. The responses of counsel simply added to the uncertainty
and the confusion. This court will not take upon itself the task of measuring the degree or the
extent to which either party has exceeded the other in imposing upon the trial court. It is
enough that we make such disposition of the appeal as the record warrants.
Appellant's first eight assignments of error we find to be without merit. His ninth
assignment is that Louise's action to set aside Fred's divorce decree on the ground of extrinsic
fraud is barred by our statute of limitations reading in part: Actions * * * can only be
commenced as follows: * * * Within three years: * * * An action for relief on the ground of
fraud or mistake; the cause of action in such case not to be deemed to have accrued until the
discovery by the aggrieved party of the facts constituting the fraud or mistake. N.C.L., 1929,
sec. 8524.
The fraudulent affidavit filed by Fred resulted in the entry of his divorce decree against
Louise March 25, 1943. Louise alleges in her complaint simply that she did not discover the
fraud till August 10, 1949. The learned district judge found this to be true and held that the
statute did not commence to run until that date. He therefore apparently felt compelled to take
cognizance of Louise's cause of action, and in this, we feel, overlooked some well-recognized
principles of law particularly applicable to the facts of this case. It was obligatory on her
affirmatively to excuse her failure to discover the fraud within three years after it took place
by establishing facts showing that she was not negligent in failing to make the discovery
sooner and that she had no actual nor presumptive knowledge of facts sufficient to put her
on inquiry.
actual nor presumptive knowledge of facts sufficient to put her on inquiry. Hobart v. Hobart
Estate Co., 26 Cal.2d 412, 159 P.2d 958. Such has long been the rule in California under sec.
338 of its code of civil procedure from which the Nevada section was taken. This indeed is
the general rule not only under similar statutes but in equity practice. See 54 C.J.S. 175,
Limitations of Actions, sec. 184, id. 188, sec. 189, where it is said that knowledge by the
defrauded person of facts which in the exercise of proper prudence and diligence would
enable him to learn of the fraud is usually deemed equivalent to discovery.
[Headnote 1]
In August, 1945, when Louise sought to press a bigamy complaint against Fred on account
of the latter's marriage to Winifred, she discovered that Fred had divorced her (Louise) on
March 25, 1943. She knew that this decree had been obtained in the Eighth judicial district
court of the State of Nevada, in and for the county of Clark, sitting at Las Vegas, with the
clerk's office in said city. She knew then that she had never been notified of the
commencement or the pendency of such action. She knew, as she claims, that Fred knew at
the time where she was living. She was no stranger to litigation and was no stranger to
lawyersboth her own and adverse counsel. She waited until 1949, when it apparently suited
her purposes, to send her Los Angeles attorney to Las Vegas to check the 1943 decree and the
proceedings leading up to it. She had had knowledge of those proceedings continuously since
1945. The opportunity for checking them was as available in 1945 as it was in 1949. She
makes no explanation and offers no excuse for the delay. The books are replete with cases
holding, under much less convincing facts, that the statute of limitations commenced to run
from the date of the discovery of facts which in the exercise of proper diligence would have
enabled the plaintiff to learn of the fraud. The learned district judge commented that it was
significant that at the time Louise learned of the 1943 decree, she did not investigate the
Nevada divorce, but he gave no effect to this significance, holding only that she did not
discover the actual fraud perpetrated by the false affidavit for publication of summons
until August, 1949, and that for that reason the statute did not commence to run until
that date.
of the 1943 decree, she did not investigate the Nevada divorce, but he gave no effect to this
significance, holding only that she did not discover the actual fraud perpetrated by the false
affidavit for publication of summons until August, 1949, and that for that reason the statute
did not commence to run until that date.
It is not necessary for us to determine whether or not the court, in order to purge its record
of the fraud, might not have had the authority so to do despite the fact that Louise's action
was barred by the statute. In Smith v. Smith, 68 Nev. 10, 226 P.2d 279, we approved the
action of the same district court in purging its record of an order, fraudulently obtained,
setting aside a prior divorce decree, although the matter was brought to the court's attention
by complaint of a plaintiff whose actions were likewise tainted with fraud. We there refused
to tie the hands of the court by the fraud of the person seeking the relief, holding that such
person merely constituted the instrument which brought the fraud to the court's attention.
However, we have no means of knowing whether the court would have so acted unless it felt
compelled so to do upon Louise's complaint. We do know that the very purpose of the court's
vacating of the 1943 decree obtained by Fred was to grant Louise's further prayer that she be
permitted to appear in that action and defend it. We do know that the district court could not
have had the slightest conception of the attitude or position that Louise would take in this
court, namely, that although she asked leave of the district court to permit her to appear and
defend the divorce action and stated many times that such was the purpose of desiring the
vacating of the decree, the district court was in error in granting her request and had no
authority to go any farther than to set aside the divorce decree. The learned district judge,
though granting the relief sought by Louise, stated: The court is not in sympathy with the
motives of the plaintiff in bringing this action. We are aware of the rule accepted by this
court in Nevada Con. Mining Co. v. Lewis, 34 Nev. 500, 126 P. 105, 111: "A court of equity
will not as a general rule set aside or enjoin the enforcement of a judgment regularly
obtained by default in the absence of a showing of a good and meritorious defense to the
original action.
A court of equity will not as a general rule set aside or enjoin the enforcement of a
judgment regularly obtained by default in the absence of a showing of a good and meritorious
defense to the original action.
An exception to this rule appears to be recognized where fraud is practiced in the very
matter of obtaining the judgment. In such cases the fraud is regarded as having been practiced
on the court as well as upon the injured party. (Black on Judgments, sec. 321; 23 Cyc. 1025.)
However, as we have seen, the district court was impressed throughout the entire
proceedings with Louise's insistence that she had a good and meritorious defense and desired
to press it in the divorce action itself. Although the court did set aside Fred's decree obtained
by his false affidavit, it has up to this time had no opportunity to do anything about Louise's
imposition upon it. One thing the court did do. It subsequently considered Fred's divorce
complaint, in the same action, after Louise refused to appear and defend, and granted Fred his
divorceand that, during the pendency of the appeal to this court from the judgment vacating
the divorce decree and which appeal was apparently never called to the district judge's
attention.
2

[Headnote 2]
We do not find it necessary to speculate upon the courses of action that may still be open
to the district court. Our holding is simply to the effect that Louise's action for fraud was
barred by the statute of limitations, but that the court was, and by our present order still is,
free to take such action as might seem appropriate under all the facts, with reference to
the status of the fraudulent affidavit and the decree thereby obtained.
____________________

2
As part of the record on appeal there was filed in this court by stipulation of the parties a certified copy of
the record in action No. 15266. Although this contains the reporter's transcript of the first divorce hearing
(before Judge Watson) it does not contain the transcript of the second hearing (before Judge Henderson) or any
of the clerk's minutes. Hence we do not know what transpired. The formal judgment of divorce recites that the
court took judicial notice of its judgment setting aside the first divorce decree. It significantly omits any
statement of notice or knowledge of the pendency of the appeal.
free to take such action as might seem appropriate under all the facts, with reference to the
status of the fraudulent affidavit and the decree thereby obtained.
Reversed, and cause remanded to the district court for such further proceedings as to it in
its discretion may seem proper in accordance with the views herein expressed. Each party will
pay his own costs on this appeal.
Eather and Merrill, JJ., concur.
____________
69 Nev. 25, 25 (1952) State v. Koontz
THE STATE OF NEVADA on the Relation of THE TEXAS COMPANY,
A Corporation, Relator, v. JOHN KOONTZ, as Secretary of State of the
State of Nevada, Respondent.
No. 3682
January 29, 1952. 240 P.2d 525.
The State of Nevada on the relation of The Texas Company filed a petition against John
Koontz, as Secretary of State of the State of Nevada, for writ of mandate requiring respondent
to file without fee or charge copies of amendments to relator's articles of incorporation. The
Supreme Court, Merrill, J., held that charge provided by statute was unconstitutional as
applied to relator as violating commerce and due process clauses of federal constitution.
Writ granted.
John S. Sinai and John S. Belford, of Reno, for Relator.
W. T. Mathews, Attorney General, George P. Annand, Robert L. McDonald, Thomas A.
Foley, Deputy Attorneys General, of Carson City, for Respondent.
1. Mandamus.
Where judgment, if recovered by relator foreign corporation in action to recover fees paid under statute
requiring payment of fees for filing copies of amendments to articles of incorporation which were
required to be filed under statute, could not be paid for over 97 years in view of
statutory provision appropriating only $1,000 annually to pay state's portion of
refunds, such remedy was neither speedy nor adequate and petition for writ of
mandate requiring secretary of state to file copies of amendments without fee or
charge could be maintained.
incorporation which were required to be filed under statute, could not be paid for over 97 years in view of
statutory provision appropriating only $1,000 annually to pay state's portion of refunds, such remedy was
neither speedy nor adequate and petition for writ of mandate requiring secretary of state to file copies of
amendments without fee or charge could be maintained. N.C.L.1929, secs. 6637-6644.
2. Courts.
In determining whether statutory requirement that foreign corporation doing local business in state pay a
fee for required filing of copies of amendments to articles of incorporation, which fee was computable
under statute upon total authorized capital stock of corporation, was invalid as constituting a burden upon
interstate commerce as applied to relator foreign corporation, and as being a tax upon property beyond
jurisdiction of state, state supreme court was bound by holdings of United States Supreme Court.
N.C.L.1943-1949 Supp., sec. 1841.
3. Commerce.
While a state may not prohibit a foreign corporation from engaging in interstate commerce, state has
inherent power to prohibit foreign corporation from engaging in intrastate or local commerce within its
boundaries.
4. Corporations.
In admitting foreign corporations to do local business state may impose such conditions as it chooses.
5. Commerce.
Fact that foreign corporation is carrying on interstate commerce within state does not carry with it rights
to engage in intrastate commerce in connection therewith, and such rights remain for state to grant.
6. Commerce.
A state may, as a condition of entrance of a foreign corporation into state to engage in local business,
require payment of a filing fee reckoned upon total authorized capital stock, and even though the
corporation be engaged in interstate commerce, such requirement does not constitute a burden upon such
commerce nor a tax upon property beyond jurisdiction of state.
7. Corporations.
A payment of a charge as a condition of entrance of foreign corporation into state to engage in local
business may be imposed as condition subsequent or as to future, provided such condition was imposed
when corporation originally entered state, and thus in fact constituted condition of original entrance.
8. Commerce; Constitutional Law.
Generally once a foreign corporation is admitted to a state and is engaged therein in both local and
interstate business, a tax by state upon total authorized capital stock of corporation is invalid as violating
both commerce clause and due process clause of federal Constitution.
process clause of federal Constitution. U.S.C.A.const. art. 1, sec. 8, cl. 3; amend. 14.
9. Constitutional Law.
Once a foreign corporation has been permitted to enter state to do local business, and corporation
thereafter engages in local and interstate business, a fee purporting to be entrance fee, provided by a statute
subsequently enacted and based upon its total authorized capital stock, cannot constitutionally be
demanded of it by what would in effect be a retroactive application. U.S.C.A.const. art. 1, sec. 8, cl. 3;
amend. 14.
10. Commerce; Constitutional Law.
Where foreign corporation engaged in interstate commerce was admitted to state to do local business
when state did not require foreign corporation to file copies of amendments to articles of incorporation, and
state thereafter enacted statute requiring filing of such amendments and required payment of filing fee
reckoned upon total authorized capital stock of corporation, such condition to engaging in local business
was unconstitutional as applied to such corporation as violating commerce and due process clauses of
federal constitution. N.C.L.1931-1941 Supp., secs. 7421.01, as amended, laws 1951, chap. 275;
N.C.L.1943-1949 Supp., sec. 1841; U.S.C.A.const. art. 1, sec. 8, cl. 3; amend. 14.
OPINION
By the Court, Merrill, J.:
The Texas Company is a Delaware corporation engaged, generally, in the business of
manufacture and sale of petroleum products and development of petroleum resources. It is
engaged in business in every state of the United States. As hereinafter related, it was admitted
to do local business in the State of Nevada in 1941. The business since then and now carried
on by the company in this state consists of the distribution and sale of products shipped into
the state from outside points. None of its products is produced, manufactured or processed
within the state. Assets of the company located within the state consist solely of products or
merchandise brought into the state and of facilities, such as bulk sales plants and service
stations, used in the local distribution and sale of such products and merchandise.
Nine bulk sales plants located within the state receive products direct through interstate
shipments and distribute them locally to resellers and consumers in their respective
areas.
products direct through interstate shipments and distribute them locally to resellers and
consumers in their respective areas. One of these plants is owned and operated by the
company itself. Of the remaining plants, two purchase the products direct from the company.
The rest operate as consignees of the products received, with title to the products remaining in
the company until delivery by the consignee to the purchaser and with proceeds of sales
collected for the company by the consignee. Of its business in this state, over 97 percent
consists of sales made directly or through consignees. The remaining income is derived from
the operation and leasing of properties within the state.
The business done in Nevada and the assets here located constitute an exceedingly small
percentage of the company's total business and assets. The figures for 1950 (which company
officials estimate will substantially represent the figures for 1951) show that business done in
Nevada (of a total volume of $1,490,277.69) constitutes one-tenth of 1 percent of the
company's total business. Assets owned by the company and here located constitute 2 1/2
hundredths of 1 percent of the company's total assets.
It is clear from the record before us that the greater portion of the business done in this
state constitutes interstate commerce and that such business as is purely local in character is
so closely connected with the interstate operations as practically to constitute an extension of
those operations.
On October 24, 1941, the company's total authorized capital stock was in the sum of
$350,000,000. On that date it qualified itself to do local business within the State of Nevada
by filing with the secretary of state of Nevada a copy of its articles of incorporation pursuant
to the provisions of sec. 1841 N.C.L. 1929. Sec. 1842 N.C.L. 1929 (then as now) required
payment of filing fees by foreign corporations in the same amount as fees paid by domestic
corporations. Sec. 7421.01 N.C.L. 1929, Supp. 1931-1941, provided fees (for the filing by
domestic corporations of articles and of amendments to articles increasing authorized
capital stock) fixed by a graduated scale based upon total authorized capital.
domestic corporations of articles and of amendments to articles increasing authorized capital
stock) fixed by a graduated scale based upon total authorized capital. Upon the filing of its
articles the company accordingly paid the statutory fee of $7,350 computed upon its then total
authorized capital. At that time sec. 1841 N.C.L. 1929 contained no requirements that foreign
corporations file with the secretary of state copies of any amendments which might
subsequently be made of their articles.
Effective March 29, 1949, sec. 1841 N.C.L. was amended to require that:
Any foreign corporation qualified to transact business in this state shall, upon the filing in
the state of its creation of any paper, document or instrument amendatory of, supplemental to,
or otherwise related to the instrument of its creation, and which, pursuant to the laws of the
place of its creation are to be filed or recorded therein shall forthwith file with the secretary of
state of this state a copy thereof, * * *.
At the same time, the amounts of filing fees provided by sec. 7421.01 were substantially
increased by amendment of that section.
Effective April 28, 1949, the company's articles were amended to increase its authorized
capital to $500,000,000, such amendment being accomplished under the laws of Delaware by
filing a copy of such amendment with the secretary of state of Delaware. On October 6, 1949,
the company tendered to respondent secretary of state a copy of said amendment and
demanded that the same be filed without exaction of a fee. Respondent refused to file the
same unless the then statutory fee in the sum of $15,000 were paid.
Effective March 22, 1951, sec. 7421.01 was again amended to increase the amounts of
fees payable by corporations. Effective April 24, 1951, the company's articles again were
amended pursuant to Delaware law to increase its authorized capital to $1,000,000,000. On
June 11, 1951, the company made tender to respondent secretary of state of a copy of its
second amendment with demand that it be filed without exaction of fee.
secretary of state of a copy of its second amendment with demand that it be filed without
exaction of fee. Respondent refused to file unless the then statutory fee in the sum of $97,500
be paid.
The company's demand on both occasions was based upon its contention that the statutory
fee, under the circumstances, was invalid as a violation of the commerce clause of the United
States constitution, art. 1, sec. 8, cl. 3, and of the due process clause of the fourteenth
amendment. Based upon these same contentions the company as relator has now applied to
this court for a writ of mandate requiring respondent to file copies of both amendments
without fee or charge therefor.
Respondent has interposed a demurrer to relator's petition and has also responded upon the
merits. The demurrer challenges the propriety of mandamus in such a case.
Respondent's first contention in this regard is that the duty the performance of which
relator here seeks to compel, that of filing the corporate amendments, cannot be separated
from the obligation to collect the statutory fees for such filing; that the law does not enjoin
any duty upon him such as that relator would impose: a duty to file without collection of fees.
The statutes, however, secs. 1841 and 7421.01, respectively, impose two distinct duties:
that of filing and that of collection of fees. If the filing fee be constitutional, then the
collection thereof properly could be made a condition to the performance of the duty of filing.
On the other hand, if it be held unconstitutional, then its collection could not be regarded as a
proper condition. The duty to file would nevertheless remain: a ministerial act the
performance of which could be compelled by mandamus. We therefore regard this proceeding
as a proper method of determining the constitutionality of the statute requiring the payment of
the fees in question.
Respondent next contends that relator has a plain, speedy and adequate remedy at law
through payment of the statutory fees and thereafter bringing suit to recover them under
the provisions of secs.
of the statutory fees and thereafter bringing suit to recover them under the provisions of secs.
6637-6644 N.C.L. 1929. Relator points out that even should judgment eventually be secured,
the recovery of such judgment would still remain somewhat of a problem. Our attention is
directed to the provisions of sec. 6644 N.C.L. 1929 which states:
For the purpose of paying the state's proportion of any refund of money which may be
made to claimants under this act, the sum of one thousand dollars annually is hereby
appropriated out of any moneys in the general fund of the state treasury not otherwise
appropriated, any surplus therefrom to revert to the general fund.
[Headnote 1]
Even without regard to other demands upon the fund thus provided and assuming its
continued existence out of moneys not otherwise appropriated and that the whole thereof
might annually be applied to payment of relator's claim, it would still appear that over 97
years would be required for relator to recover the amount paid by it. Aside from questions
whether the remedy thus provided be plain and adequate in other respects, relator contends
that the time element alone would preclude it from being regarded as adequate and that it can
hardly be characterized as speedy. With this view we are constrained to agree.
The demurrer of respondent is overruled.
We come, then, to the question of the validity of our statutory requirement of a fee for the
filing by foreign corporations of amendments to their articles of incorporation, so far as that
requirement applies to the relator. Relator's contentions are that, computed as the fee is upon
its total authorized capital stock, it constitutes a burden upon interstate commerce and a tax
upon property beyond the jurisdiction of the state; that accordingly, the requirement violates
both the commerce clause of the United States constitution and the due process clause of the
fourteenth amendment.
[Headnote 2]
In dealing with questions of this federal character we are, of course, bound by the holdings
of the United States supreme court. Charges upon foreign corporations computed upon their
total authorized capital stock have been the subject of an extensive series of decisions by that
court, throughout which the law applying to such charges has developed. Neither the course
of that development, however, nor the rationale of its controlling principles can be said to be
clear and consistent throughout. As was stated by Mr. Justice Van Devanter in the course of
one of the pertinent decisions:
1

Cases involving the validity of state legislation of this character often have been before
this court. The statutes considered have differed greatly, as have the circumstances in which
they were applied, and the questions presented have varied accordingly. In disposing of these
questions there has been at times some diversity of opinion among the members of the court,
and some of the decisions have not been in full accord with others.
Mr. Justice Frankfurter, more recently has made this enlightening comment:
2

Constitutional provisions are often so glossed over with commentary that imperceptibly
we tend to construe the commentary rather than the text.
As a result much confusion has existed among the state courts faced with the necessity for
determining the current state of the law. Many have been the occasions when state courts,
confronted with a new and clarifying federal opinion, have been compelled to overrule their
earlier decisions as erroneous interpretations of the significance of the supreme court's prior
holdings.
Venturing, as we are for the first time, into this uncertain field, we feel justified in
indulging in a more comprehensive discussion of the applicable rules and principles than
would ordinarily be our practice.
____________________

1
International Paper Co. v. Massachusetts, 246 U.S. 135, 38 S.Ct. 292, 293, 62 L.Ed. 624, 629,
Ann.Cas.1918C, 617.

2
State of Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S.Ct. 246, 250, 85 L.Ed. 267.
principles than would ordinarily be our practice. For purposes of clarity, our opinion proper
will be confined to a comparatively brief recital of the pertinent rules and principles (as we
construe them to have emerged from their course of development to date) and shall leave
statements of authoritative source and more detailed explanatory matter to footnotes.
These principles, then, we deem to have been established:
[Headnotes 3-5]
First: While a state may not prohibit a foreign corporation from engaging in interstate
commerce within its boundaries,
3
it does have inherent power to prohibit such a corporation
from engaging in intrastate or local commerce within its boundaries. Accordingly, it may, in
admitting such corporations to do local business, impose upon their admission such
conditions as it may choose.
4
Further, the fact that interstate commerce is already being
carried on within the state, does not carry with it any right to engage in intrastate commerce in
connection therewith. That right remains for the state to grant.
[Headnote 6]
Second: A state may, as a condition of entrance of a foreign corporation to the state for the
purpose of engaging in local business, require payment of a filing fee reckoned upon total
authorized capital stock.
____________________

3
Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203, 45 S.Ct. 477, 69 L.Ed. 916, 44 A.L.R. 1219.

4
This venerable rule is traceable back through countless decisions of the supreme court to Bank of Augusta
v. Earle, 13 Pet. 519, 10 L.Ed. 274, and Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357, 360. In the latter case it was
stated: Having no absolute right of recognition in other States, but dependent for such recognition and the
enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted
upon such terms and conditions as those States may think proper to impose. They may exclude the foreign
corporation entirely; they may restrict its business to particular localities, or they may exact such security for the
performance of its contracts with their citizens as in their judgment will best promote the public interest. The
whole matter rests in their discretion.
reckoned upon total authorized capital stock. Even though the corporation be engaged in
interstate commerce, this does not constitute a burden upon such commerce nor a tax upon
property beyond the state's jurisdiction.
5
Indeed, a charge imposed as a condition of original
entrance cannot be said to burden commerce in any respect: not interstate commerce,
since "entrance" to the state for the purpose of doing local business is not necessary to
the engaging in such commerce {in the sense that permission of the state is required); nor
upon intrastate commerce, since until entrance, such commerce does not exist.
____________________

5
Atlantic Refining Co. v. Virginia, 302 U.S. 22, 58 S.Ct. 75, 77, 82 L.Ed. 24, 28. The language of Mr.
Justice Brandeis in this opinion casts considerable light upon the reasons for such a rule.
* * * Whether the privilege [of engaging in intrastate commerce in Virginia] shall be granted to a foreign
corporation is a matter of state policy. Virginia might refuse to grant the privilege for any business or might
grant the privilege for some kinds of business and deny it to others. [A footnote at this point discloses that
Virginia does, in fact, refuse to foreign corporations the privilege of doing any intrastate public service
business.] It might grant the privilege to all corporations with small capital while denying the privilege to those
whose capital or resources are large. It might grant the privilege without exacting compensation; or it could
insist upon a substantial payment as a means of raising revenue.
As the entrance fee is not a tax, but compensation for the privilege applied for and granted, no reason
appears why the State is not as free to charge $5,000 for the privilege as it would be to charge that amount for a
franchise granted to a local utility, or for a parcel of land which it owned.
* * * The payment required is a single, non-recurrent chargea payment in advance for a privilege
extending into the long future.
No matter how large the company's local business may be, no matter how much, or how often, its issued
capital may be increased, no additional entrance fee is payable. * * * Nor is it unreasonable to base the fee upon
the amount of capital authorized at the time of the application, instead of charging a fee based upon the amount
of the capital then issued, or upon the amount of assets then owned, and exacting later additional fees if, and
when, more capital stock is issued or more assets are acquired. By fixing the fee in accordance with the capital
authorized at the time of the application for admission, the State relieves itself of the necessity of keeping watch
of changes in the future in these respects.
It is contended that a fee measured solely by the amount of the corporation's authorized capital stock
necessarily burdens interstate commerce. In support of that contention it is said that the authorized capital stock
represents property located in forty-seven States and several foreign countries used in both interstate and foreign
commerce. But this is not true. Authorized capital has no necessary relation to the property actually owned or
used by the corporation; furthermore, the fee for which it is the measure represents simply the privilege of doing
a local business. Because the entrance fee does not represent either property or business being done, it is
immaterial that in fixing its amount no apportionment is made
of original entrance cannot be said to burden commerce in any respect: not interstate
commerce, since entrance to the state for the purpose of doing local business is not
necessary to the engaging in such commerce (in the sense that permission of the state is
required); nor upon intrastate commerce, since until entrance, such commerce does not exist.
____________________
between the property owned or the business done within the State and that owned or done elsewhere.
The entrance fee is obviously not a charge laid upon interstate commerce; nor a charge furtively directed
against interstate commerce; nor a charge measured by such commerce. Its amount does not grow or shrink
according to the volume of interstate commerce or the amount of the capital used in it. The size of the fee would
be exactly the same if the company did no interstate commerce in Virginia or elsewhere. The entrance fee is
comparable to the charter, or incorporation, fee of a domestic corporationa fee commonly measured by the
amount of the capital authorized. It has never been doubted that such a charge to a domestic corporation
whatever the amount is valid, although the company proposes to engage in interstate commerce and to acquire
property also in other states. * * *
* * * As has been shown, the amount of the entrance fee is not measured by property, either within or
without the jurisdiction; and it is not a tax upon property. It is payment for an opportunity granted.
Nor is it a charge arbitrary in amount. The value of the privilege acquired is obviously dependent upon the
financial resources of the corporationnot only upon the capital possessed at the time of its admission to do
business, but also upon the capital which it will be in a position to secure later through its existing authority to
issue additional stock. Obviously the power inherent in the possession of large financial resources is not
dependent upon, or confined to, the place where the assets are located. * * * Great power may be exerted by the
company in Virginia although it has little property located there. And the value to it of the privilege to exert that
power is not necessarily measured by the amount of the property located, or by the amount of the local business
done, in Virginia.
Dealing with what Mr. Justice Brandeis characterized as the privilege of exerting great financial power, the
court stated in Ford Motor Co. v. Beauchamp, 308 U.S. 331, 336, 60 S.Ct. 273, 276, 84 L.Ed. 304, 306:
In a unitary enterprise, property outside the state, when correlated in use with property within the state,
necessarily affects the worth of the privilege within the state. Financial power inherent in the possession of assets
may be applied, with flexibility, at whatever point within or without the state the managers of the business may
determine. For this reason it is held that in entrance fee may be properly measured by capital wherever located.
[Headnote 7]
Third: It is not necessary that such a condition of entrance be wholly precedent to
entrance.
6
Such conditions may be imposed as conditions subsequent or as to the future,
provided they were so imposed at the time of the corporation's original entrance to the state
and thus in fact constituted conditions of original entrance.
7
The effect of the occurrence
of circumstances bringing such conditions subsequent into play is, theoretically, to place
the corporation outside the state and once again seeking entrance.
____________________

6
The language and implications of Hanover Fire Insurance Co. v. Carr, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed.
372, to the contrary notwithstanding.

7
Lincoln National Life Insurance Co. v. Read, 325 U.S. 673, 65 S.Ct. 1220, 89 L.Ed. 1861; Montgomery
Ward & Co. v. Corporation & Securities Commission, 312 Mich. 117, 20 N.W.2d 127; See also: Asbury
Hospital v. Cass County, 326 U.S. 207, 66 S.Ct. 61, 90 L.Ed. 6. The Lincoln National Life Insurance Co. case
and the Hanover Fire Insurance Co. case dealt with a different type of tax and involved a different constitutional
provision: the equal protection clause. They where, however, concerned with the matter of entrance fees. In the
latter case it was stated: (47 S.Ct. 183)
In subjecting a law of the state which imposes a charge upon foreign corporations to the test whether such a
charge violates the equal protection clause of the Fourteenth Amendment, a line has to be drawn between the
burden imposed by the state for the license or privilege to do business in the state and the tax burden which,
having secured the right to do business, the foreign corporation must share with all the corporations and other
taxpayers of the state. With respect to the admission fee, so to speak, which the foreign corporation must pay to
become a quasi citizen of the state and entitled to equal privileges with citizens of the state, the measure of the
burden is in the discretion of the state and any inequality as between the foreign corporation and the domestic
corporation in that regard does not come within the inhibition of the Fourteenth Amendment; but after its
admission, the foreign corporation stands equal and is to be classified with domestic corporations of the same
kind.
In this class of cases, therefore, the question of the application of the equal protection clause turns on the
stage at which the foreign corporation is put on a level with domestic corporations in engaging in business within
the state.* * * the question * * * whether the law complained of is a part of the condition upon which admission
to do business of the state is permitted and is merely a regulating license by the state to protect the state and its
citizens in dealing with such corporation, or whether it is a tax law for the purpose of securing contributions to
the revenue of the state as they are made by other taxpayers of the state.
The court held the tax in question was not a condition upon which admission to do business in the state was
permitted and consequently held it invalid as a violation of the equal protection clause.
stances bringing such conditions subsequent into play is, theoretically, to place the
corporation outside the state and once again seeking entrance. It once again, theoretically, is
in its original position of seeking the initial right to engage in local business. Thus such
conditions subsequent cannot be said to burden interstate commerce or constitute
unconstitutional conditions of entrance any more than upon the corporation's original
entrance to the state. The position of the corporation is deemed to remain the same.
8
[Headnote S]
[Headnote S]
____________________
In the Lincoln National Life Insurance Co. case, the court considered an Oklahoma statute providing an
entrance fee of $200 for foreign insurance companies and thereafter annual entrance fees computed on the
gross premiums received during the preceding calendar year. Domestic corporations were exempt from this fee.
The tax was attacked as violating the equal protection clause. The supreme court upheld the tax. The Hanover
Fire Insurance Co. case was distinguished, the court pointing out that there the foreign corporation, upon being
admitted to the state, had received an unequivocal license to do business. In the present case each annual
license, pursuant to the provisions of the Oklahoma constitution, was granted on condition.* * * The court
quoted from Fire Association of Philadelphia v. New York, 119 U.S. 110, 119, 7 S.Ct. 108, 113, 30 L.Ed. 342,
347, as follows:
The State, having the power to exclude entirely, has the power to change the conditions of admission at any
time, for the future, and to impose as a condition the payment of a new tax, or a further tax, as a license fee. If it
imposes such license fee as a prerequisite for the future, the foreign corporation, until it pays such license fee, is
not admitted within the State or within its jurisdiction. It is outside, at the threshold, seeking admission, with
consent not yet given.

8
Application to the fee involved in the case at bar of this principle and of the law of the Lincoln National Life
Insurance Co. case, involves the determination that such a filing fee constitutes a valid condition subsequent to
the original admission of the corporation to the state: a condition as to the future upon which the corporation's
admission to do business was permitted. Such is the clear inference of the language of Mr. Justice Brandeis in
the Atlantic Refining Co. case as quoted in footnote 5. If one accepts the propriety of the fee there involved as a
condition precedent to original entrance, and the compelling reasons for its propriety as there set forth, it must
follow that a state properly may protect itself as to the future in such respects by the requirement that
amendments to articles be filed and that fees be paid therefor computed upon the increase in authorized capital.
Such was the precise holding in Montgomery Ward & Co. v. Corporation & Securities Commission, supra.
[Headnote 8]
Fourth: However (subject to certain rather vaguely delineated exceptions),
9
once a
foreign corporation is admitted to a state and is engaged therein in both local and interstate
business, a tax by that state based upon the total authorized capital stock of the corporation is
invalid as a violation of both the commerce clause and the due process clause.
10

[Headnote 9]
Fifth: Under the preceding rule, once a foreign corporation has been granted permission to
enter a state for the purpose of doing local business and thereafter engages in both local and
interstate business, a fee purporting to be an entrance fee, provided by a statute
subsequently enacted and based upon its total authorized capital stock cannot constitutionally
be demanded of it by what would in effect be a retroactive application.
11

In application of these principles to the case at bar, it may well be argued that in the case
of a fee charged upon increase of authorized capital, it is charged upon the original
entrance of the corporation in its new and more powerful form; that the corporation upon
amendment of its articles becomes in effect a new corporation and that so long as the
requirement of a fee existed at the time its articles were amended it, in effect, existed at
the time of entrance and constitutes a true condition precedent of original entrance of the
corporation in its new form.
____________________

9
Indicating generally that the charge in question had by its terms provided a reasonable segregation of local
from interstate business and confined its application to the local business thus segregated. Baltic Mining
Company v. Massachusetts, 231 U.S. 68, 34 S.Ct. 15, 58 L.Ed. 127; Kansas City, Fort Scott & Memphis
Railway Co. v. Botkin, 240 U.S. 227, 36 S.Ct. 261, 60 L.Ed. 617; Cheney Bros. Co. v. Massachusetts, 246 U.S.
147, 38 S.Ct. 295, 62 L.Ed. 632. (Compare also: St. Louis Southwestern Railway Co. v. Arkansas, 235 U.S. 350,
35 S.Ct. 99, 59 L.Ed. 265; Air-Way Electric Appliance Corp. v. Day, 266 U.S. 71, 45 S.Ct. 12, 69 L.Ed. 169;
Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412, 57 S.Ct. 772, 81 L.Ed. 1193, 112 A.L.R. 293; Ford
Motor Co. v. Beauchamp, supra.)

10
International Paper Co. v. Massachusetts, supra.

11
Western Union Telegraph Co. v. Kansas, 216 U.S. 1, 30 S.Ct. 190, 54 L.Ed. 355; Pullman Co. v. Kansas,
216 U.S. 56, 30 S.Ct. 232, 54 L.Ed. 378; Ludwig v. Western Union Telegraph Co., 216 U.S. 146, 30 S.Ct. 280,
54 L.Ed. 423; Looney v. Crane Co., 245 U.S. 178, 38 S.Ct. 85, 62 L.Ed. 230; Cudahy Packing Co. v. Hinkle,
278 U.S. 460, 49 S.Ct. 204, 73 L.Ed. 454. As stated by Mr. Justice White in his concurring opinion in Western
Union Telegraph Co. v. Kansas, the leading case on the subject: (30 S.Ct. 190, 207)
[The rule simply prevents] the state from driving out the corporation which is in the state by imposing upon
it arbitrary and unconstitutional conditions, when upon no possible theory could the right to exact them exist,
except upon the assumption that the corporation is not in the state, and that the illegal exactions are the price of
the privilege of allowing it to come in.
it may well be argued that in the case of a fee charged upon increase of authorized capital, it
is charged upon the original entrance of the corporation in its new and more powerful form;
that the corporation upon amendment of its articles becomes in effect a new corporation and
that so long as the requirement of a fee existed at the time its articles were amended it, in
effect, existed at the time of entrance and constitutes a true condition precedent of original
entrance of the corporation in its new form.
Upon this argument, however, we regard the case of Cudahy Packing Co. v. Hinkle, 278
U.S. 460, 49 S.Ct. 204, 73 L.Ed. 454 (supra, footnote 11), as controlling. Factually, that case
would appear to be on all fours with the case before us. The Cudahy Packing Company was
admitted to do business in the State of Washington in 1916 when its authorized capital stock
was $20,000,000. Subsequently its authorized capital was, by amendment of its articles,
increased to $45,000,000. In 1925, Washington enacted a law requiring the filing by foreign
corporations of all amendments to articles increasing authorized capital stock and the
payment therefor of the same graduated fee payable upon the filing of original articles. Fees
were demanded of the company which then brought suit for an injunction. In the United
States supreme court the fee was held unconstitutional upon the authority of Looney v. Crane
Co. (supra, footnote 11).
The action taken by the court in that case is clarified by the opinion in the Atlantic
Refining Co. case (from which we have already quoted at length, supra, footnote 5). There it
was stated: (82 L.Ed. 24, 31)
The position of the company in the case at bar differs radically from that of the foreign
corporation involved in Cudahy Packing Co. v. Hinkle, 278 U.S. 460, 73 L.Ed 454, 49 S.Ct.
204, Supra, and from those in the other decisions of this court on which appellant relies. In
each of those cases the corporation had, before the exaction held unconstitutional, entered the
state with its permission to do local business and pursuant to that permission had acquired
property and made other expenditures.
permission to do local business and pursuant to that permission had acquired property and
made other expenditures. Their property and the local business were found to be so closely
associated with this interstate business done there that the exaction burdened it. The exaction,
although called in some of those cases a filing fee, was in each case strictly a tax; for it was
imposed after the admittance of the corporation into the State. * * * [Emphasis supplied.]
It would, therefore, appear clear that for a charge reckoned upon total authorized capital
stock (applied to a foreign corporation engaged in both local and interstate business) to avoid
violation of the commerce and due process clauses it must have existed as a condition (either
precedent or subsequent) of the corporation's original admission to the state. If the
corporation's admission originally was free from such a condition, the condition may not be
subsequently imposed. Even though the charge partake of all the characteristics of an entrance
fee, its imposition under such circumstances does constitute a burden upon interstate
commerce and a tax upon property beyond the boundaries of the state.
This conclusion can, we feel, be rationalized. The corporation, even with its changed
characteristics and vastly increased power, remains the same person already granted entrance
to the state. The local business there developed and the interstate business with which it has
become connected are in the same hands, even though those hands may vastly have increased
in strength. The state at the time of original entrance of the corporation imposed no
conditions upon such change of characteristics although such conditions were within the right
of the state to impose. Having, at the time of entrance, failed to impose such conditions, the
corporation was admitted unconditionally and unequivocally in such respect.
[Headnote 10]
Such are the circumstances in the case before us. The state at the time of relator's original
admission imposed no requirement as to the filing of amendments to corporate articles of
foreign corporations. This requirement, together with the fee imposed therefor, was enacted
after the corporation's admission to the state. Such a condition to the engaging in local
business imposed under these circumstances must be held to violate the commerce and due
process clauses of the United States constitution and the fourteenth amendment.
It is ordered that the writ of mandate issue as prayed.
Badt, C. J., and Eather, J., concur.
____________
69 Nev. 41, 41 (1952) Cladianos v. Friedhoff
PETE CLADIANOS, Appellant, v. GEORGE W.
FRIEDHOFF, Respondent
No. 3664
January 31, 1952. 240 P.2d 208.
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
department No. 2.
Action for breach of contract under which plaintiff was to perform personal services for
defendant. From a judgment for plaintiff, defendant appealed. The Supreme Court, Merrill, J.,
held, inter alia, that defendant had been guilty of a breach of the contract of employment by
virtue of which any tender of performance by plaintiff, which otherwise might have been
required, was excused.
Judgment affirmed.
Sidney W. Robinson, of Reno, for Appellant.
John S. Halley, of Reno, for Respondent.
1. Contracts.
It is principle of fundamental justice that if promisor is himself cause of failure of performance, either of
obligation to him or of condition upon which his own liability depends, he cannot take advantage of failure,
and therefore any affirmative tender of performance is excused when performance has, in effect, been
prevented by other party to contract.
2. Master and Servant.
A contract of employment to commence at an indefinite date in future, the fixing of which date is
dependent upon circumstances beyond control of parties, demands notice from employer to employee of
fact that circumstances permit commencement.
3. Contracts.
Where construction of motel addition had been discontinued several times because of government
controls, and after the third such discontinuance motel owner proceeded with construction of addition
without notifying contractor who had been hired to supervise construction, owner thereby breached
contract of employment, and, by virtue of such breach, any tender of performance by contractor, which
otherwise might have been required, was excused.
4. Contracts.
without notifying contractor who had been hired to supervise construction, contractor was under no
obligation to protest and negotiate after such breach, and contractor's right to recover for breach was not
affected by his apparent acceptance thereof.
5. Contracts.
Where it is other party to contract who is guilty of breach or prevention of performance, complaining
party is not limited to quantum meruit, and while he may elect to recover in quantum meruit he may also
elect to stand upon contract.
6. Damages.
without notifying contractor who had been hired to supervise construction, contractor would be entitled to
recover, in action for breach of contract, not merely quantum meruit for services actually performed by him
but contractual 10 percent of entire cost of construction, as originally agreed.
7. Damages.
The amount which would have been received if contract had been kept is measure of damages if contract
is broken, and this means value of contract, including profits and advantages which are its direct results and
fruits.
OPINION
This is an action brought by the respondent, Friedhoff, as plaintiff asking damages for
breach of contract. The contract involved was one for the performance of personal services by
Friedhoff to appellant, Cladianos. The trial court, hearing the case without a jury, found for
Friedhoff and granted judgment in the sum of $7,500 (plus the additional sum of $176.11
which is not in dispute). This appeal is from that judgment and from the court's subsequent
order denying motion for new trial. The parties will be referred to by name.
The questions raised upon this appeal are whether, as contended by Cladianos, a tender of
performance by Friedhoff was necessary under the circumstances; and whether the measure
of damages should not be confined to quantum meruit for the services actually performed by
Friedhoff.
Friedhoff is a duly licensed contractor engaged in business in the city of Reno. Cladianos
is the owner and operator of El Rancho Motel in that city. On or about February 10, 1946, the
parties entered into a contract whereby Cladianos employed Friedhoff to render services in a
supervisory capacity for the construction of a 20-unit addition to the motel. Friedhoff was to
be compensated in an amount equal to 10 percent of the total cost of construction.
Friedhoff entered into performance of the contract on or about April 1, 1946, laid out the
work to be performed in accordance with architect's plans provided to him by Cladianos,
engaged cement, carpentry, brick, plumbing, electrical and other subcontractors and entered
into agreements with them as to the time of performance and their charges. Work proceeded
in this manner from April 1, 1946, to May 15, 1946, under Friedhoff's supervision.
On the last-mentioned date the parties were notified by the Civilian Production
Administration, a federal agency, that the construction was in violation of orders of that
agency and must be discontinued.
agency, that the construction was in violation of orders of that agency and must be
discontinued. Pursuant to that notice, construction was discontinued on that date.
On August 10, 1946, Cladianos notified Friedhoff that authority had been received from
the agency to proceed with construction. Construction thereupon continued under Friedhoff's
supervision until February 4, 1947, at which time Cladianos notified Friedhoff that he had
again been ordered to discontinue construction.
Effective July 1, 1947, the Civilian Production Administration was abolished and all
controls on construction were lifted. On July 10, 1947, Cladianos proceeded with
construction of the motel addition. He did not notify Friedhoff of his action in this regard,
however, and from that date until completion of the structure, work continued without
Friedhoff's supervisory services. The total cost of the construction as finally completed was
$78,433.60.
While Friedhoff was not notified that construction was recommencing on July 10, 1947,
he subsequently learned of that fact by personal observation in driving past the site of
construction and from conversations had with certain subcontractors. He also learned from
those conversations that Cladianos had advised the subcontractors that Friedhoff was no
longer in charge of the job. Friedhoff never thereafter discussed the matter with Cladianos or
made formal tender of his services.
In the trial court Cladianos contended that the contract by its terms was subject to
termination at any time and that it had been expressly so terminated by him prior to July 10,
1947. This contention was denied by Friedhoff and the trial court by its findings decided this
factual issue in Friedhoff's favor. No assignment of error is made in this regard and we
therefore must accept the terms of the contract as alleged by Friedhoff and found by the trial
court: to cover the whole of the construction with compensation computed upon the total cost
thereof.
Cladianos contends that, notwithstanding the existence of the agreement and its scope as
determined below, Friedhoff is not entitled to rely on such contract and that his recovery
should be limited to quantum meruit for the services actually performed by him prior to
discontinuance of work on February 4, 1947. Two arguments are advanced in support of this
contention:
First: That to entitle him to rely on breach of the contract, Friedhoff must have tendered
his services to Cladianos, thus giving actual notice that he was ready, able and willing to
proceed with his side of the agreement. The nature of this tender is set forth in 12 Am.Jur.
891 (Contracts, sec. 334), as follows:
The word tender' as used in such connection does not mean the same kind of offer as
when it is used in reference to the payment or offer to pay an ordinary debt due in money,
where the money is offered to a creditor who is entitled to receive it, nothing further remains
to be done, and the transaction is completed and ended; but it means only a readiness and
willingness accompanied with an ability on the part of one of the parties to do the acts which
the agreement requires him to perform, provided the other will concurrently do the things
which he is required by it to do, and a notice by the former to the latter of such readiness.
Such readiness, ability, and notice are sufficient evidence of, and indeed imply, an offer or
tender in the sense in which those terms are used in reference to mutual and concurrent
agreements. It is not an absolute, unconditional offer to do or transfer anything at all events,
but it is, in its nature, conditional only, and dependent on, and to be performed only in case
of, the readiness of the other party to perform his part of the agreement.
[Headnote 1]
The law is clear, however, that any affirmative tender of performance is excused when
performance has in effect been prevented by the other party to the contract. See: 3 Williston
on Contracts (Rev.Ed.) 1952 (sec.
677), 2325 (sec. 832); 17 C.J.S. 986, (Contracts, sec. 481); 12 Am.Jur. 889, (Contracts, sec.
333).
As is stated by Mr. Williston (supra, sec. 677): It is a principle of fundamental justice that
if a promisor is himself the cause of the failure of performance, either of an obligation due
him or of a condition upon which his own liability depends, he cannot take advantage of the
failure.
In this respect it is stated in Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59, 38 N.E.
773, 779, 30 L.R.A. 33, that the term prevented from performing does not mean:
* * * that there must be physical prevention, but that any acts, conduct, or declarations of
the party, evincing a clear intention to repudiate the contract, and to treat it as no longer
binding, is a legal prevention of performance by the other party. 38 N.E. at 779.
* * * It seems clear both upon principle and by authority, that where one party to an
executory contract refuses to treat it as subsisting and binding upon him, or, by his act and
conduct, shows that he has renounced it, and no longer considers himself bound by it, there is,
in legal effect, a prevention of performance by the other party. And it can make no difference
whether the contract has been partially performed, or the time for performance has not yet
arrived, nor is it important whether the renunciation be by declaration of the party that he will
be no longer bound, or by acts and conduct which clearly evince that the determination has
been reached, and is being acted upon. 38 N.E. at 780.
* * * a refusal on the part of the defendant to perform obviated the necessity of
performance, or tender of performance, on the part of the plaintiff, after such refusal. 38
N.E. at 782.
[Headnote 2]
It should be obvious that a contract of employment to commence at an indefinite date in
the future, the fixing of which date is dependent upon circumstances beyond the control of the
parties, demands notice from the employer to the employee of the fact that circumstances
permit commencement: notice of the time when such employment is to commence.
employer to the employee of the fact that circumstances permit commencement: notice of the
time when such employment is to commence. Clearly, Friedhoff was awaiting word from
Cladianos that the latter was prepared to continue with construction. Friedhoff testified that
he was ready, able and willing to proceed. He had twice before, during the course of the
contract, demonstrated that he was ready, able and willing to proceed. To demand tender in
the absence of any notice from Cladianos would be to attribute to Friedhoff clairvoyant and
telepathic powers which even in these enlightened days of extrasensory perception would
appear to be considerably beyond the reach of our fictional reasonable man.
It is clear from the record, that proceeding as he did without notice to Friedhoff, Cladianos
deliberately intended to dispense with Friedhoff's services. This quite apparently was the view
of the trial court which found:
* * * that on or about July 10, 1947, the defendant wrongfully and without cause or
excuse terminated the employment of the plaintiff and rescinded the aforesaid contract.
That the plaintiff has always been ready, willing and able to perform all of the services
required of him under the aforesaid agreement, but defendant has refused and neglected to
permit plaintiff to perform said services and unlawfully and without cause or excuse,
terminated said contract with the plaintiff; * * *.
[Headnote 3]
We must conclude that by proceeding as he did on July 10, 1947, Cladianos was guilty of
a breach of the contract of employment; that by virtue of his breach and his prevention of
Friedhoff's performance, any tender of performance by Friedhoff which otherwise might have
been required was excused.
[Headnote 4]
Cladianos, however, contends that tender should have been made by Friedhoff as soon as
he learned through his own sources of information of the fact that construction had
recommenced.
his own sources of information of the fact that construction had recommenced. By that time,
however, the contract had already been broken and Friedhoff's right to recover damages had
been brought into existence; tender had already been excused. It would appear that the true
basis for Cladianos's objection to Friedhoff's passive acceptance of the breach is not that he
failed to make timely tender of his services, but that he failed to protest the breach so that
some discussion of the parties' respective legal rights might have been had and some
adjustment thereof negotiated. Friedhoff, however, was under no obligation to protest and
negotiate. Cladianos may well have been lulled into a comforting sense of legal security by
such failure to protest. He possessed, however, no right of protection against being so lulled.
Nor can he say that his position was in any respect changed in reliance on his sense of
security. His position was established when he proceeded without notice to Friedhoff and his
course, thus established, continued to the completion of the work without regard to
Friedhoff's apparent acceptance of the breach.
[Headnotes 5, 6]
Second: Cladianos contends that since Friedhoff did not fully perform his part of the
contract, he is limited to quantum meruit for the services actually performed by him.
Emphasis is laid upon the fact that a substantial portion of the construction was completed
after July 10, 1947, and without the benefit of any services on the part of Friedhoff. To allow
him the contractual 10 percent of the cost of that portion of the construction would be
improper and unjust, it is contended.
The authorities cited by Cladianos in support of this contention have to do with the rule of
partial performance. They are cases, for the most part, where the party seeking compensation
himself abandoned the contract before performing fully or where his performance in other
respects fell short of complete performance. In cases such as the one before us, where it is the
other party to the contract who is guilty of the breach or of prevention of performance,
the complaining party is not limited to quantum meruit.
party to the contract who is guilty of the breach or of prevention of performance, the
complaining party is not limited to quantum meruit. True, he may elect to recover in quantum
meruit (as certain of appellant's authorities indicate) but may also elect to stand upon the
contract. See: 9 Am.Jur. 74 (Building and Construction Contracts, sec. 117).
[Headnote 7]
The measure of damages here applicable is that applied in Bradley v.
Nevada-California-Oregon Railway, 42 Nev. 411, 422; 178 P. 906, 909, where it is stated:
The amount which would have been received if the contract had been kept is the measure
of damages if the contract is broken, and this means the value of the contract, including the
profits and advantages which are its direct results and fruits. 8 R.C.L. 452. And in case of
contracts like this the loss is, among other things, the difference between the cost of doing the
work and the price to be paid for it. This difference, we apprehend from the evidence, was the
inducement and real consideration which caused the contractor to enter into the contract, and
to deprive him of it, when the owner put an end to the work without his fault, would be
unjust. Hinckley Co. v. P. B. & S. Co., 121 U.S. 264, 275, 7 Sup.Ct. 875, 30 L.Ed. 967, 970.
Mr. Sutherland, in his work on Damages, vol. 1, 4th ed. sec. 66, says:
Where a party has contracted to perform labor from which a profit is to spring as a direct
result of the work done at a contract price, and is prevented from earning this profit by the
wrongful act of another party, his loss is a direct and natural result which the law will
presume to follow the breach of the contract; and he is entitled to recover it without special
allegations in his declaration. This he will be entitled to establish by showing how much less
than the contract price it will cost to do the work or perform the contract.'
In the case at bar no showing has been made as to the cost to Friedhoff of performing the
remainder of the contract and we may assume that no cost was involved.

69 Nev. 41, 50 (1952) Cladianos v. Friedhof
the cost to Friedhoff of performing the remainder of the contract and we may assume that no
cost was involved.
Judgment of the trial court and its order denying motion for new trial are affirmed with
costs.
____________
69 Nev. 50, 50 (1952) Mikulich v. Carner
SEBASTIAN MIKULICH, SEBASTIAN MIKULICH, Doing Business as LAS
VEGAS-TONOPAH-RENO STAGE LINE, DAVID LEE McCONAGHY, Defendants and
Appellants, v. MARY ANN CARNER, Plaintiff and Respondent, and DEWANE BAKER,
Defendant and Respondent.
No. 3640
February 13, 1952. 240 P.2d 873.
Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge, department No. 2, on personal injury verdict and from order denying new
trial.
Mary Ann Carner sued Sebastian Mikulich and others for injuries sustained when the bus
in which plaintiff was riding collided with an approaching truck. From a judgment for
plaintiff, the bus owner appealed. The Supreme Court, Badt, C. J., held that the truck driver's
statement that the cause of the accident was the bright lights of the bus was inadmissible as a
conclusion.
Reversed and remanded.
See also 68 Nev. 161.
Clarence Sundean and Leo A. McNamee, both of Las Vegas, for Defendants and
Appellants.
Morse and Graves, of Las Vegas, for Plaintiff and Respondent.
Bryan and Cory, Edwin J. Dotson, of Las Vegas, for Defendant and Respondent.
1. Evidence.
Generally, a witness must testify to evidentiary facts and not to his conclusions, opinions or inferences.
2. Evidence.
In bus passenger's action against bus company and truck driver for injuries sustained when meeting
vehicles sideswiped each other, bus driver's statement that bright lights on bus caused accident was
inadmissible as a conclusion.
3. Evidence.
Where expert or special knowledge is essential to formation of intelligent opinion which would be of aid
to jury, nonexpert witness cannot express his opinion as to cause of a particular accident.
4. Evidence.
The opinion of a nonexpert as to cause of a particular accident is not admissible where facts can be so
fully and sufficiently described that jury can form an intelligent opinion as well as the witness.
5. Appeal and Error.
In bus passenger's action against bus company and truck driver for injuries sustained when meeting
vehicles sideswiped each other, admission of truck driver's opinion as to cause of accident was prejudicial,
in view of fact that judge, when overruling objection, stated that truck driver had said that he knew what
had caused accident, and in view of truck driver's testimony that he had driven for over one million miles,
and such prejudice was not cured by instructions.
OPINION
Respondent Mary Ann Carner was seriously injured while a passenger on a bus owned by
appellant Sebastian Mikulich, doing business as Las Vegas-Tonopah-Reno Stage Line, and
operated by appellant David Lee McConaghy. The injury occurred through a collision of the
bus with a truck and semitrailer owned and operated by Dewane Baker. Baker was a
defendant in the action, but no verdict was returned or judgment rendered against him. He is
accordingly named herein as a respondent. The parties will be referred to as they appeared in
the court below or by their names. Forest Elaine Purdy, who was also a passenger in the bus,
was fatally injured in the same accident. An action brought by her father was tried jointly
with the present action and is embraced in the transcript before us, but is not involved in
the present appeal.
brought by her father was tried jointly with the present action and is embraced in the
transcript before us, but is not involved in the present appeal. The plaintiff based her right to
recovery on the alleged joint, concurrent and simultaneous negligence of all of the
defendants. The status of the plaintiff as a passenger on the bus and the operation of the bus
by the defendant bus driver and the defendant bus company as a common carrier and the
ownership and operation of the truck and semitrailer by Baker are admitted by the pleadings.
The pertinent facts are as follows:
The bus was on a scheduled trip from Las Vegas to Reno, and was carrying 19 passengers.
At about 9:20 p. m., on August 10, 1947, on Highway 95, approximately four and one-half
miles south of Beatty, the bus driven by McConaghy was proceeding north and the truck, or
tractor-truck, and semitrailer was being driven south by Baker. The trailer was loaded with
about 11 tons of pumice. When the respective drivers each noticed the approaching lights of
the other vehicle, the north bound bus was entering into a wide gradual curve bearing
easterly, that is to say, to the bus driver's right, and the south bound truck and trailer were on
what is referred to as a straightaway, north of this curve. At this point the two vehicles were
approximately 1,000 to 1,200 feet apart (according to Baker) or 1,800 feet apart (according to
McConaghy). The truck was traveling about 35 miles an hour and the bus about 50 miles an
hour. As the two vehicles approached each other and when they were at a distance of
approximately 400 feet apart, both drivers almost simultaneously operated their light switches
to bring their lights from high beam to low beam. The bus's headlights went to low beam,
but the bus driver testifies that the truck lights changed to a single bright light. This was
corroborated by a subsequent test of the truck's lights. The bus driver further testifies that,
confronted with such single bright light and being unable to determine what it was or what its
position on the vehicle was or what kind of vehicle was approaching him, he switched
back to high beam to see the side of the road and to see what was behind the single
bright light; that he did this for the protection of his passengers; that he then ascertained
for the first time that the vehicle was a truck, that it was in part on his side of the road
and was headed at a slight angle toward his bus.
position on the vehicle was or what kind of vehicle was approaching him, he switched back to
high beam to see the side of the road and to see what was behind the single bright light; that
he did this for the protection of his passengers; that he then ascertained for the first time that
the vehicle was a truck, that it was in part on his side of the road and was headed at a slight
angle toward his bus. He further testified that at that point the two vehicles were about 100 to
125 feet apart (Baker says about 400 feet, later estimated it at 300 feet) when he switched his
lights back to high beam, and that after switching to high beam and identifying the
approaching vehicle as a truck and seeing its position on the road, he applied his brakes,
reducing his speed by one half or two thirds, and drove to the right side of the highway until
his right wheels were on the gravel shoulder.
Although there is some conflict, it is pretty clearly established that the truck was
encroaching to some extent on the bus's lane. The tractor-truck, which was only six feet wide,
cleared the bus, but the forward left corner of the trailer, which was eight feet wide, struck the
forward end of the left side of the bus and ripped parts of it away along virtually its entire
length. The bus's width was eight feet. Under a stipulated formula as to the number of feet a
vehicle would travel under a given speed in miles per hour, it would appear that from
approximately one to three seconds elapsed from the return of the bus's lights to high beam to
the moment of impact.
Some 20 witnesses testified, the case took some 13 days to try and the transcript of the
testimony embraces 820 pages. Many photographs of the vehicles and of the highway were
received in evidence. We need, however, recite only so much of the evidence as is necessary
to the point determined in this opinion. The drivers of the two vehicles were the only
eyewitnesses to the collision.
Dewane Baker, the truck driver and one of the defendants, was called by the plaintiff as an
adverse witness.
He testified in detail as to the size, measurements, capacity, etc., of his truck and trailer; as to
all of his activities on the day of the accident; the times of the day involved; the nature of the
headlights, taillights and clearance lights on his vehicles; his trip south with his load
preceding the accident; the place of the accident in miles from Beatty; the speed of his own
truck and estimated speed of the bus; the condition of the dividing line down the center, the
nature of the highway with respect to being straight or curved; the distance from him of the
bus lights when first observed; the movement of the bus's lights across his windshield as the
bus came around the turn; the dimming of the bus lights and the dimming of his own truck
lights; the fact that the witness switched his lights back to high and then to low again; the
position of his own truck and the position of the bus on the highway (I could determine
where [the bus] was on the highway * * * until he brightened his lights the last time and left
them on * * * We were both in normal position * * * on our right sides of the road.); that he
applied his brakes and was engaged in staying where he belonged; that, as a description of the
collision, there was just a loud crash and we were past, we were separated; that the left
front corner of his trailer hit the bus. He then described bringing his truck and trailer to a stop
and what was done thereafter. He was unable to testify of his own knowledge as to where his
truck and trailer were at the moment of the impact on the highway. He was then asked: From
the time that the bus driver put his lights back on bright to the time of the impact were you or
were you notwere you blinded by those lights? And he answered, I absolutely was. He
then stated that after he was blinded by the bus lights he looked at the right side of the road
alternately and back at the bus to keep him in location, but I was blinded so bad that I couldn't
determine his location. He testified that he did not know whether he attempted in any way to
veer his vehicle to the right of the highway nor could he say what the bus driver did
because he, Baker, was blinded.
way to veer his vehicle to the right of the highway nor could he say what the bus driver did
because he, Baker, was blinded.
All of the foregoing testimony was given without objection. The following then took
place:
Q. Mr. Baker, do you have any opinion, please answer this question yes or no, as to what
caused that accident, that collision? A. Yes.
By Mr. Sundean: Object on the ground it is calling for a conclusion. It is a matter entirely
in the province of the jury.
By the Court: Objection sustained.
By Mr. Graves: Q. Do you know what caused the accident, Mr. Baker?
By the Court: He can answer it yes or no, if he knows what caused the accident.
A. Yes.
By Mr. Graves: Q. Please state.
By Mr. McBain: I object, Your Honor, calling for a conclusion of law, invading the
province of the jury.
By the Court: That objection is overruled. He says he knows what caused it.
By Mr. Graves: Q. What caused it? A. Bright lights.
By Mr. Sundean: I will move to strike that answer on the ground it is incompetent,
irrelevant and immaterial.
By the Court: It may stand.
By Mr. Graves: Q. Now, you said bright lights. What do you mean bright lights'? A.
Bright lights on the part of the bus.
Appellants assign the admission of this testimony, over their objection, as error, and we
are forced to the conclusion that it was error to overrule the objection above recited.
[Headnote 1]
The general rule that a witness must testify to the evidentiary facts and not to his
conclusion, opinions or inferences has been so long and so well recognized by this and all
other courts in this country as not to require discussion.
inferences has been so long and so well recognized by this and all other courts in this country
as not to require discussion. To this general rule however, there are certain exceptions. The
well recognized exception with reference to expert testimony is not here involved.
[Headnote 2]
It is first insisted that Baker's statement that the bright lights on the bus caused the accident
was what is often termed a shorthand statement of the facts, but it is clear that this statement
does not come within such category. See concurring opinion in State v. Teeter, 65 Nev. 584,
649, 200 P.2d 657. The witness's statement that he was blinded by the bus's lights furnishes
a more accurate illustration of a conclusion which is a shorthand statement of the facts.
It is next insisted by respondent that the testimony of Baker that the bus's bright lights
caused the accident comes within the exception to the general rule, under which a witness
may testify to such conclusion when the condition of things is such that they cannot otherwise
be reproduced and made palpable to the jury. For a statement of this rule she cites Atchison,
T. & S. F. R. Co. v. Miller, 39 Kan. 419, 18 P. 486. It is often stated that this exception is
recognized when the facts are such that they cannot be so detailed to the jury as to place them
in the same position as the witness so that as a matter of necessity and because it is the best
evidence available, the witness is permitted to state a conclusion.
A case note in L.R.A.1915A, following the case of Cumberland Tel. & Tel. Co. v. Peacher
Mill Co., 129 Tenn. 374, 164 S.W. 1145, L.R.A.1915A, 1045, at page 1053 of the annotation,
is devoted to the admissibility of testimony of nonexpert witnesses as to cause.
[Headnote 3]
The first situation develops where expert or special knowledge is essential to the formation
of an intelligent opinion which would be of aid to the jury. In such case a nonexpert witness
cannot express his opinion as to the cause of a particular accident.
a nonexpert witness cannot express his opinion as to the cause of a particular accident. This
rule was followed in cases
1
involving the following: cause of overturning of railroad car;
cause of flashes attending blowing out of a fuse box on an electric car; cause of breaking
glass; cause of going out or flowing away of dock; cause of fall of building; cause of breaking
of railroad rail; cause of breaking of pulley; cause of cave-in of roof of mine; cause of
breaking of pane of glass.
Such testimony was also held inadmissible where the witness had no special scientific,
professional or peculiar knowledge of the subject matter, and the facts could be so fully
described that the jury could form an intelligent opinion as well as the witness, such as: cause
of overflowing of river, defective track as cause of train wreck; defect in highway as cause of
accident; defect in construction of sidewalk as cause of breaking of flagstones; pile of lumber
as cause of fright of horses; obstruction of stream by piers as cause of flooding; cause of
burning of goods during transportation; railroad embankment as cause of overflow; cause of
fire along railroad right of way; filling around bridge abuttments as cause of overflow.
Such testimony was also held inadmissible upon the grounds that the question of causation
is one which can be and is to be answered by the jury from the facts as given by the witnesses,
as: fire caused by spark from locomotive, or by heating of internal steam pipe; deficient light
as cause of hammer handle catching in revolving screw to plaintiff's injury.
The last instance bears a close analogy to the present casein which Baker testified that
the bright lights on the bus caused the accident. The case last mentioned, however, Hillje v.
Hettich, 95 Tex. 321, 67 S.W. 90, 92, involved insufficient light. He states that the want of
light was the cause of the accident; that, if there had been more light, it would not have
happened, etc.
____________________

1
The citation of each case involving the illustration given appears in the case note.
been more light, it would not have happened, etc. But this is merely his opinion, not
admissible upon the point, which must be decided from the facts of the occurrence as he
states them. As with Baker's testimony, here the plaintiff himself testifies to cause. Baker
testified that the bright lights in the bus caused the accident. Hettich testified that the lack of
light caused the accident. Baker's theory is that it was negligence for the bus driver to have
had his bright lights on. Hettich's theory is that it was negligence for his employer to furnish
insufficient light. Hettich, like Baker, testified to all of the facts and surroundings in
connection with the accident. There is little if any distinction between bright lights causing
the accident in the one case and insufficient lights causing the accident in the other.
Nonexpert testimony of cause was likewise held inadmissible in a series of cases where
the witness had testified fully to the facts. In other cases the opinions were simply excluded as
mere conclusions.
On the other hand, a group of cases is listed where the witness was particularly acquainted
with the matter, and the subject matter was such as could not be fully reproduced and made
intelligible to the jury except by an expression of opinion in interpretation of the impression
made on the mind of the witness, such as: cause of fright of horses; cause of bar forming in
stream; debris deposited in creek as cause of flooding adjacent land; settling of earth as cause
of hole near telephone pole; cause of towed boat coming into contact with bridge instead of
passing through draw; cause of injury to cotton; dam in stream as cause of injury to mill;
condition of ties and spreading rails as cause of derailment; fall from running board of street
car caused by slipping. The theory of these cases is particularly described in Hand v. Catawba
Power Co., 90 S.C. 267, 73 S.E. 187, admitting the evidence when the matter cannot be
reproduced or clearly described to the jury. The principal difficulty, said the court, was in the
application of the rule, whether the matter could be adequately portrayed to the jury.
of the rule, whether the matter could be adequately portrayed to the jury. In that case it was
said that it would have been impossible for the witnesses to reproduce before the jury in
detail the almost innumerable facts and circumstances which had occurred within their
experience and observation, running through many years, and upon which their opinions were
based.
[Headnote 4]
Such testimony was admitted in a group of cases where the opinion would be more
satisfactory to the triers than those of scientific men, who were personally unacquainted with
the facts, and where to preclude them would be to close a wide and important avenue to the
truth. These cases included a railroad bridge across stream as cause of flooding; a railroad as
an obstruction causing change in flow of river; railroad embankment as cause of overflow of
stream. Referring to the case note above discussed and to other cases, the writer of the text in
20 Am.Jur. 688, Evidence, sec. 818, has recited what we believe to be the correct rule,
namely, that the opinion of a nonexpert as to the cause of a particular accident is not
admissible where the facts can be so fully and sufficiently described that the jury can form an
intelligent opinion as well as the witness.
The ruling of the court on a similar objection to the testimony of another witness is, we
think, of some significance. Truck driver Spears, who was following truck driver Baker, was
asked whether he had an opinion, from his observation of the highway that evening (he had
stopped his truck opposite the bus immediately after the collision, talked to McConaghy,
examined the bus, etc.) as to where the point of impact was. Upon the objection that this
called for a conclusion of law and was an invasion of the province of the jury, the court said:
Objection sustained. You can get the facts from this man and let the jury determine where it
was. I think it invades the province of the jury. Objection sustained. Apparently the ruling
would have been the same if the witness had been asked if, from his examination of the
premises, he knew where the point of impact was.
same if the witness had been asked if, from his examination of the premises, he knew where
the point of impact was. Assuming the correctness of this ruling (see Danner v. Walters, 154
Neb. 506, 48 N.W.2d 635, on the precise point), it would seem that, a fortiori, the question
put to Baker as to the cause of the accident called for a similar ruling.
We have gone to some pains in reciting at length the testimony as given by the witness
with reference to the actual facts and conditions as observed by him. These facts and
conditions were described in such detail as to make the situation as intelligible in the minds
of the jury as it was in the mind of the witnesseven to the extent of the witness's testimony
that he was blinded by the bus's lights. Respondent herself insists that All the facts leading
up to the point of the conclusion of the witness Baker were in evidence. The action of the
court in permitting him to testify further that such bright lights were the cause of the accident
is contrary to the overwhelming weight of authority. Grace v. Union Electric Co., 239
Mo.App. 1210, 200 S.W.2d 364. Respondent concedes this rule as applying in eastern
jurisdictions, but feels that the rule is otherwise in the west. This contention however loses all
weight in view of the holding of this court in McLeod v. Miller & Lux, 40 Nev. 447, 153 P.
566, 569, 167 P. 27. In that case several witnesses were permitted to testify that the
downstream dam of the defendants caused the overflow of Walker River upon the land of the
plaintiff, and caused the deposit of sand in the river bed and on the lands of the plaintiff
above the dam. The identical rule in question and its applicability to the question of causation
was there involved. As the prevailing opinion of Mr. Justice Coleman put it:
The question, then, is: Were the facts and circumstances which entered into the forming
of an opinion by the witnesses themselves as to what caused the overflows complained of
capable of being detailed to the jury? If they were, the opinion of the various nonexpert
witnesses should have been excluded; if they were not, their admission and testimony by
the court was not error.
If they were, the opinion of the various nonexpert witnesses should have been excluded; if
they were not, their admission and testimony by the court was not error. It appears from the
evidence in this case, which took about five weeks to hear, that various witnesses detailed
what transpired along the river as it flows through the property owned by the parties, from a
very early day in the history of the valley. The various dams, ditches, cuts, overflows, etc.,
were minutely detailed to the jury. Besides, the jury were taken to, and personally viewed, the
premises in question. Under the condition of the record, it appears to us that the objections to
the opinions of the nonexpert witnesses should have been sustained.
On rehearing the prevailing opinion said: The point most strenuously urged upon the
rehearing is that the court took the wrong view of the law upon the question as to the
competency of the evidence given by witnesses which was termed nonexpert'.
Respondent in that case, as here, relied upon Hand v. Catawba, 90 S.C. 267, 73 S.E. 187,
but this court there conceded that the facts in Hand v. Catawba no doubt justified the ruling
of the court, it apparently having been considered impossible in that case for the witness to
detail all of the pertinent facts in such manner as to enable the jury to form a conclusion.
McCarran, J., filed a vigorous dissent and also relied upon Hand v. Catawba, supra. A
rehearing was granted and the opinion was again written by Coleman, J. There had been a
change in the court, and Sanders, J., wrote a concurring opinion, Norcross, J., having written
a concurring opinion on the original submission. McCarran then C. J., again wrote a
dissenting opinion. In the official report the six opinions occupy almost a hundred pages, and
we can only say that the question was there put at rest in this state after most careful
consideration and reconsideration. If there is any distinction in the facts, the authority is made
stronger thereby, because the facts here as to road conditions, speed, nature of the
vehicles, the width of the road and the shoulders, the dividing line, the condition of the
lights, etc., were all susceptible of descriptive testimony, while much greater difficulty lay
in the description, covering a period of several years, of the river channel, ditches, dams,
currents, etc., in McCleod v. Miller & Lux.
the facts here as to road conditions, speed, nature of the vehicles, the width of the road and
the shoulders, the dividing line, the condition of the lights, etc., were all susceptible of
descriptive testimony, while much greater difficulty lay in the description, covering a period
of several years, of the river channel, ditches, dams, currents, etc., in McCleod v. Miller &
Lux.
It is next contended that even if the admission of the testimony was error, the same was
harmless. Again McCleod v. Miller and Lux refutes this view. There Sanders, J., said in his
concurring opinion after reargument:
I am of the opinion that it was prejudicial error on the part of the trial court to classify a
number of witnesses, introduced on the part of respondents, as experts when no apparent
reason or necessity existed therefor, other than to make it possible for these witnesses to give
their opinion and state as an ultimate fact that appellants' dam caused the overflow. This was
the primary and ultimate fact to be determined by the jury. It was a close and doubtful
question, and in such situation it is not difficult to perceive the influence of such opinions and
conclusions upon the mind of a juror called upon to determine a doubtful question.
Here too the question as to the cause of the accident was a close and doubtful one and the
influence of Baker's opinion, reinforced by his testimony that he had driven all kinds of trucks
from one and one half to 30 ton capacity over that road in the nighttime for long periods of
time and that his experience embraced the driving of trucks for over a million miles, may
indeed have had a great influence on the minds of the jurors. That influence may well have
been increased by the particular circumstances. Over the objection that the witness's
conclusion would invade the province of the jury, the court said: That objection is overruled.
He says he knows what caused it. This theory was emphasized in Cumberland Tel. & Tel.
Co. v. Peacher Mill Co., 129 Tenn. 374, 164 S.W. 1145, 1147, L.R.A.1915A, 1045, where
the court said: "In this case the jury might well have concluded that the testimony of Prof.
court said: In this case the jury might well have concluded that the testimony of Prof. Daniel,
admitted by the trial judge over objection, imposed on it a peculiar deference to the expert's
opinion as to the true cause of the conflagration.
[Headnote 5]
But it is said by respondent that in McCleod v. Miller & Lux and in many of the cases
cited in support of the rule discussed, the opinion of the witness was given upon the ultimate
conclusion to be drawn by the jury; that the ultimate conclusion to be drawn here was as to
whose negligence caused the damage; that there is a great distinction between cause and
proximate cause; that the jury might even, though accepting Baker's testimony that the bright
lights of the bus caused the accident, have determined that the bus driver under the
circumstances was justified in keeping on his bright lights for the protection of his passengers
and was accordingly not chargeable with negligence. This however draws too fine a line.
In Twomey v. Swift, 163 Mass. 273, 39 N.E. 1018, 1019, the question asked the witness
was as to the cause of the accident. In holding that the question had been properly excluded,
the court said that the question related to the cause of the breaking down of the staging, and
was, we think, intended to ask for an opinion as to whose negligence caused the accident.
Likewise, in Neisner Bros. v. Schafer, 124 Ohio St. 311, 178 N.E. 269, 270, the plaintiff was
permitted over objection to state that an employee in defendant's store had said to plaintiff, I
am sorry, dear, I caused you this injury. In reversing the judgment the court said that
evidence of the character here involved was but the expression of an opinion upon an
ultimate issue to be determined by the jury, and therefore inadmissible. The ultimate issue,
that of negligence, must be determined by the jury from the testimony detailing facts and
circumstances connected with the accident, and not from the opinion or conclusion of the
declarant. In Barber v. Anderson, Tex.Civ.App., 127 S.W.2d 35S, 360, the question
elicited the answer that the witness had first stated that she thought "the accident was
unavoidable."
127 S.W.2d 358, 360, the question elicited the answer that the witness had first stated that she
thought the accident was unavoidable. Again the court said that this was a legal
conclusion to be determined by the jury only from the evidence detailed from the
witness-stand.
Even if we concede that the cause of the accident is not equivalent to or identical with the
final conclusion as to whose negligence caused the accident or the proximate cause thereof, it
embraces a great and perhaps a major part thereof. If we forget for a moment the exact
derivational meaning of ultimate we might even say that the final conclusion of the jury
involved several ultimate issues. Such ultimate issue might within itself be decisive of the
entire case, or might serve such end only in connection with other issues. First State Bank of
Seminole v. Dillard, Tex.Civ.App., 71 S.W.2d 407.
Respondent next insists that even if the admission of Baker's testimony that the bright
lights on the bus caused the accident was error, it became nonprejudicial by reason of the
court's instructions to the jury. It is true that the jury was instructed that if Baker was
negligent and such negligence was the sole proximate cause of the accident, it should find
for appellants. It is also true that the jury was instructed that if the bus driver was suddenly
and unexpectedly confronted with the imminent danger and used his lights in the manner
appearing to him to be the best thing to do for the protection of his passengers, such as might
have been followed by any prudent person charged with the same degree of care under the
circumstances (though in violation of statute requiring him to dim within 500 feet), then he
did all required of him. It is likewise true that the jury was instructed that they must find in
favor of Baker if the bus driver was negligent and such negligence was the sole and
proximate cause of the accident. It is further true that the jury was instructed that regardless
of any reaction or effect the bus lights had on Baker they should still find in favor of the bus
line and the bus driver if the latter's use of his lights "was an exercise of utmost care and
diligence on the part of that driver for the safety of passengers in said bus" and if the jury
found that the bus line and the driver in all other respects complied with the standard of
care imposed on them as explained in other instructions.
and the bus driver if the latter's use of his lights was an exercise of utmost care and diligence
on the part of that driver for the safety of passengers in said bus and if the jury found that the
bus line and the driver in all other respects complied with the standard of care imposed on
them as explained in other instructions.
We do not think that these instructions cured the error. If the jury was permitted to receive
and to accept Baker's conclusion as to the cause of the accident, this error was not excused by
the mere fact that the jury could then proceed to determine for itself other elements involved.
This conclusion is strengthened by the instruction defining proximate cause:
The proximate cause of an injury is that cause which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the result
would not have occurred. It is the efficient cause, the one that necessarily sets in operation the
factors that accomplish the injury.
We conclude that the admission over the objection of the defendants of the testimony of
the truck driver to the effect that the bright lights on the bus caused the accident was error,
and that such error was prejudicial, so that a new trial must be had. We therefore find it
unnecessary to pass upon the other assignments of error. The judgment and the order denying
appellants' motion for new trial are reversed with costs, and the case is remanded for a new
trial.
Order Denying Petition for Rehearing
May 28, 1952.
Per Curiam:
Rehearing denied.
____________
69 Nev. 66, 66 (1952) Western Pacific R.R. Co. v. State
The WESTERN PACIFIC RAILROAD COMPANY, a Corporation,
Appellant, v. The STATE OF NEVADA, Respondent.
No. 3668
March 6, 1952. 241 P.2d 846.
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
department No. 2.
Action by the State against Western Pacific Railroad Company, to recover statutory
penalty for violation of full crew law. From a judgment for state and denial of defendant's
motion for new trial, defendant appealed. The Supreme Court, Merrill, J., held that full crew
statute requiring fireman among members of crew, in light of purposes for which statute was
enacted and circumstances existing at time of enactment, did not require diesel train crew to
contain fireman when none was otherwise necessary to performance by crew of its essential
duties for public safety.
Judgment reversed, case remanded with instructions to enter judgment for
defendant.
Woodburn, Forman & Woodburn & Gordon Thompson, of Reno, for Appellant.
W. T. Mathews, Attorney General, George P. Annand, Robert L. McDonald, Thomas A.
Foley, Deputy Attorneys General, of Carson City, and Jack Streeter, District Attorney,
Washoe County, and John C. Bartlett, Deputy District Attorney, Washoe County, for
Respondent.
1. Railroads.
Provisions of full crew law requiring railroad to maintain crew consisting of engineer, fireman,
conductor and brakeman on freight and passenger trains operated within state, must be accorded meaning
compatible with conditions and circumstances existing at time of its enactment and must be construed in
light of evils then sought to be remedied. N.C.L.1929, sec. 6318.
2. Statutes.
The meaning of words used in statute may be sought by examining context and by considering
reason or spirit of law or causes which induced legislature to enact it, and entire
subject matter and policy of law may be invoked to aid in its interpretation.
examining context and by considering reason or spirit of law or causes which induced legislature to enact
it, and entire subject matter and policy of law may be invoked to aid in its interpretation.
3. Statutes.
Statutes should be so construed as to avoid absurd results.
4. Statutes.
The primary rule for construction of statute is to ascertain intention of legislature in enacting same, and
intent, when ascertained, will prevail over literal sense.
5. Statutes.
When construing statute, purpose of law is to be kept in view and statute given fair and reasonable
construction with view to effecting its purpose.
6. Railroads.
Full crew law, requiring crew consisting of engineer, fireman, conductor and a brakeman on freight or
passenger train operated within state, was enacted in recognition by legislature of fact that proper operation
of railroad requires that certain duties be regularly performed in interest of public safety, and of fact that
proper discharge of such duties requires that sufficient crew be provided on train so that one member need
not assume duties ordinarily assigned to another when such assumption would interfere with regular
performance of his own essential duties. N.C.L.1929, sec. 6318.
7. Railroads.
Full crew statute requiring railroad operating freight or passenger train within state to maintain
four-man crew including engineer, brakeman, conductor and fireman, in light of purposes for which
enacted, did not require diesel train crew to contain fireman when none was otherwise necessary for
performance by crew of its essential duties for public safety. N.C.L.1929, sec. 6318.
8. Evidence.
It is matter of common knowledge that operators of high speed, interurban, electric trains not only
operate upon their sole responsibility, but are firmly and positively isolated against distractions created by
presence of others.
9. Railroads.
Presence of fireman in crew of train powered by diesel engine with forward view unobstructed by steam
boiler is not necessary to performance by crew of its essential duties for public safety, and it was not
contemplated by legislature when enacting full crew law that fireman should be retained upon such type
of engine for sole purpose of reinforcing engineer in proper performance of his duties and for purpose of
guarding against contingency of sudden death of engineer in such manner as to render automatic safety
devices inoperative. N.C.L.1929, sec. 6318.
OPINION
The Western Pacific Railroad Company has appealed from judgment of the trial court that
the state recover the statutory penalty of $500 for violation of the Nevada full crew law and
from order of that court denying motion for new trial. The applicable statute provides (sec.
6318, N.C.L.1929):
It shall be unlawful for any person, firm, company or corporation engaged in the business
of common carrier, operating freight and passenger trains, or either of them, within or through
the State of Nevada, to run or operate, or permit or cause to be run or operated, within or
through this state, along or over its road or tracks, other than along or over the road or tracks
within yard limits, any freight or passenger train consisting of two cars or less, exclusive of
caboose and engine and tenders, with less than a full crew consisting of not less than four
persons, to wit, one engineer, one fireman, one conductor and one brakeman, who will act in
the capacity of flagman.
On January 18, 1950, the company operated over its tracks from Elko, Nevada, to Portola,
California, a Budd railroad Diesel car manned by a crew of three: a conductor, an engineer
and a brakeman-flagman. The car is an 85-foot self-propelled, Diesel-powered, single-car
passenger unit, having a baggage compartment and accommodations for 90 passengers. This
action was brought by the state for failure of the company to provide a fireman pursuant to
the provisions of the quoted section. The company contends that the full crew law and,
specifically, the word train as there used may not properly be construed to apply to
operation of the Budd car. Such is our view.
[Headnotes 1-5]
The question is one of statutory construction. The full crew law was passed March 12,
1913. It must be accorded a meaning compatible with the conditions and circumstances then
existing and "the plain, evident policy and purview of the act."
circumstances then existing and the plain, evident policy and purview of the act. Ex Parte
Iratacable, 55 Nev. 263, 282; 30 P.2d 284, 290. We must ascertain the evils sought to be
remedied. Escalle v. Mark, 43 Nev. 172, 175; 183 P. 387, 388; 5 A.L.R. 1512. The
meaning of words used in a statute may be sought by examining the context and by
considering the reason or spirit of the law or the causes which induced the legislature to enact
it. The entire subject matter and the policy of the law may also be invoked to aid in its
interpretation, and it should always be construed so as to avoid absurd results. Ex Parte
Siebenhauer, 14 Nev. 365, 368. The leading rule for the construction of statutes is to
ascertain the intention of the legislature in enacting the statute, and the intent, when
ascertained will prevail over the literal sense. State ex rel. O'Meara v. Ross, 20 Nev. 61, 63,
14 P. 827, 828; State ex rel. Hinckley v. District Court, 53 Nev. 343, 352, 1 P.2d 105, 106. It
is a cardinal rule of construction that the purpose of a law is to be kept in view and the statute
given a fair and reasonable construction with a view to effecting its purpose. Ex Parte
Douglass, 53 Nev. 188, 191, 295 P. 447, 448.
[Headnote 6]
With reference to the full crew law of Nebraska, the supreme court of that state has said
(Bressler v. Chicago & N. W. Ry. Co., 152 Neb. 732, 42 N.W.2d 617, 619):
* * * the act provides that passenger trains, depending on their size, must always be
manned and operated by a certain number of employees classified according to the duties they
perform. By so doing the Legislature recognized that in order to secure the maximum of
safety in the operation thereof certain duties must always be performed by someone qualified
to perform them. The act does not actually specify what these duties are but, in the absence
thereof, it can only mean such duties as are generally associated with such positions by
custom and practice.
So here, our legislature in 1913 may be said to have recognized that in the proper
operation of a railroad certain duties must in the interest of public safety be regularly
performed; that they must be performed by qualified persons; that a sufficient crew must
be provided so that one member need not assume the duties ordinarily assigned to
another where such assumption would interfere with the regular performance of his own
essential duties.
recognized that in the proper operation of a railroad certain duties must in the interest of
public safety be regularly performed; that they must be performed by qualified persons; that a
sufficient crew must be provided so that one member need not assume the duties ordinarily
assigned to another where such assumption would interfere with the regular performance of
his own essential duties. By the language which is used the legislature indicated that it was
the performance of essential duties with which it was concerned.
[Headnote 7]
The company contends that in the operation of the Budd car no duties remain to be
performed by a fireman. This, we feel, is the sole issue to be determined. To impute to the
legislature an intent to require employment of a fireman in the absence of such duties would
in effect be to impute an intent that these duties continue to be performed notwithstanding
conditions rendering them wholly unnecessary. In the light of the language used and since the
express purpose of the act is public safety, this would indeed be an absurd result. In addition,
such construction would appear to be so clearly unreasonable as to render the act invalid in
exceeding the police power of the state.
Testimony in the record before us has dealt with the duties of the railroad fireman in some
detail. The duties divide themselves into two classes: fueling and lookout.
As to the first: The steam, source of the propulsion power of the steam locomotive, is
generated in a horizontal boiler from water brought to the boiling point by the application of
heat from a fire maintained in a firebox located at the rear of the boiler and opening into the
cab of the locomotive. Historically, wood was the first fuel used to feed the fire, later
supplanted by coal and, still later in some locomotives, by oil. To furnish a supply of the fuel,
a vehicle known as a tender is towed behind the locomotive. The duties of the fireman in
wood or coal-fired locomotives are to feed the fuel to the fire, and to make sure that there is a
proper level of water in the boiler.
boiler. Around the turn of the century mechanical progress had developed an automatic stoker
to bring the fuel to the firebox from the tender, eliminating the necessity for manual stoking
by the fireman. With the development of the oil-fired locomotive the fireman's primary duty
is operation of a valve controlling the flow of the fuel into the box. With both the automatic
stoker and the oil-fired locomotive it is necessary for the fireman to check the fire for even
burning and his duties relative to the water level and steam pressure continue.
As to the second: The location of the steam boiler to the front of the cab creates an
obstruction to the vision of anyone occupying the cab. The engineer's station is on the right of
the cab and without deserting his controls it is impossible for him to observe the left side of
the track or of the train. The fireman thus is given the responsibility of being the eyes and
ears of the engineer on the left side of the train. When not occupied with fueling duties, his
lookout duties are constant.
These, then, were the essential duties of the fireman in railroad operation as it was known
to the legislature in 1913. They were duties which could not with any degree of safety be
performed by any other member of the four-man crew specified by the act.
In operation of the Budd railroad Diesel car no fueling duties are required of any crew
member. There is no fire to maintain for steam pressure. There is no water level to watch. The
engines, similar to those used on many busses, are located underneath the car and are
inaccessible from the cab. The fueling, as in gasoline engines, is automatic. Likewise the
essential lookout duties as known to typical steam operation do not exist in the Budd car.
There is no boiler to obstruct the engineer's view. The cab is located at the very front of the
car. Through four windows to the front and side of the cab and two rearview mirrors, the
engineer from his seat has an unobstructed view to the front, side and rear, superior to the
combined views of both engine crewmembers when stationed behind a steam boiler. It is
clear that the essential duties of the fireman as known to the 1913 legislature no longer
remain to be performed in the Budd car.
clear that the essential duties of the fireman as known to the 1913 legislature no longer
remain to be performed in the Budd car.
The state insists, however, that certain traditional duties remain to be performed by the
fireman. These are specified as follows:
(1) In the operation of a train an engineer acts under written orders. It is required by
railroad regulation that he show these orders to the fireman. The fireman must understand
them and remind the engineer if he overlooks them in any respect.
(2) In operation of a train the engineer is governed by many signals along the line. It is the
fireman's duty to observe and understand all signals and call them to the engineer's attention.
[Headnotes 8, 9]
It is clear, however, that these are essentially duties of the engineer. The fireman is simply
reinforcing the engineer in his performance of those duties; in effect sharing the responsibility
of the engineer. In cases where the presence of a fireman in the cab is necessary to the
performance of a fireman's function, it is understandable that such reinforcement of the
engineer might be regarded as desirable. Where his presence is not otherwise necessary,
however, the employment of a fireman can only be justified upon the assumption that the
engineer will not properly perform the duties assigned to him. Further, such sharing of
responsibility would appear as a safety measure to partake of a somewhat dubious quality. As
a matter of common knowledge we know that operators of high speed, interurban, electric
trains not only operate upon their own sole responsibility (under more hazardous traffic
conditions than this railroad through this state is required to meet), but are firmly and
positively isolated against the distractions created by the presence of others.
Furthermore, even assuming such duties to be desirable in the interest of public safety, it
does not appear from the record that a separate crew member is at all necessary to their
performance.
necessary to their performance. From undisputed testimony frequently reiterated throughout
the record it would appear clear that all such duties could on the Budd car be assumed by the
conductor or brakeman or shared between them.
We cannot, therefore, impute to the legislature the intent to require the presence of a
fireman or fourth crew member upon this type of car for the sole purpose of reinforcing the
engineer in the proper performance of his duties and of sharing his responsibility in that
regard.
The state further emphasizes the possibility of sudden death or disability of the engineer
and its obvious effect upon public safety (the very basis of the full crew law) should the
engineer be alone in his cab. The Budd car has provided a safety device known as the dead
man's pedal. The engineer is required to maintain constant foot pressure upon this pedal.
Should he remove his foot or move it slightly upon the pedal the car automatically is brought
to a stop. The state, through cross-examination of witnesses, has established a degree of
uncertainty in the unfailing success of this device's operation. Should the engineer, following
death or loss of consciousness, remain in his chair in such a position that pressure upon the
pedal continues without slightest interruption, the safety effect of the device would be lost.
The degree of probability of such an occurrence, however, is not discussed in the testimony.
The department of public utilities of the Commonwealth of Massachusetts in an opinion
relating to this same Budd car (Brotherhood of Railway Trainmen v. Boston-Albany Railroad,
92 P.U.R.N. 298, October 5, 1951) has aptly stated: There is no panacea which will guard
without fail against any possible human failure. Later in the opinion it is said:
In matters of public safety, as in most other social relationships, there is such a thing as a
law of diminishing returns. While we do not intend to permit any carrier or other utility under
our jurisdiction to fail or refuse to take every reasonable precaution to protect the public,
there is a line which separates reasonable precautions from unreasonable requirements.
refuse to take every reasonable precaution to protect the public, there is a line which separates
reasonable precautions from unreasonable requirements. We are of the opinion that to compel
respondent to put another man on this essentially simple operation would be unreasonable.
We feel that one more man would accomplish nothing which cannot be handled by the
present crew in the absence of absurd hypotheses, such as the simultaneous death or disability
of both the engineer and the conductor.
In the case before us, as we have already indicated, no reason appears why the conductor
and brakeman between them could not provide any necessary watch over the continued
fitness of the engineer.
In the Massachusetts proceeding, it might be mentioned, no contention was made that a
fireman was necessary to safe operation of the car. The question was whether employment of
a brakeman in addition to the conductor and engineer was essential. The holding was that
under the particular circumstances there outlined (including automatic centralized signal
protection supplemented by automatic stopping devices) a crew of two was sufficient.
In our view, therefore, we may not impute to the legislature an intent to require
employment of a fireman or fourth crew member for the sole purpose of protecting against
the possibility of sudden death or disability of the engineer under circumstances rendering
appropriate safety devices ineffective.
Two cases only have been cited to us upon the precise point here involved: employment of
a fireman upon this type of car under this type of statute: Railroad Commission V. Texas &
New Orleans R. Co., Tex.Civ.App., 42 S.W.2d 1091; Moredick v. Chicago & Northwestern
Railway Co., 125 Neb. 864, 252 N.W. 459. Both cases squarely support our view in
construction of our statute. In the Texas case it is stated:
Manifestly the effect of the general language, any passenger train with less than a full
crew consisting of four persons,' is limited by the language immediately following it,
specifically naming and defining the kind and character of the four persons to be
employed, to wit, one engineer, one fireman, one conductor, and one brakeman.
four persons,' is limited by the language immediately following it, specifically naming and
defining the kind and character of the four persons to be employed, to wit, one engineer, one
fireman, one conductor, and one brakeman. The facts and common knowledge show that
these four particularly named persons had specific duties to perform on steam-propelled
passenger trains when the act was passed, thus indicating the kind or character of passenger
train on which the Legislature intended a full crew of these four particular persons should be
maintained. Clearly it is not, as contended by appellants, manifest from the language of the
statute, standing alone, that the Legislature by unmistakable implication intended to extend
the law beyond the immediate scope and object of the statute as of the time of its enactment,
so as to require steam railroad companies to now maintain, without regard to name or the
difference in duties imposed, a full crew of four persons on their modern gasoline or electric
motor cars carrying passengers over such steam railroads. [42 S.W.2d 1094.]
Accordingly we conclude that the legislature may not be held to have intended the
provisions of the full crew law to apply to operation of the Budd railroad Diesel car. That law
and specifically the word train as there used may not, therefore, be construed to apply to
such operation.
The judgment of the trial court is reversed and the case remanded with instructions that
judgment be entered for the defendant.
____________
69 Nev. 76, 76 (1952) Giorgetti v. Peccole
EMELIO GIORGETTI, Appellant v. ROBERT
PECCOLE, Respondent.
No. 3685
March 6, 1952. 241 P.2d 199.
Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
department No. 1.
Robert Peccole sued Emelio Giorgetti asserting nonpayment of debt. From a judgment for
plaintiff, defendant appealed. The Supreme Court, Eather, J., held that trial court had
committed error in refusing to grant defendant's motion for continuance.
Taylor and Gubler, and Jones, Wiener & Jones, all of Las Vegas, for Appellant.
George E. Franklin, Jr., of Las Vegas, for Respondent.
1. Continuance.
The justification for continuance based upon absence of witness is testimony which witness is expected to
give, and if it be stipulated as to what witness would testify or if it be shown that expected testimony would
be inadmissible, court may refuse continuance. Rules of district court, rule 12.
2. Continuance.
The granting of motions for continuance, save as governed by provisions of district court rule relating to
motions made upon ground of absence of witnesses, lies within discretion of trial court. Rules of district
court, rule 12.
Where defendant sought reversal of judgment for plaintiff because of asserted error by trial judge in
refusing to grant defendant's motion for continuance on ground of absence of defendant, and it appeared
that trial court had refused to exercise any discretion in matter because it erroneously felt itself bound by
district court rule to deny motion and where it additionally appeared that defendant's presence at trial
would have been essential to success of his defense and that plaintiff would not have suffered any material
damage by slight delay which would have been necessitated by granting of motion, judgment appealed
from would be reversed and cause remanded. Rules of district court, rule 12.
OPINION
By the Court, Eather, J.
This is an appeal by defendant Emelio Giorgetti from the judgment and from an order
denying his motion for a new trial.
The sole allegations of the complaint were: That on or about the 8th day of March, 1950,
the defendant became indebted to the plaintiff in the sum of EIGHTEEN THOUSAND
THREE HUNDRED THIRTY THREE DOLLARS AND THIRTY THREE CENTS
($18,333.33), for money had and received by said defendant for the use and benefit of the
plaintiff; that no part of said sum of $18,333.33 has been paid, although plaintiff has
demanded same from said defendant. Issue was joined by general denial.
In support of the appeal defendant assigns six matters of error, the second of which is that
The trial court committed error in its refusal to grant defendant's motion for continuance,
and that for this error the judgment should be reversed. We agree with this contention, and
will therefore confine the discussion to this point.
When the case was called for trial, counsel for the defendant moved for a continuance of
the trial, and filed on behalf of his client a Notice of Motion for Continuance, which notice
specified: The said motion will be made and based upon the ground that the defendant is
unable to attend the said trial because of illness. The affidavit attached to the Notice of
Motion for Continuance stated:
V. Gray Gubler, being first duly sworn according to law, deposes and says:
That he is one of the attorneys for the defendant in the above entitled action; that said
defendant, EMELIO GIORGETTI, telephoned affiant Monday evening, May 14, 1951, from
Mills Memorial Hospital, San Mateo, California, and advised affiant that he, EMELIO
GIORGETTI, flew to California Sunday, May 13, 1951, for medical examination and
treatment by his doctor, Harry E.
GIORGETTI, flew to California Sunday, May 13, 1951, for medical examination and
treatment by his doctor, Harry E. Mason, M.D., of Redwood City, California, who thereupon
placed him, EMELIO GIORGETTI, in Mills Memorial Hospital, San Mateo, California, for
emergency surgery; that Mr. Giorgetti further advised that said emergency surgery was
scheduled to be performed [this date] Tuesday May 15, 1951, and that he had been advised by
his doctor that it would be necessary for him to remain in the hospital ten days or thereabouts.
That affiant advised the defendant to have his said doctor wire, confirming the fact of
such hospitalization and operation, and later, [last] that night received a telephone call from
the Las Vegas office of Western Union advising the receipt of a telegram which has since
been delivered and is now in affiant's possession, as follows:
Emelio Giorgetti is a patient in Mills Memorial Hospital, San Mateo, California. He will
be operated upon May the 15th 1951. (Stop) Affidavit to follow.
Dr. Harry E. Mason.
That Tuesday evening, May 15, 1951, affiant received a telephone call from the defendant
who advised that he had been operated on Tuesday afternoon.
That the defendant, EMELIO GIORGETTI, is the only defense witness intended to be
called on the trial of the above entitled action; that defendant and his attorneys can not go to
trial and defend the above entitled action without defendant's being present to testify; that the
deposition of the defendant could not be taken for the reason that his inability to be in
attendance at the trial was not learned until said telephone call May 14, 1951; that the
presence of said defendant is indispensable to a fair trial of the cause and that if continuance
is granted the party will appear within a reasonable time or his testimony will be procured by
deposition.
That this application for continuance is made in good faith and not for the purpose of
delay merely.
WHEREFORE, affiant, on behalf of defendant and defendant's attorneys, respectfully
requests that the trial setting of the above entitled action be vacated, and that the trial be later
re-set to commence whatever day may be convenient to the Court and counsel and at a time
sufficiently deferred to permit the attendance of the defendant. * * *
The record of the lower court shows that on Wednesday, May 16, 1951, the case of Robert
Peccole, plaintiff, v. Emelio Giorgetti, defendant, came up for hearing before the court, sitting
without a jury, and the following proceedings were had, as set forth in the court minutes:
Mr. Taylor offered Motion for Continuance on behalf of defendant and moved the Court
in accordance with said motion and offered in support thereof the affidavit of V. Gray Gubler,
Esq., attached to said motion, and all the records and papers on file.
No counter affidavit by Mr. Franklin.
Argument by Mr. Franklin. Argument by Mr. Wiener.
Thereafter, by the Court: Ordered that the Motion for Continuance be and the same is
hereby denied for failure to comply with Rule XII of the Rules of the District Court.
This time the Court proceeded with the trial of the action.
Following the trial judgment was rendered in the sum of $18,000.
District court rule No. XII provides as follows:
All motions for the continuance of causes shall be made on affidavit, and, when made on
the ground of absence of witnesses, the affidavit shall state:
FirstThe names of absent witnesses, and their present residence or abiding place, if
known.
SecondWhat diligence has been used to procure their attendance, or depositions, and
the causes of a failure to procure the same.
their attendance, or depositions, and the causes of a failure to procure the same.
ThirdWhat the affiant has been informed and believes will be the testimony of each of
such absent witnesses, and whether or not the same facts can be proven by other witnesses
than parties to the suit, whose attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of
such absent witnesses could not be obtained.
Fifththat the application is made in good faith and not for delay merely.
And no continuance will be granted unless the affidavit upon which it is applied for
conforms to this rule, except where the continuance is applied for in a mining case, upon the
special ground provided by statute. A copy of the affidavits upon which a motion for a
continuance is made, shall be served upon the opposing party as soon as practicable after the
cause for the continuance shall be known to the moving party. Counter affidavits may be used
in opposition to the motion. No amendments or additions to affidavits for continuance will be
allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
[Headnote 1]
It is to be noted that the requirements of Rule XII relative to the matters to be covered by
affidavit apply only where the motion is made upon the ground of the absence of witnesses.
Defendant's motion for continuance was not made upon the ground of absence of witnesses
but upon the ground of the absence of the defendant. Therefore that portion of Rule XII has
no application here. The justification for a continuance based upon absence of a witness is the
testimony which that witness is expected to give. If it be shown to be inadmissible or if it be
stipulated that the witness would so testify, the court might well refuse a continuance upon
that ground.
so testify, the court might well refuse a continuance upon that ground. Such is not the case
when the ground is absence of a party.
In case of Jaffe v. Lilienthal, 101 Cal. 175, 35 P. 636, 637, the court stated as follows:
Respondent suggests that it does not appear that plaintiff was a witness, nor that his
attorney used any diligence to prepare for the trial. It seldom happens that a trial can be
properly had in the absence of the plaintiff, even where he is disqualified as a witness,
especially where it is to be tried upon oral testimony. With all the care that can reasonably be
taken by both attorney and client, some matter of vital importance is liable to be overlooked
by them until the trial calls it to the recollection of the plaintiff, and this is especially true in
relation to matters purely in rebuttal. It is the right of parties to be present at the trial of their
cases. * * * In such case the dismissal is the absolute destruction of the plaintiff's right, and
so serious a penalty should not be imposed unless the due administration of justice clearly
requires it.
So, here, the importance of defendant's presence, and the nature of his testimony in
rebuttal would depend upon the plaintiff's evidence, entirely uncertain at this point, under his
common law count of money had and received.
[Headnotes 2, 3]
The granting of motions for continuance, save as governed by the provisions of Rule XII,
remains within the discretion of the trial court. However, it is clear from the record before us
that the trial court erroneously felt itself bound by the provisions of Rule XII and in effect
refused to exercise any discretion in the matter. From the record it would appear that had such
discretion been exercised the motion in all probability would have been held meritorious and
been granted.
It will be noted that in the Notice of Motion for Continuance it is stated: The motion
will be made and based upon the ground that the defendant is unable to attend the said
trial because of illness."
based upon the ground that the defendant is unable to attend the said trial because of illness.
As was stated in Morehouse v. Morehouse, 136 Cal. 332, 68 P. 976, 977:
The necessity of defendant's presence at the trial, if not sufficiently apparent from the
nature and circumstances of the case, is shown by the affidavit of his attorney; and the
impracticability of his attendance by the affidavit of his attending physician. * * *
Also in the affidavit it is stated: That the defendant, Emelio Giorgetti, is the only witness
intended to be called on the trial of the above entitled action.
It must also be taken into consideration that no counter affidavit was filed by the plaintiff,
and according to the record no motion for a continuance had theretofore been made by the
defendant. The record shows that the case was called for trial one month and twenty-five days
after the filing of the complaint; that the delay resulting from the granting of the motion
would have been of short duration. There was a $20,000 cash bond on file to secure any
judgment the plaintiff might obtain. The plaintiff would not suffer any material damage by
the delay. No lack of defendant's good faith is suggested.
The judgment appealed from should be reversed, with costs, and remanded for trial.
It is so ordered.
On Petition for Rehearing
April 1, 1952.
Per Curiam:
Rehearing denied.
____________
69 Nev. 83, 83 (1952) Summers v. Summers
ESTELLE SUMMERS, Appellant, v. JACK
SUMMERS, Respondent.
No. 3687
March 12, 1952. 241 P.2d 1097.
Appeal from judgment of the Second Judicial District Court, Washoe County; A. J.
Maestretti, Judge, department No. 2.
Estelle Summers sued Jack Summers on a New York separate maintenance judgment.
From a judgment awarding plaintiff an amount due under the New York judgment up to the
date of a Nevada decree granting defendant a divorce from plaintiff, but denying plaintiff
recovery of installments accruing after the divorce decree, and from an order denying
plaintiff's motion for a new trial, she appealed. The Supreme Court, Badt, C. J., held that the
judgment appealed from violated the full faith and credit clause of the federal Constitution.
Morley Griswold and George L. Vargas, of Reno, for Appellant.
Axel P. Johnson, of Reno, for Respondent.
1. Divorce.
A New York Supreme Court separate maintenance judgment, awarding wife specified sums weekly for
support of herself and her minor child, was a final judgment, which must be accorded full faith and credit
in Nevada as to installments accruing before husband obtained Nevada divorce decree. 28 U.S.C.A. sec.
1738; U.S.C.A.const. art. 4, sec. 1.
2. Courts.
Where conflicts between policies of different states necessitate application of full faith and credit clause
of federal constitution, the law as pronounced by United States Supreme Court is controlling.
U.S.C.A.const. art. 4, sec. 1.
3. Divorce.
Nevada courts cannot adjudicate wife's rights under New York separate maintenance judgment in
husband's Nevada divorce suit, wherein wife was not personally served with process and did not appear, as
such judgment created property interest, which was an intangible, jurisdiction over which cannot be exerted
through control over a physical thing, but can arise only from control or power over persons
whose relationships are source of rights and obligations granted and imposed
thereby.
arise only from control or power over persons whose relationships are source of rights and obligations
granted and imposed thereby. U.S.C.A.const. art. 4, sec. 1.
4. Divorce.
A New York separate maintenance judgment, awarding wife weekly sums for support of herself and her
minor child, cannot be impeached in Nevada court without violating full faith and credit clause of federal
constitution. U.S.C.A.const. art. 4, sec. 1.
5. Judgment.
The full faith and credit clause of federal constitution substituted for principles of comity between states
as independent sovereigns requirement that each state submit even to another state's hostile policies when
reflected in judgments duly rendered therein. U.S.C.A.const. art. 4, sec. 1.
6. Divorce.
A Nevada district court judgment, limiting wife's recovery of support money from husband under New
York Supreme Court separate maintenance judgment to sums accruing before entry of Nevada decree
granting husband divorce and refusing recognition of New York judgment as to installments accruing after
date of divorce decree, violated full faith and credit clause of federal constitution. U.S.C.A.const. art. 4,
sec. 1.
7. Divorce.
A Nevada district court erred in attempting to modify effect of New York Supreme Court separate
maintenance judgment as to required weekly payments by husband for support of spouses' minor child by
ordering him to pay smaller weekly sum therefor in granting him a divorce from nonresident wife, with
whom child lived, on substituted service. U.S.C.A.const. art. 4, sec. 1.
8. Divorce.
Where wife, appealing from Nevada district court's judgment on New York separate maintenance
judgment for sums accrued thereunder before entry of Nevada decree granting husband divorce, assigned
no error in court's failure to grant her prayer for alternative relief of establishment of New York judgment
as that of Nevada court and enforcement thereof as similar judgment of such court for separate
maintenance under Nevada statutes, question involved in such prayer was not before supreme court for
consideration.
OPINION
We are here confronted with the question whether in a suit in Nevada, by a wife, upon a
New York judgment for separate maintenance, the provisions thereof may extend through
and beyond a subsequent divorce decree obtained by the husband in Nevada on
substituted service.
extend through and beyond a subsequent divorce decree obtained by the husband in Nevada
on substituted service.
The Supreme Court of New York, on April 24, 1947, on personal service, granted the wife
a decree of separate maintenance against the husband and thereafter denied the husband's
motion to modify it. The husband subsequently sued for divorce in Nevada and obtained a
default judgment October 30, 1950 on substituted service. The trial court was not apprised of
the New York judgment. The wife's suit in Nevada to establish the New York judgment was
filed October 9, 1950 and personal service obtained. It was lodged in a different department
of the same court in the same county. Judgment on the New York decree was entered in her
favor on July 10, 1951 for $2,976.85, being figured on the New York judgment up to the date
of the husband's Nevada divorce decree, but denying judgment for installments accruing after
such decree. Her appeal is based upon the contention that she is entitled to the full amount
accrued under the New York decree, including sums accruing after the husband's divorce
decree. She asserts that under the full faith and credit clause, the New York decree must be
recognized and enforced beyond the date of the husband's subsequent divorce decree, and that
the case of Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed.1561, is controlling.
Respondent says that he has no quarrel with the Estin case, but that it does not apply. He
relies upon Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378, to the effect that in Nevada there is
no force to the separate maintenance order subsequent to the entry of the divorce decree, and
refers to numerous cases from other jurisdictions which have reached the same conclusion.
As many other states have held contra. See cases cited in the prevailing and dissenting
opinions in Rodda v. Rodda, 185 Ore. 140, 200 P.2d 616, 202 P.2d 638, and in Simonton v.
Simonton, 40 Ida. 751, 236 P. 863, 42 A.L.R. 1363, and annotation id. 1375. We simply
accept the fact at this point that Nevada follows the rule that a separate maintenance
decree does not survive divorce but that New York follows the contrary rule that a
separate maintenance decree does survive a subsequent divorce.
this point that Nevada follows the rule that a separate maintenance decree does not survive
divorce but that New York follows the contrary rule that a separate maintenance decree does
survive a subsequent divorce. Estin v. Estin, supra.
1
See also Estin v. Estin, 296 N.Y. 308,
73 N.E.2d 113. In the present case the Nevada divorce decree so far as it determined the
marital status of the parties is not questioned. Williams v. North Carolina, 317 U.S. 287, 87
L.Ed. 279, 63 S.Ct. 207, 143 A.L.R. 1273.
It would appear that the question is a new one in this state. It was virtually conceded in the
trial court that the wife was entitled to her judgment for $2,976.85, the amount accrued under
the New York separate maintenance decree up to the date of the Nevada divorce. Appellant
claims that the full faith and credit clause
2
carries it beyond the divorce, while respondent
maintains that the question is merely one of comity. He insists that if the Nevada courts would
not recognize a separate maintenance decree, even of its own courts, extending beyond a
divorce, comity does not compel Nevada courts to recognize a contrary situation growing out
of a New York decree.
[Headnote 1]
(1) We are confronted with a preliminary question.
____________________

1
Mr. Justice Douglas, speaking for the majority of the court, so construed the holding of the New York court.
Mr. Justice Jackson, dissenting, assumed New York law to be otherwise if the subsequent divorce decree were a
New York decree, and Mr. Justice Frankfurter, also dissenting, felt that New York had not spoken with
ascertainable clarity as to whether the subsequent divorce decree would terminate support. [334 U.S. 541, 68
S.Ct. 1220.]

2
That clause directs that Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State and provides that Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. By the act of
May 26, 1790, chap. 11, 1 Stats. 122, as amended, 28 U.S.C.A., sec. 1738, congress provided that the records
and judicial proceedings of the courts of any state shall have the same full faith and credit in every court
within the United States and its Territories and Possessions as they have by law or usage in the courts of such
State, Territory or Possession from which they are taken.
Respondent contends that, assuming for the moment that the New York support decree would
survive the subsequent Nevada divorce, the New York award of $45 a week to the wife and
$40 a week for the support of the child is not such a final judgment of the Supreme Court of
New York as must be accorded full faith and credit as to accrued installments.
This contention must be rejected under authority of Sistare v. Sistare, 218 U.S. 1, 30 S.Ct.
682, 54 L.Ed. 905. That decision was based on Barber v. Barber, 21 How. (U.S.) 582, 16
L.Ed. 226, against the contention that the Barber case had been overruled by Lynde v. Lynde,
181 U.S. 183, 45 L.Ed. 810, 21 S.Ct. 555. Quoting the Barber case, with reference to the
nature and character of a decree of separation and for alimony, and the operation and effect
upon such decree as to past-due installments, of the full faith and credit clause, the court held
the same to be a judgment of record to be received as such by other courts, and to be carried
into judgment in any other state, to have there the same binding force that it has in the state
in which it was originally given. It was held to be error for a Connecticut court to refuse to
enforce a prior New York decree to the extent of accrued unpaid alimony payments as being
in conflict with the full faith and credit clause.
[Headnotes 2, 3]
(2) In conflicts between contrary state policies such as those here involved and
necessitating the application of the full faith and credit clause of the federal constitution, the
law as pronounced by the Supreme Court of the United States is controlling. Milwaukee
County v. White Co. 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220. In Estin v. Estin, 334 U.S.
541, 68 S.Ct. 1213, 1218, 92 L.Ed. 1561, the wife obtained a New York separation decree
and support order in an action in which the husband appeared. Thereafter the husband
established his residence in Nevada and obtained a default decree of divorce upon
constructive service, the wife not appearing.
When she subsequently, in New York, sought enforcement of accrued payments under the
New York support order, the husband asserted the Nevada decree as a defense. The supreme
court recognized the divisible nature of the Nevada decree, effective as determining the
marital status, but without effect upon the New York support order. The court said:
But the question is whether Nevada could under any circumstances adjudicate rights of
respondent under the New York judgment when she was not personally served or did not
appear in the proceeding. Bassett v. Bassett 9 Cir.Nev., 141 F.2d 954, held that nevada could
not. We agree with that view.
The New York judgment is a property interest of respondent, created by New York in a
proceeding in which both parties were present. It imposed obligations on petitioner and
granted rights to respondent. The property interest which it created was an intangible,
jurisdiction over which cannot be exerted through control over a physical thing. Jurisdiction
over an intangible can indeed only arise from control or power over the persons whose
relationships are the source of the rights and obligations. * * *
* * * The Nevada decree that is said to wipe out respondent's claim for alimony under the
New York judgment is nothing less than an attempt by Nevada to restrain respondent from
asserting her claim under that judgment. That is an attempt to exercise an in personam
jurisdiction over a person not before the court. That may not be done. Since Nevada had no
power to adjudicate respondent's rights in the New York judgment, New York need not give
full faith and credit to that phase of Nevada's judgment. A judgment of a court having no
jurisdiction to render it is not entitled to the full faith and credit which the Constitution and
statute of the United States demand.
Mr. Justice Jackson, in dissenting, scoffs at the idea that by limiting the effect of the
Nevada decree to the personal status of the parties full faith and credit is accorded thereto.
personal status of the parties full faith and credit is accorded thereto. He refers to the majority
opinion as a Solomon-like conclusion that the Nevada decree is half good and half bad under
the full faith and credit clause. The majority opinion however, based upon the conclusion
that Nevada had no jurisdiction on substituted service to alter the wife's rights in the New
York judgment, also shows that the conclusion reached accommodates the interests of both
Nevada and New York in this broken marriage by restricting each State to the matters of her
dominant concern. The court definitely agreed with the view expressed in Bassett v. Bassett
9 Cir.Nev., 141 F.2d 954, which in turn followed Durlacher v. Durlacher, 9 Cir.Nev., 123
F.2d 70, 72. In the latter case, very similar to the present situation, with reference to the
husband's attempt to set up his Nevada divorce in defense of the wife's action in the United
States district court for the district of Nevada to collect alimony awarded by a New York
court under a prior decree of separation and maintenance, the circuit court of appeals for this
circuit said:
The Supreme Court has repeatedly held that under the full faith and credit clause of the
Constitution (extended by the statute to the court below), a judgment of a sister state must be
enforced, even though the cause of action upon which the judgment is based is repugnant to
the law of the state requested to enforce it.
[Headnote 4]
Under Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039, relied upon as a
leading case since the opinion was rendered in 1908 and approved so recently as in Hughes v.
Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212, decided in June, 1951, the New York
separation and award decree cannot be impeached in this court without violating the full faith
and credit clause of the federal constitution. Fauntleroy v. Lum, under its facts, presented a
stronger case than is presented here.
There, residents of Mississippi entered into a contract prohibited by the Mississippi statutes
concerning gambling in futures, which statutes inhibited the Mississippi courts from giving
effect to any contract made in violation thereof. The parties to the contract submitted their
differences to arbitration in Mississippi and the one in whose favor the award was made first
sued unsuccessfully in Mississippi upon the award. He thereafter sued in Missouri and
succeeded in getting personal service on the defendant Mississippi citizen in Missouri. The
Missouri court rejected the defendant's proffered evidence as to the illegal and criminal nature
of the transaction under Mississippi law and a judgment was entered for the plaintiff, whose
assignee sued on the Missouri judgment in Mississippi, where the defendant set up the facts
and the prohibitory statutes. The Supreme Court of Mississippi held that the Missouri
judgment was not required under the full faith and credit clause to be enforced in Mississippi,
but the United States supreme court, speaking through Mr. Justice Holmes, reversed the
judgment and held that Mississippi could not go beyond the Missouri judgment. It held that
the Missouri judgment should have the same credit, validity and effect in every other court
in the United States which it had in the state where it was pronounced, and that whatever
pleas would be good to a suit thereon in such state, and none others, could be pleaded in any
other court in the United States. [210 U.S. 230, 28 S.Ct. 643.] (Emphasis supplied.) This is
the identical rule pronounced by Chief Justice Marshall in Hampton v. M'Connel, 3 Wheat.
(U.S.) 234, 4 L.Ed. 378. The majority opinion in Fauntleroy V. Lum rejected the reasoning
(more potent than that of respondent herein) of a vigorous dissenting opinion by Mr. Justice
White, with whom Mr. Justice Harlan, Mr. Justice McKenna, and Mr. Justice Day joined, to
the effect that this prevented Mississippi from the enforcement of laws enacted under its
police powers. See, also, Hughes v. Fetter, 341 U.S.
609, 71 S.Ct. 980, 95 L.Ed. 1212; Milwaukee County v. White Co., 296 U.S. 268, 56 S.Ct.
229, 80 L.Ed. 220. In the last-named case, referring to an action on the judgment of a foreign
state, the court said: Recovery upon it can be resisted only on the grounds that the court
which rendered it was without jurisdiction * * * or that it has ceased to be obligatory because
of payment or other discharge * * *.
3

Respondent relies strongly upon Rodda v. Rodda, 185 Ore. 140, 200 P.2d 616, 202 P.2d
638, which reviews the Estin case and many other cases dealing with a similar subject matter.
In that case the wife had obtained an Oregon support order. Thereafter the husband obtained a
Nevada divorce concededly valid as terminating the marital relation. On the strength of the
Nevada divorce he moved the Oregon court for termination of the support provisions of the
separate maintenance decree. Holding that the policy of Oregon is that the support provisions
subsist only during the relationship of the parties as husband and wife, the Supreme Court of
Oregon affirmed the judgment of the trial court terminating the support order. No matter how
conclusive the Rodda case might be if we were considering an Oregon separate maintenance
decree, it remains that New York has established the contrary policy. The Oregon court
recognized this in saying:
We do not inquire whether the Nevada divorce decree of its own force terminates the
Oregon decree, for the Supreme Court of the United States has held in the Estin case that it
cannot; but we must determine whether, under Oregon law, the former husband is still
obligated to support his former wife under that decree, notwithstanding the marriage relation
has come to an end. (Emphasis supplied.) [185 Ore. 140, 200 P.2d 620.]
Respondent relies upon Harrison v. Harrison, 20 Ala.
____________________

3
It is unnecessary to consider other exceptions, as where there is a cause of action for which the state of the
forum has not provided a court, or possibly where the judgment was procured by fraud.
629, 56 Am.Dec. 227; McCullough v. McCullough, 203 Mich. 288, 168 N.W. 929; Shaw v.
Shaw, 332 Ill.App. 442, 75 N.E.2d 411; Rosa v. Rosa, 296 Mass. 271, 5 N.E.2d 417; and
Bloedorn v. Bloedorn, 64 App. D.C. 199, 76 F.2d 812, as establishing the proposition that a
decree for separate maintenance cannot survive a subsequent decree of divorce. We have no
quarrel with that proposition. It is the rule in this state. Most of these cases do not touch the
question as to whether the subsequent divorce, granted on substituted service, effective as to
termination of the marital relationship, can be effective as terminating a prior separate
maintenance decree entered in a state holding that separate maintenance survives divorce and
which has made its judgment with personal jurisdiction of the parties. These cases were all
discussed in the prevailing opinion of the court by Lusk, J., in Rodda v. Rodda, supra. The
facts in Harrison v. Harrison, supra, are indeed similar to those in the instant case. It was
decided in 1852. Insofar as it reached a different result than that pronounced in the Estin case,
we must decline to follow it. The question for our determination remains that of according
full faith and credit to the New York decree obtained by Mrs. Summers, and on that federal
constitutional question the holding of the United States supreme court in Estin v. Estin and
Fauntleroy v. Lum must control us. The California and other cases cited by respondent meet
the same fate. Esenwein v. Commonwealth of Pennsylvania, 325 U.S. 279, 65 S.Ct. 1118, 89
L.Ed. 1608, 157 A.L.R. 1396, relied upon by respondent, was likewise emphasized in the
dissenting opinion of Mr. Justice Frankfurter in the Estin case, but, like the Rodda case, it
simply illustrates what the result might be if the prior separate maintenance decree is rendered
in a state whose public policy terminates such decree by any valid divorce.
[Headnote 5]
Respondent sees an anomaly in Nevada's policy of terminating the effects of one of its
own separate maintenance decrees by a subsequent divorce, while at the same time
being compelled, in its own courts, to recognize the survival of a foreign separate
maintenance decree.
terminating the effects of one of its own separate maintenance decrees by a subsequent
divorce, while at the same time being compelled, in its own courts, to recognize the survival
of a foreign separate maintenance decree. Respondent argues: If, under the decision in the
Estin case, the New York court is not required to give full faith and credit to the Nevada
decree, and to the Nevada statute, then, by the same logic and applying the same legal
principles, Nevada is not required to give full faith and credit to the New York decree. But
this is based upon a false premise. New York, contrary to its own policy, must give full faith
and credit to that part of the Nevada decree which terminates the marital relation. Estin v.
Estin, supra; Williams v. North Carolina, supra. Nevada, contrary to its own policy, must
likewise give full faith and credit to the continuing effect of New York's separate
maintenance decree. Subject to considerations arising out of the jurisdiction of the court over
the respective parties, and other possible limitations, this is the inevitable result of the full
faith and credit clause which substituted for the earlier principles of comity between the states
(based on their status as independent sovereigns) a requirement that each state submit even to
the hostile policies of another state when reflected in the latter's judgments duly rendered.
Estin v. Estin, supra. See also annotation to Hughes v. Fetter, supra, appearing in 95 L.Ed.
1221; Williams v. North Carolina, supra.
[Headnote 6]
It is clear that the judgment of the lower court limiting recovery under the New York
decree to the period prior to the Nevada divorce and refusing recognition to the New York
decree as to installments accruing after the Nevada divorce violated the constitutional
requirement to accord the New York decree full faith and credit in this state.
[Headnote 7]
(3) The New York separation decree awarded the custody of the minor child of the
parties to the wife and ordered the husband to pay $40 a week for its support.
custody of the minor child of the parties to the wife and ordered the husband to pay $40 a
week for its support. Pursuant thereto the residence and domicil of the minor child remained
that of the mother in the state of New York. The district court of Nevada in granting the
husband a divorce, upon substituted service, made no attempt to disturb the award of custody
of the minor child to the wife, but entered an order that the husband pay $25 per week for the
support of such minor child. This judgment, as noted, was based upon substituted service.
The court below in the present action found that the husband had complied with such
requirements of the divorce decree and, in effect, held that nothing further was required of
him despite the $40 weekly payments required by the New York decree. What we have said
above applies a fortiori to this phase of the appeal. The learned trial court was in error in thus
attempting to modify the effect of the New York decree with reference to the required
payments for the support of the child, basing its order upon the supposed effect of the Nevada
divorce decree.
[Headnote 8]
(4) Appellant wife also assigns as error the court's dismissal of her motion for an order of
contempt and for security. In her brief she devotes four lines to the assertion that this was an
abuse of discretion, and oral argument did not touch the point. In considering this question it
is to be observed that the wife's complaint sought alternative remedies from the court. The
first was for a judgment based upon the New York judgment for the accrued sums due and
the continued payment of the sums ordered by the New York court. The second alternative
sought the establishment of the New York judgment as the judgment of the Nevada court
enforcible as similar orders or judgments of this court for separate maintenance under our
statutes. The court granted the first alternative sought, but limited it to the time ante the
divorce, and entered no judgment on the alternative prayer.
The wife's notice of appeal from the judgment and from the order denying her motion for
new trial specifically states: Plaintiff does not appeal from the judgment of the court
granting to plaintiff $2976.85 [the amount accrued under the New York judgment up to the
date of the Nevada divorce] but does appeal from the court's refusal to grant judgment above
that amount to the extent of plaintiff's claim [including the sums accruing after the date of the
Nevada divorce]. No error is assigned in the court's failure to grant such alternative relief.
Accordingly that phase of the matter considered in Summers v. District Court, Washoe
County, 68 Nev. 99, 227 P.2d 201, and involved in plaintiff's prayer for the alternative relief
of establishing the New York judgment as a judgment of separate maintenance of this court
enforcible by contempt and by equitable remedies is not before us.
The judgment and order denying motion for new trial are hereby reversed, and the case is
remanded to the district court with instructions to enter judgment for plaintiff for the full
amount called for by the New York decree, subject to credit for payments made by or on
behalf of defendant as shown by the pleadings and proof. Appellant is allowed her costs.
March 31, 1952.
Per Curiam:
Rehearing denied.
____________
69 Nev. 96, 96 (1952) Woods v. Bromley
LILLIAN L. WOODS, Appellant, v. ELMER P. BROMLEY, Executor
of the Estate of Leland M. Woods, Deceased, Respondent.
No. 3672
March 20, 1952. 241 P.2d 1103.
Appeal from a declaratory judgment of the Eighth Judicial District Court, Clark County;
Frank McNamee, Judge, department No. 1, declaring that a written contract between
plaintiff's testator and defendant effected a severance of a prior joint tenancy.
Elmer P. Bromley, executor of the estate of Leland M. Woods, deceased, sued Lillian L.
Woods for declaratory judgment and other relief. From a judgment in favor of plaintiff,
defendant appealed. The Supreme Court, Badt, C. J., held that a property settlement
agreement between plaintiff's testator and defendant had by its terms vested in each of the
parties to the contract an undivided one-half interest in a parcel of real estate involved, thus
severing the joint tenancy theretofore existing.
Affirmed.
George E. Marshall, of Las Vegas, and C. Mert Reese, of Denver, Colorado, for
Appellant.
Jones, Wiener & Jones, of Las Vegas, and Alan G. Ritter, and H. E. Lindersmith, both of
Los Angeles, California, for Respondent.
1. Husband and Wife.
Where it was recited in property settlement agreement that parties agreed that they then held certain
property in joint tenancy and that it was their intent under the agreement to thereby vest title in themselves
as tenants in common so that each of them would hold title to undivided one-half interest as his or her sole
and separate property, respectively, contract itself vested title in common.
Where other portions of property settlement agreement clearly indicated intention of parties to execute
immediate severance of unities attendant upon joint tenancy and to vest in each of parties undivided
one-half interest in property, additional paragraph in which each of parties agreed to
execute and deliver all of assignments, releases, bills of sale, conveyances, or other
documents necessary to effectuate other provisions of will did not create a condition
precedent or prevent immediate vesting of title in common.
in each of parties undivided one-half interest in property, additional paragraph in which each of parties
agreed to execute and deliver all of assignments, releases, bills of sale, conveyances, or other documents
necessary to effectuate other provisions of will did not create a condition precedent or prevent immediate
vesting of title in common.
3. Declaratory Judgment.
Where, in husband's executor's suit for declaratory relief, plaintiff pleaded legal effect of property
settlement agreement as vesting tenancy in common in parties but stated that property had remained as of
record in names of parties as joint tenants and that upon husband's death controversy had arisen relating to
respective legal rights in property, and defendant's answer admitted intention to divide unities attendant
upon joint tenancy but asserted that agreement was executory in nature and that performance by defendant
could not be enforced without proof by plaintiff that his testator had complied with conditions precedent of
executing appropriate deed, admission in evidence of property settlement agreement did not constitute a
variance. N.C.L.1929, sec. 8626.
4. Contracts.
The rule that the construction given to a contract by parties should carry great weight applies only to
ambiguous contracts and not to contracts which are clear, certain and definite in their terms.
5. Contracts.
Where language used in contract is equivocal or ambiguous, subsequent acts or declarations of parties
showing practical construction put upon words may be resorted to for purpose of ascertaining their
intention.
In suit involving issue as to whether property settlement agreement had effected severance of joint
tenancy theretofore existing, evidence, to effect that husband had made statements after execution of
agreement to effect that he had no intention of carrying it out but would continue to consider property as
owned by parties in joint tenancy, did not constitute evidence as to the construction placed upon a doubtful
contract by parties to it so as to be admissible for purpose of ascertaining parties' intention, even if contract
were in fact ambiguous.
7. Estoppel.
Before one can successfully urge estoppel, he must show that he his been induced by adverse party to
change his position to his detriment.
8. Estoppel.
In husband's executor's suit for declaration that property settlement agreement had effected severance of
joint tenancy theretofore existing between husband and wife, where wife was not shown to have been in
any way prejudiced by husband's conduct in asserting that he would not be bound by contract vesting
title as tenancy in common and refusing to comply with wife's request that necessary
deeds be executed to vest tenancy in common in accordance with agreement, and
wife was not shown to have done any single act in reliance upon such conduct or to
have changed her position for worse, executor was not estopped from standing upon
agreement as creating tenancy in common and terminating prior joint tenancy.
contract vesting title as tenancy in common and refusing to comply with wife's request that necessary deeds
be executed to vest tenancy in common in accordance with agreement, and wife was not shown to have
done any single act in reliance upon such conduct or to have changed her position for worse, executor was
not estopped from standing upon agreement as creating tenancy in common and terminating prior joint
tenancy.
9. Equity.
Equity regards as done what in good conscience ought to be done.
Fact that husband's executor's complaint against wife presented cause for equitable relief would not
foreclose executor from seeking declaratory judgment. N.C.L.1929, secs. 9440 et seq., 9443, 9444.
Injunctive relief may properly be coupled with prayer for declaratory judgment. N.C.L.1929, secs. 9440 et
seq., 9443, 9444.
OPINION
The question here presented is whether a certain written contract entered into between
plaintiff's testator and defendant by its terms vested in each of the parties to the contract an
undivided one-half interest in the parcel of real estate involved, thus severing the joint
tenancy theretofore existing. The learned district judge held that such a severance was
effected. Defendant has appealed from the judgment and from the order denying her motion
for a new trial. She assigns as error (1) the ruling above recited; (2) the refusal of the court to
hold that a certain provision of the contract created a condition precedent, failure of
performance whereof precluded plaintiff from the relief sought; (3) the admission in evidence
of the written contract; (4) the court's rejection of appellant's contention that the contract is
ambiguous in its terms and should have been construed in the light of the deceased's
expressed intention not to be governed by it; (5) the court's rejection of the defendant's theory
that plaintiff was estopped by his testator's actions from claiming that a severance had
been effected; and {6) the court's rejection of defendant's contention that plaintiff's
relief, if any, was in equity and not by way of a complaint for a declaratory judgment.
by his testator's actions from claiming that a severance had been effected; and (6) the court's
rejection of defendant's contention that plaintiff's relief, if any, was in equity and not by way
of a complaint for a declaratory judgment.
Plaintiff's testator Leland M. Woods and defendant Lillian L. Woods, husband and wife,
during the pendency of a divorce action in Los Angeles County, California, entered into a
Property Settlement Agreement under date of September 15, 1948. This recited, by way of
preamble, the marriage relationship; the existence of a minor child (the daughter of the wife
by a former marriage who was thereafter adopted by the husband); the fact that the parties had
been living separate and apart for a long period of time; the representation of both parties by
their respective counsel; the contention of the wife that various properties constituted
community property of the parties as against the husband's contention that a substantial part
was his separate property; a prior agreement whereunder the wife had permitted the husband
to sell certain parcels of property for $25,250 upon his conveyance to her as her sole and
separate property of certain other parcels; a recital that it is contemplated and intended by
this Property Settlement Agreement that First Party [the wife] shall have and retain as her sole
and separate property six listed items of real and personal property; a similar recital that the
husband shall have six other listed items; that the sum of $80,000 to be paid to the wife is by
way of property division and settlement and not by way of alimony and is to be free of tax;
that the husband will protect the Las Vegas property (involved in this proceeding) until it is
free of debt; that the wife will be protected against any income tax liability, that it is
contemplated that neither party will sell or encumber his respective interest in the Las Vegas
property until the $80,000 has been fully paid to the wife; that the minor daughter is to be
provided for by the husband, that counsel for the respective parties have fully and explicitly
explained to them, and each of them understands" that the agreement constitutes a
property settlement and division, and that neither of the parties "have, or ever will have,
any right to modify or alter this agreement," etc., etc.
explicitly explained to them, and each of them understands that the agreement constitutes a
property settlement and division, and that neither of the parties have, or ever will have, any
right to modify or alter this agreement, etc., etc.
The body of the agreement carries into effect all of the matters thus recited by way of
preamble. The entire agreement, comprising 18 typewritten pages in addition to 2 pages
devoted to a description of 14 items of real and personal property involved in the settlement,
is too long to discuss in detail, nor is such discussion necessary. Provision Second reads as
follows:
It is further understood and agreed by and between the parties hereto that the Las Vegas
property (Item No. 9 on said Exhibit A'), shall be divided equally between the First Party and
the Second Party and that an undivided one-half interest therein shall be vested in each of said
parties as his or her separate property, respectively.
In the foregoing connection the parties hereto further agree that the said Las Vegas
property is now held by them in joint tenancy and that it is the intent of the parties under this
Agreement, and they hereby agree to vest title in themselves as tenants in common so that
each of them will hold title to an undivided one-half interest as his or her sole and separate
property, respectively.
Paragraph Eighth provides for the payment by the husband to the wife of $80,000, and by
Paragraph Tenth the husband agrees to execute a promissory note and trust deed covering
his undivided one-half interest in the Las Vegas property, being the property involved in
this action. Paragraph Twenty-Second canceled and abrogated an earlier property settlement
agreement executed in 1944. Paragraph Twenty-Fourth provided that any property, real or
personal, and any amount of money to be transferred or conveyed to First Party under this
agreement * * * shall be her sole and separate property, free from any right, interest or claim
of Second Party."
of Second Party. Paragraph Twenty-Fifth contained a similar provision running in favor of
the husband. Paragraph Thirty-First reads as follows:
Each of the parties hereto for himself and herself, respectively, agrees to execute and
deliver forthwith upon request therefor any and all assignments, releases, bills of sale,
conveyances, or other documents that may be necessary or proper to effectuate the purposes
of any of the foregoing provisions.
Paragraph Thirty-Third recited the understanding and the agreement of the parties that
their respective counsel had fully and explicitly explained to them the provisions of the
agreement and that each understood the same, and that, except as to provisions concerning the
minor child, neither of the parties have or ever will have, other than by another instrument in
writing executed by them for that purpose, any right to modify or alter this agreement. * * *
One original copy of the agreement was recorded in the office of the county recorder of Clark
County.
It appears that as to all items of property, except the Las Vegas property, deeds were
exchanged in accordance with the terms of the agreement. Although the defendant wife,
appellant herein, demanded that this be done with reference to the Las Vegas property, the
husband continuously, definitely and positively refused to comply. He died a year and a half
later, and the wife claimed that the Las Vegas property became vested in her as a surviving
joint tenant. The deceased husband's executor then brought this action.
At the conclusion of the evidence the district judge rendered an oral decision from the
bench in which he stated: The court feels that this agreement definitely granted a tenancy in
common when it was executed between the parties. * * * Thereafter the court signed
findings of fact to the effect that by virtue of the agreement the parties agreed that the Las
Vegas property should be divided equally between them and that an undivided one-half
interest should be vested in each as his or her separate property, respectively, and that,
although at the time of the agreement the property was held by them in joint tenancy, it
was their intention as evidenced by the agreement to vest an undivided one-half interest
in each.
as his or her separate property, respectively, and that, although at the time of the agreement
the property was held by them in joint tenancy, it was their intention as evidenced by the
agreement to vest an undivided one-half interest in each.
[Headnote 1]
(1) We see no other possible construction of the agreement. A mere reading of those
provisions heretofore quoted or described clearly indicates the intention of the parties to
execute an immediate severance of all of the unities attendant upon joint tenancy and the
vesting in each of the parties of an undivided one-half interest in the property.
[Headnote 2]
(2) Appellant assigns as error the court's refusal to hold that decedent's failure to request a
conveyance was a failure to perform a condition precedent which effectually foreclosed his
executor's right to relief. This contention grows from the provisions of Paragraph Thirty-First
of the contract quoted in full supra. Emphasis is placed by appellant on the words upon
request. She contends that as her husband never requested a conveyance during his lifetime,
no right to such conveyance ever arose, and that upon his death the entire title vested in her as
a surviving joint tenant, so that a request by her husband's executor was too late. She insists
that at all times the contract remained an executory one whereunder the existing joint tenancy
remained such until a conveyance by her, which in turn depended, as a condition precedent,
upon a request by her husband. If we could construe the agreement as not in itself vesting the
title in common, and if, further, we could construe Provision Thirty-First as creating a
condition precedent, there might be some force to appellant's argument. To construe
Provision Thirty-First as creating a condition precedent would, in our opinion, be a strained
and unwarranted construction.
[Headnote 3]
(3) Plaintiff identified the Property Settlement Agreement, and it was admitted in
evidence over defendant's objection. She earnestly asserts that the admission in evidence of
this contract constituted a variance; that plaintiff had simply pleaded the legal effect of
Provision Second of the contract as vesting a tenancy in common in the parties, while the
agreement itself presented a contract between the parties, executory in nature, whereunder
performance by the defendant could not be enforced without proof by the plaintiff that his
testator had complied with a condition precedent, namely, a request for the execution by
defendant for an appropriate deed. Under our approval of the court's holding that the contract
itself vested the title in common and that Provision Thirty-First of the agreement did not
create a condition precedent, this assignment necessarily falls. We may note that the
defendant did not attack the complaint by general demurrer or for uncertainty, nor did she
insist that it should plead the entire contract, whether by its legal effect or in haec verba or by
annexing the same as an exhibit. Indeed, defendant in her brief says: * * * We take the
position that the entire property settlement should be viewed with the purpose of construing
the said Property Settlement Agreement in the light of the whole thereof, and in the manner in
which the parties construed it. Plaintiff's complaint, after pleading the legal effect of
Paragraph Second of the agreement, pleaded further that although the property at the time of
the agreement was held by the parties in joint tenancy, it was their intent by virtue of the
agreement to vest title in themselves as tenants in common so that each would hold an
undivided half interest as his or her sole and separate property, respectively; that from the
date of the agreement on September 15, 1948, to the date of the death of plaintiff's testator on
February 20, 1950, the property remained as of record in the names of the parties as joint
tenants; that a controversy had arisen relating to the respective legal rights in the
property; that plaintiff executor claimed an undivided one-half interest and that neither of
the parties at the time of the death of the testator had any rights of survivorship by
reason of the severance created by the agreement, but that the defendant disputed these
contentions and claimed rights of survivorship.
joint tenants; that a controversy had arisen relating to the respective legal rights in the
property; that plaintiff executor claimed an undivided one-half interest and that neither of the
parties at the time of the death of the testator had any rights of survivorship by reason of the
severance created by the agreement, but that the defendant disputed these contentions and
claimed rights of survivorship. Defendant's answer admitted the execution of the agreement,
that the property described in the complaint was part of the subject matter thereof, and
admits that under and by virtue of the terms of said property settlement agreement, that the
parties agreed that the said real property described in Paragraph III should be divided equally
between the parties to said contract, and admits that at the time of making said property
settlement agreement on the 15th day of September, 1948, that the division of said property
was contemplated between the parties to the end that an undivided one-half interest in and to
said property should be vested in each of the parties as his or her separate property,
respectively, and admits that said property was at all times theretofore and at the time of the
making of said property settlement agreement and is now held in joint tenancy, and admits it
was the intent of the parties, Leland M. Woods and Lillian L. Woods, that by virtue of said
agreement of September 15, 1948, it was intended that said property should be conveyed so
that each of said parties would hold an undivided one-half interest in common as his or her
sole and separate property, and denies that by virtue of said agreement that title vested or has
ever vested in said property and denies that plaintiff has any interest in or to the same,
whatsoever or at all.
There is clearly no merit to the assignment that it was error to admit the agreement in
evidence as constituting a variance. N.C.L.1929, sec. 8636.
[Headnotes 4-6]
(4) Appellant's answer had alleged that subsequently to the agreement no steps had been
taken to vest the title in common, that she owned the entire interest as a surviving joint
tenant, and that no controversy existed.
title in common, that she owned the entire interest as a surviving joint tenant, and that no
controversy existed. She called some eight witnesses, all of whom testified, over plaintiff's
objection, to statements made by the husband after the execution of the agreement that he had
no intention of carrying it out but would continue to consider the property as owned by the
parties in joint tenancy. The trial court expressed itself as being of the opinion that a motion
to strike all of this testimony should be granted, but felt that no harm would be done by
leaving it in the record. Appellant contends that the court gave no weight to this testimony,
and such is undoubtedly the case. Appellant asserts that this was error under the familiar rule
that the construction given to a contract by the parties should carry great weight. There are
two simple answers to this contention. The rule applies only to ambiguous contracts and not
to contracts which are clear, certain and definite in their terms. We may accept as a correct
statement of the rule appellant's citation of 20 Am.Jur. 998, Evidence, sec. 1144. Where the
language used in a contract is equivocal or ambiguous, subsequent acts or declarations of the
parties showing the practical construction put upon the words may be resorted to for the
purpose of ascertaining their intention. But appellant concedes that the contract is not so
uncertain or ambiguous that it cannot be intelligibly read. Secondly, the evidence referred to
does not come within the category of a construction placed upon a doubtful contract by the
parties to it, but amounts simply to statements by one of the parties that he did not intend to
be bound by its terms. The assignment is without merit.
[Headnotes 7, 8]
(5) It is next contended that because of the deceased's assertions that he would not be
bound by the contract vesting the title as a tenancy in common, his executor was estopped
from standing upon the agreement as creating such tenancy, and as terminating the prior joint
tenancy. But essential elements of an equitable estoppel or a quasi estoppel are entirely
lacking.
or a quasi estoppel are entirely lacking. During the period of 18 months between the
execution of the agreement and Leland Woods's death, Lillian Woods repeatedly demanded
that the necessary deeds be executed to vest the tenancy in common in accordance with the
agreement. Leland Woods consistently refused to comply, and stated that he would not be
bound by the agreement. Lillian Woods was not shown to have been in any way prejudiced by
Leland Woods's conduct or to have done any single act in reliance upon it or to have changed
her position for the worse. The matter simply remained one of contention until Leland Woods
died. This court said in Farmers & Merchants National Bank v. Eureka L. & S. Co., 56 Nev.
218, 49 P.2d 354, 357: * * * before one can successfully urge estoppel he must show that he
has been induced by the adverse party to change his position to his detriment. We conclude
that the executor was not estopped.
[Headnotes 9-11]
(6) It is next contended that even if plaintiff's complaint presents a cause for equitable
relief, it is insufficient as a complaint seeking a declaratory judgment. The first case coming
to this court under our declaratory judgment act was Kress v. Corey, 65 Nev. 1, 189 P.2d 352.
The greater part of the Nevada uniform declaratory judgments act, N.C.L.1929, sec. 9440 et
seq., was there recited in the margin. It will be unnecessary to repeat it here, except to note
that section 4 of the act, not recited in the marginal note in Kress v. Corey, provided that a
person interested as an executor might have a declaration of rights or legal relations to
determine any question arising in the administration, including questions of construction of
writings. Powers of courts under the act were recited in section 5 not to be restricted by the
special enumerations, in any proceeding where declaratory relief is sought in which a
judgment or decree will terminate the controversy or remove an uncertainty. N.C.L.1929, sec.
9444. In Kress v. Corey we aligned ourselves with those courts adopting a broad and
liberal concept of the purposes of the declaratory judgments act, and said [65 Nev. 1
v. Corey we aligned ourselves with those courts adopting a broad and liberal concept of the
purposes of the declaratory judgments act, and said [65 Nev. 1, 189 P.2d 370]: It seems
clear, in any event, that injunctive relief may properly be coupled with a prayer for a
declaratory judgment. Thus it would appear that equitable cognizance of this controversy
and the application of the maxim Equity regards as done what in good conscience ought to
be done do not foreclose plaintiff from seeking a declaratory judgment. It is by no means
uncommon for courts to entertain a suit for a declaratory judgment coupled with a prayer for
equitable relief. See Borchard, Declaratory Judgments, (2d Ed.) pp. 135, 168, 340. And for an
action typical of the nature of the relief sought here, see Cadgene v. Cadgene, 17 N.J. Misc.
332, 8 A.2d 858 (affd. 124 N.J.L. 566, 12 A.2d 635), in which the court construed certain
deeds from a husband to himself and wife as constituting them tenants by the entirety to the
end that upon the death of the husband his widow became the sole owner.
The judgment and order denying new trial are affirmed with costs.
____________
69 Nev. 108, 108 (1952) Campbell v. Baskin
THOMAS A. CAMPBELL, Appellant, v. ROBERT T.
BASKIN and ROSE BASKIN, Respondents.
No. 3665
March 31, 1952. 242 P.2d 290.
department No. 1.
Robert T. Baskin and Rose Baskin brought action against Thomas A. Campbell to recover
for injuries sustained by Robert T. Baskin while an occupant in defendant's automobile,
which was involved in accident, on ground that defendant negligently drove automobile at a
rate of speed too high to negotiate curve in highway. From a judgment for plaintiffs,
defendant appealed. The Supreme Court, Eather, J., held that evidence sustained finding that
defendant was negligent.
Affirmed.
See also, 68 Nev. 469, 235 P.2d 729.
Forrest A. Betts, of Los Angeles, California, and Morse & Graves, of Las Vegas, for
Appellant.
Allen K. Perry, of Phoenix, Arizona, and Cornwall & Compton, of Las Vegas, for
Respondents.
1. Automobiles.
In action against driver of automobile for injuries sustained by occupant of automobile, when automobile
struck guardrail at right side of road, went into skid across and down road, and then struck embankment on
left side of road and followed that embankment down the road, on ground that driver drove automobile at
rate of speed too great to permit driver to negotiate curve, evidence sustained finding that automobile was
traveling considerably in excess of posted limit of 40 miles an hour and that driver was therefore negligent.
2. Automobiles.
Where driver of automobile and occupant, who resided in Nevada, left Nevada by automobile for a trip to
Arizona, and while in Arizona driver was involved in accident as result of negligence in driving at an
excessive rate of speed, and action was brought by occupant against driver in Nevada for injuries sustained
in accident, the law of Arizona, which has no automobile guest statute was applicable, and not the law of
Nevada, which has an automobile guest statute. N.C.L.1931-1941 Supp., sec. 4439.
3. Negligence.
struck guardrail at right side of road, went into skid across and down road and then struck embankment on
rate of speed too great to permit driver to negotiate curve, evidence sustained finding of trial court that
driver and occupant were not engaged in a joint enterprise and that purpose of trip was primarily for benefit
of driver, and that therefore negligence of driver could not be attributed to occupant.
4. Automobiles.
rate of speed too great to permit driver to negotiate curve, evidence sustained finding that occupant was not
contributorily negligent on ground that he knew that driver was allegedly intoxicated and that alleged
intoxication was caused in part by liquor furnished by occupant.
5. Automobiles.
rate of speed too great to permit driver to negotiate curve, court was authorized to find driver guilty of
simple negligence under allegations that diver operated automobile wantonly, wrongfully, unlawfully,
carelessly, recklessly and with gross negligence in that he drove automobile at wanton, unlawful, dangerous
and excessively high rate of speed so that he was unable to negotiate curve.
6. Damages.
Damages allowed in personal injury action were not excessive, on ground that plaintiff, by failing to
follow doctor's instructions, contributed to or aggravated injuries suffered by him, where testimony as to
alleged failure of plaintiff to follow doctor's instructions and consequent aggravation of injuries was far
from definite or conclusive, and there was no indication that trial judge, in fixing damage, did not consider
possible aggravation.
Where point assigned as error by appellant was not argued in briefs or oral argument, and no authorities
were cited by appellant in support of his contention, supreme court would deem the point to have been
abandoned.
Supreme Court, on appeal, would not disturb findings supported by substantial evidence.
OPINION
By the Court, Eather, J.
This action was instituted by plaintiffs and respondents, Robert T. Baskin and Rose
Baskin, husband and wife, to recover damages arising out of physical injuries sustained by
plaintiff, Robert T. Baskin, while riding as a guest passenger of defendant and appellant,
Thomas A. Campbell, in an automobile owned and operated by said defendant and appellant,
resulting when the vehicle, out of control of the driver, crashed into a road embankment.
The injuries sustained by the plaintiff, Robert T. Baskin, were alleged to have been caused
by the negligence of the defendant. The parties will be referred to by name, and to better
appreciate the contentions of both parties it is necessary that we briefly state the facts. The
accident in which Baskin sustained injuries happened on or about the 28th day of May, 1948.
At approximately 11:30 a. m. of the 28th day of May, 1948, Campbell came to the
Round-Up-Drive Inn (Baskin's place of business) in Las Vegas, Nevada, and informed Baskin
that he, Campbell, was going to take his boat to Willow Beach Fishing Camp in Arizona, and
make arrangements for a cabin for himself and his wife over the approaching Memorial Day
holiday weekend. Campbell invited Baskin to go with him and stated that they would do
some fishing if they had time. Baskin agreed to meet Campbell after the lunch hour. At
approximately 1 p. m. of said day Baskin drove his own car to his residence in Las Vegas and
shortly thereafter Campbell drove up in his car and they left from Baskin's residence. From
there Campbell drove his car in Las Vegas, Nevada, to get his trailer and boat. After hooking
up his trailer and boat to his car he drove back to a filling station where he bought and paid
for gasoline for his automobile.
back to a filling station where he bought and paid for gasoline for his automobile. He then
drove to the Boulder City Highway, which is United States Highway No. 93 and a
continuation of Arizona State Highway No. 466. He then drove out United States Highway 93
to Boulder City and on down across Hoover Dam; thence over Arizona Highway 466 for
approximately 14 miles southeast of Hoover Dam, at which point he turned south and drove 4
miles over a graveled road to Willow Beach Fishing Camp arriving at approximately 3:30 p.
m. of said day.
Upon arrival at said camp Campbell endeavored to secure accommodations for himself
and his wife over the weekend, but was unable to do so. They thereupon placed Campbell's
boat in the river. The boat was equipped with two outboard motors. They then started the
large motor and went upstream approximately five miles, whereupon they switched to the
trolling motor and fished upstream several miles. They both fished hard for approximately
three to three and one-half hours, returning to the dock at Willow Beach just at dusk.
Upon their return to the fishing dock all equipment and supplies, except Baskin's fishing
pole and tackle, were left in the boat which was tied and left at the dock for the expected use
of defendant and his wife early the following morning.
Campbell again drove his automobile with Baskin, as a passenger, up to the main highway,
Arizona State Highway No. 466, and then turned northwest thereon, traveling approximately
eight miles to a point approximately five and nine-tenths miles south and east of Hoover
Dam, at which point the highway makes two compound turns to the left where the said
accident occurred.
Campbell's first contention is that the evidence does not warrant the court's finding of
negligence. The findings of the court in part were to the effect that defendant's automobile,
which was being operated and controlled solely by said defendant, due to the sole negligence
of the said defendant in driving at a high rate of speed dangerous under the
circumstances not only to the occupants of his car but also to anyone on the road, got out
of control of the said defendant and crashed into the said embankment as aforesaid; that
said defendant drove and operated said automobile at said time and place at a rate of
speed greater than the rate of speed at which he might have kept said automobile under
control.
negligence of the said defendant in driving at a high rate of speed dangerous under the
circumstances not only to the occupants of his car but also to anyone on the road, got out of
control of the said defendant and crashed into the said embankment as aforesaid; that said
defendant drove and operated said automobile at said time and place at a rate of speed greater
than the rate of speed at which he might have kept said automobile under control. * * *
The only testimony available as to the events leading up to the accident is that of Baskin.
As a result of the accident Campbell suffered retrograde amnesia and had no recollection
whatsoever of any events following the reaching of the main highway on his return from
Willow Beach. Baskin's testimony was in part as follows:
We came up on the top of that crest and there is a long downward hill before you come
into this turn, and, in other words, I would say he was hitting between fifty and sixty, and it
seemed like as we started down the car picked up a lot of speed.
Q. Did either of you say anything at that time? A. Yes, he saidhe.
Q. Who is he'? A. Tommy said, I got a dinner date with my wife, and I'll have you home
in a few minutes, Buddy.' I said to him. Slow down and take it careful, because let's get
home altogether.' So just at the time I got through we came right up on that curve where that
forty-mile sign is, and then he cut in fromto thewhere the road went to turn in there, he
cuts in on the line there and comes right up on thewhere he is going to make a turn, and it
looks like he cuts wide, and comes to it too wide, and scrapes the railing; and when he
scrapes it, he threw his weight over, and when he threw his weight around the car just arched.
It seemed to me that it just arched and just turned back the other way, and went right into the
mountain and just exploded. In other words, it felt like he hit something that didn't move or
give or anything. And I must have fallen out. All I can remember is I washadI was
caught in the door and it was dragging me under the car and it was bumping into the
mountain, and I was being mashed, and all I could think of was 'when is this going to
stop?
I was caught in the door and it was dragging me under the car and it was bumping into the
mountain, and I was being mashed, and all I could think of was when is this going to stop?
When is it going to get over with?' Suddenly it seemed like I was threw out in the canyon.
* * *
Q. Are there any signs on the road on that hill? A. There is two signs. One sign states
there was a speed limit of forty miles, and down below thereI don't know how many feet,
there is a curve there with diamonds in ita very crooked curve. It was just about the time
we hit this speed sign here is where we picked up speed. * * * Just past this crooked curve
herehe cut right in here. * * *
Q. In other words, when he came down, in going into the turn, he got himself on the
left-hand lane, across the white solid line, is that correct, or not? A. That is correct.
Campbell contends, however, that Baskin's testimony was so thoroughly discredited that
no consideration whatsoever should be given it. Certainly it must be said that a reading of the
record tends to create considerable doubt as to the reliability of Baskin's testimony. Campbell
points to the following:
First, that by his sworn complaint Baskin alleged that Campbell's negligent operation of
the car commenced as soon as he reached the main highway and continued to the time of the
accident; that by demurrer Campbell drew attention to the fact that Baskin had not shown that
any protest against such negligent operation had ever been made; that on trial Baskin altered
his position to show careful driving by Campbell until mere seconds before the accident
occurred.
Second, that reports of the United States Rangers made shortly after the accident were to
the effect that Baskin had stated that the accident was due to Campbell's car being crowded
off the highway by a car traveling in the opposite direction; that as a result road blocks were
established by the rangers and the Arizona State Police; that subsequently in a statement
made to an insurance adjuster and signed by Baskin this same story was reiterated by
him; that the whole thereof was repudiated by him at the time of the trial.
Arizona State Police; that subsequently in a statement made to an insurance adjuster and
signed by Baskin this same story was reiterated by him; that the whole thereof was repudiated
by him at the time of the trial.
Third, that a day prior to trial Baskin, in a deposition, had falsely testified under oath that
he did not know where he and Campbell had stopped for refreshments on the way to Willow
Beach; that as a matter of fact (as admitted by Baskin on trial) they had stopped at his sister's
grocery, as he well knew.
Notwithstanding these most effective attacks upon his credibility, however, his story as we
have quoted it and the court's findings of negligence are borne out by the physical facts of the
accident as reported by other witnesses and as demonstrated by exhibits.
The physical evidence at the scene of the accident demonstrates that the car struck a
guardrail to the right or north side of the road, knocking loose a length of cable and a couple
of eyebolts attached to the post; that it then went into a skid in an arc across and down the
road for 81 feet during the course of which skid the car itself was turning counterclockwise;
that it then struck the embankment to the left or south side of the road, the point of impact
being the right front of the car. The car then proceeded down the highway, rear first, for 240
feet, following the embankment on the south side of the road, coming to rest nosed into the
embankment facing back towards Willow Beach with the rear of the car angling out and
across the left or south side of the highway.
Campbell was so thrown from the car that his body rested about 12 or 15 yards from the
car on towards Boulder City. Baskin's body was found 10 or 12 yards the other side of the car,
back towards Willow Beach. It is thus apparent that in the course of the car's slowing to a
complete stop there were four force-absorbing or retarding contacts; one, the original contact
with the guardrail; two, the skid for 81 feet across the highway; three, the contact with the
embankment; four, the backward progress of the car down the road for 240 feet.
way; three, the contact with the embankment; four, the backward progress of the car down the
road for 240 feet. Each of these contacts is deserving of analysis. The first, that of the
guardrail, was of sufficient force to jar loose the eyebolts and cable with corresponding
retarding effect upon the car. One can do no more than guess at the extent in miles per hour of
such retarding effect. As to the second, the 81-foot skid across the highway, there was
considerable testimony, much of it conflicting. One witness present the night of the accident
testified that there were two parallel skid marks separated by about a car width. Another
testified that there was one skid mark. One witness who returned the day following the
accident testified positively there were four skid marks. A moving picture taken three days
later and after the marks might to some extent have been erased by traffic, showed a single
mark for the full 81 feet with a second mark joining the first at about the halfway point.
One expert testified that on the basis of a four skidmark showing, a car on that particular
stretch of road would have to be traveling 45 1/2 miles per hour to skid 81 feet before being
brought to a complete stop. A second testified the speed would be 35 1/2 miles per hour and
that if the marks were less than four, one would be compelled to do some guessing. There is,
however, testimony on the basis of which one could conclude that the retarding effect of this
skid in miles per hour was between 35 1/2 and 45 1/2 miles per hour.
As to the third contact, the impact with the embankment, again one can do no more than
guess. An exhibit in the form of a photograph showed the condition of the car. It is far from
demolished. It had, however, quite clearly suffered a very sharp and forceful blow on its right
front end, sufficient in force to break the front axle, bend or dish the right front wheel in on
its lower edge, severely spring and buckle the right front door and shatter the glass in that
door's window.
The impact obviously was a severe one as Baskin's testimony would indicate and it would
have had a correspondingly severe retarding effect upon the car's progress.
As to the fourth contact, that of the 240-foot progress on down the road, testimony
indicates that it is improbable that the car could have coasted freely on down the hill due to
the condition of the right front wheel. As one witness testified on examining the photographs:
It wouldn't roll. It took something to get it down there. As to the marks left by the car
during the course of this progress, one witness stated that he had seen where something had
drug down the road. Another testified to a disturbance in the gravel off the edge of the
road for a distance of about 75 paces. The third testified he noticed a skid mark along the
inside of the curve for about 240 feet. Another witness testified that if the car struck the
embankment a glancing blow I believe it would be possible for it to go on down from the
point of impact, continuing on; just the momentum would carry it on. A conclusion which
may well be drawn from the physical facts is that the momentum of the car forced it against
the drag of the right front wheel, the further distance of 240 feet after impact with the
embankment before it ultimately came to rest.
[Headnote 1]
The sum of these retarding effects in miles per hour would be the speed at which the car
was traveling when it first collided with the guardrail. While it is impossible to arrive at any
accurate estimate, in our view there is ample evidence in the physical facts of the accident
themselves, from which the trial court may have concluded that the car was traveling
considerably in excess of the posted limit of 40 miles per hour and that the driver,
accordingly, was guilty of negligence in driving at an excessive rate of speed.
[Headnote 2]
Defendant's next contention is that the court erred in applying to the accident the law of
the state of Arizona rather than that of Nevada.
in applying to the accident the law of the state of Arizona rather than that of Nevada. Under
sec. 4439, N.C.L.1929, 1931-1941 Supp., a guest may not recover for personal injuries in
absence of intoxication, willful misconduct, or gross negligence of such owner, driver or
person responsible for the operation of such vehicle. Arizona has no such statute and a guest
may recover upon proof of simple negligence of the person responsible. In its decision the
trial court stated that the evidence failed to show wanton, willful or gross negligence on the
part of the defendant, but that plaintiff's allegations with respect thereto were sufficient to
include a charge and support a finding of simple negligence. The accident having occurred
in Arizona it is clear that Arizona law applies. Mitrovich v. Pavlovich, 61 Nev. 62, 114 P.2d,
1084.
[Headnote 3]
Defendant contends, however, that the trip was a joint venture being one of many such
excursions and that under these circumstances the venture having been undertaken from
Nevada the law of Nevada should apply. We need not decide whether under a proper showing
of joint venture the law of Nevada would become applicable. The trial court specifically
found that it is not true that on the 28th day of May, 1948, the plaintiff, Robert T. Baskin,
and the defendant were engaged in a joint enterprise; that it is not true that plaintiff, Robert T.
Baskin cooperated in, actively or otherwise, or participated in the direction or operation of
said automobile in which he was riding at said time and place as aforesaid; and that the
purpose of the trip was primarily for the benefit of said defendant. Under the facts recited at
the outset of this opinion it cannot be said that such findings were without support.
[Headnote 4]
Defendant further contends that the evidence shows Campbell to have been intoxicated to
Baskin's knowledge and that such intoxication was caused in part by liquor furnished by
Baskin. It is contended that under the Arizona case of Franco v. Vakares, 35 Ariz.
Arizona case of Franco v. Vakares, 35 Ariz. 309, 277 P. 812, Baskin is thus precluded from
recovery by virtue of contributory negligence. Upon this phase of the case the evidence is in a
state of utmost confusion and conflict. There is much conflict as to the amount of beer
purchased, as to the amount of beer and whiskey consumed, as to the evidence of alcohol
upon the breath of respective parties at the time of the accident, as to their condition with
reference to intoxication or sobriety upon leaving Willow Beach. Campbell himself testified,
As I stated previously any time anybody ever talked to me about this, as far as being drunk I
said I wasn't cold sober and I wasn't sloppy drunk. That is as far as I can go. There is not,
however, one scintilla of evidence as to whether Baskin knew or should have known that
Campbell's condition was one of intoxication or to rebut Baskin's denial of any knowledge of
it. The trial court stated in its decision [the defendant] failed to prove by any competent
evidence that the said plaintiff knew or should have known by the exercise of ordinary care
that the defendant was under the influence of intoxicating liquor or that the defendant in fact
was drunk to any degree. Certainly under the state of the record in this respect we are unable
to dispute this determination.
Defendant further contends that the trial court erred in disregarding the specific acts of
negligence pleaded in plaintiff's and respondent's verified complaint and predicating its
decision and its findings and its judgment on simple negligence only.
The complaint alleges that the defendant operated his automobile wantonly, wrongfully,
unlawfully, carelessly, recklessly and with gross negligence in that he operated and drove said
Plymouth Coupe automobile * * * at a wanton, unlawful, dangerous and excessively high rate
of speed, to-wit, at a rate of approximately 80 to 90 miles per hour: * * * and that said
defendant drove said automobile at a rate of speed too great to allow said defendant to
negotiate said curve in said highway and remain upon the paved and traveled portion of
said highway."
great to allow said defendant to negotiate said curve in said highway and remain upon the
paved and traveled portion of said highway.
[Headnote 5]
It would not appear that the trial court disregarded the specific acts of negligence pleaded
but that the court simply found negligence to exist in a lesser degree than that alleged. It is
generally recognized that under the allegations of gross negligence or of wantonness or
willfulness, proof may be made and recovery had for simple negligence on the theory that the
greater wrong includes the lesser. See 65 C.J.S. 946, Negligence, sec. 201.
Further the appellant contends that the damages allowed by the trial court were excessive,
since the plaintiff, by failing to follow his doctor's instructions, contributed to or aggravated
the injuries suffered by him as a result of the accident. As to damages the court found as
follows: As a result of the accident, due solely to the negligence of the defendant as
aforesaid, said plaintiff, besides special damages, received severe personal injuries causing
partial permanent disability and pain, which he will continue to suffer the rest of his life.
Taking into consideration the age and occupation of said plaintiff at the time of the accident,
[Baskin testified he is 54 years old] and considering the evidence applicable to damages
together with various awards upheld in other cases, and considering the law with respect to
the present value of damages resulting from permanent disability, the court concludes that
said plaintiffs are entitled to special damages in the sum of $9,942.10, and in addition,
general damages in the sum of $38,000.00 on their first cause of action, and the further sum
of $500.00 on their second cause of action.
[Headnote 6]
Testimony as to failure of the plaintiff to follow his doctor's instructions and consequent
aggravation of his injuries is far from definite or conclusive. Neither is there any indication
in the record that the trial judge in fixing damages as he did, did not take into
consideration any such possible aggravation.
there any indication in the record that the trial judge in fixing damages as he did, did not take
into consideration any such possible aggravation. Accordingly we do not feel there is any
merit in this contention.
[Headnote 7]
Finally defendant contends that the demurrer to the complaint was improperly overruled.
The complaint alleged negligence of the defendant commenced from the time he turned onto
the highway, on his return trip, and continued until the time of the accident. A demurrer was
interposed on the grounds that the complaint did not allege any acts on the part of the plaintiff
in protest against such negligence. As we have already mentioned, at the time of the trial
plaintiff abandoned his contention that the acts of negligence commenced from that point and
changed his story to contend that the acts of negligence commenced only seconds before the
accident happened. While this point is assigned as error it was not argued in briefs or oral
argument and no authorities are cited by appellant in support of this contention in this regard.
Therefore, we deem the point to have been abandoned.
Many incidental points are raised. It would appear, however, that there is substantial
evidence to support the findings and that none of the assignments of error is well taken.
In the case of Shore Line Oil Co. v. King, 68 Nev. 183, 228 P.2d 395, 400-401, it is stated:
Appellant states * * *. We are inclined to agree with this statement, which accounts for
the fact that we have found it unnecessary to indulge in any extensive citation of authorities.
It may be true that the facts are not as conclusive as might be hoped for, but it is apparently
the result of the very nature and circumstances of the case. * * * Accordingly, as to many if
not most of appellant's contentions, we are guided by the familiar rule that we will not disturb
the findings if they find substantial support in the evidence.
[Headnote 8]
Does the evidence in this case support the findings and judgment? We think it is clear that
it does, and, it so appearing, the judgment must be affirmed.
The judgment and order denying the motion for a new trial should be affirmed, with costs.
It is so ordered.
____________
69 Nev. 121, 121 (1952) State v. Alsup
THE STATE OF NEVADA, Respondent, v. RALPH
HOWARD ALSUP, Appellant.
No. 3683
April 4, 1952. 243 P.2d 256.
Appeal from the Eighth Judicial District Court of the State of Nevada, in and for the
County of Clark; Frank McNamee, Judge, department No. 1.
Ralph Howard Alsup was convicted of the crime of assault with a deadly weapon with an
intent to inflict bodily injury, and appeals. The Supreme Court, Eather, J., held that evidence
sustained the conviction.
Affirmed.
John W. Bonner and Harry E. Claiborne, both of Las Vegas, for Appellant.
W. T. Mathews, Attorney General, and Roger D. Foley, District Attorney of Clark County,
for Respondent.
1. Criminal Law.
Motion for change of venue is addressed to sound discretion of trial court, but it is a judicial and not an
arbitrary discretion and if used in an arbitrary and oppressive manner appellate court is bound to correct
error. N.C.L.1929, sec. 10913.
2. Criminal Law.
Defendant is entitled to a change of venue when it is impossible to obtain an impartial jury or there is
such a state of public excitement against defendant that even an impartial jury would be likely to be
intimidated and overawed by public demonstrations against the accused.
69 Nev. 121, 122 (1952) State v. Alsup
jury would be likely to be intimidated and overawed by public demonstrations against the accused.
N.C.L.1929, sec. 10913.
3. Criminal Law.
Where defendant moved for a change of venue and submitted affidavits of various residents of county in
support of his motion, trial court in exercise of proper discretion could well have regarded affidavits
reflecting opinion of the affiant that an impartial trial could not be had standing alone as insufficient
probative force to authorize change of venue and conclusion was to be drawn by court and not by
defendant and his witnesses, and court was to be satisfied from facts and circumstances positively sworn to
in affidavits and not from general conclusions to which defendant might swear, or to which his witnesses
might depose, that in their opinion defendant could not receive a fair trial. N.C.L.1929, sec. 10913.
4. Criminal Law.
In prosecution for assault with intent to kill, record did not show that denial of defendant's motion for a
change of venue was error. N.C.L.1929, sec. 10913.
5. Criminal Law.
In prosecution for assault with intent to kill, where district attorney, immediately following testimony of
witness in case, as he was leaving stand said, Who are the police working for in this case, the defense or
the prosecution? and at such time district attorney was speaking to his associate and not to witness and no
objection was made by defendant to remarks and only request that jury be instructed to disregard remarks
came from district attorney, which court refused because it believed jury did not hear remarks, there was no
prejudicial error.
6. Criminal Law.
In prosecution for assault with intent to kill, where deputy district attorney referred to defendant as a
little giant, and at time remark was made counsel for defendant objected to statement and asked that jury
be admonished to disregard it and court stated, the jury will take into consideration the evidence and the
fact that those words did not come out in evidence, and will disregard it, there was no prejudicial error.
7. Homicide.
In prosecution for assault with intent to kill, determination of trial court, that it was for jury to decide
whether or not theory or theories addressed by district attorney as to how defendant may have received
injuries to his head, were reasonable inferences from the evidence, was proper.
8. Homicide.
Where defendant was charged with assault with intent to kill and was found guilty by trial jury of lesser
included offense, that of assault with a deadly weapon, defendant was not prejudiced by instructions having
to do with crime of assault with intent to kill.
69 Nev. 121, 123 (1952) State v. Alsup
9. Criminal Law.
In prosecution for assault with intent to kill, refusal to give defendant's requested
instructions, subject matter of which was in part covered by another instruction, on the
statutory definition of reasonable doubt, was not error, since requested instruction
contemplated only two theories of shooting, one accidental and other intentional and
omitted to take into account possibility of a negligent shooting.
10. Criminal Law.
In prosecution for assault with intent to kill, where evidence in case was not entirely
circumstantial, and instruction was given which clearly defined for jury the two classes
of evidence, direct and circumstantial, defendant's proposed instructions were properly
refused.
11. Criminal Law.
Instructions to be applicable must have some basis in evidence.
12. Assault and Battery.
Evidence sustained conviction of assault with a deadly weapon with an intent to inflict
bodily injury.
OPINION
By the Court, Eathe, J.:
The appellant, Ralph Howard Alsup, defendant below, was charged by information in the
district court of Clark County, Nevada, with the crime of assault with intent to kill, which was
alleged to have been committed on or about December 2, 1949. The defendant was tried by a
jury, convicted of the crime of assault with a deadly weapon with an intent to inflict bodily
injury; his punishment was fixed at not less than one year nor more than two years in the
penitentiary and in addition thereto the defendant was ordered to pay a fine in the sum of
$1,500 and judgment and sentence entered accordingly.
From the order denying appellant's motion for a change of venue, the order denying
appellant's motion for a new trial, the denial of a motion in arrest of judgment, and from the
judgment, the defendant has appealed.
The charge resulted from a fight between the defendant and one Ray Folsom during the
course of which Folsom was shot.
69 Nev. 121, 124 (1952) State v. Alsup
Folsom was shot. The fight occurred in a poorly lit hallway and while many other persons
were present observing the fight, the lack of illumination resulted in conflicting statements as
to the details of the actual shooting. There was, however, direct testimony that the shot was
fired by defendant. He claimed that the shot was fired in self-defense.
Counsel for appellant have made numerous assignments of error. We will consider the
assignments presented in the briefs and orally argued in regular order.
(A) The first assignment of error is that the court erred in denying appellant's motion for a
change of venue. This motion was made under section 10913, N.C.L.1929, which reads as
follows:
A criminal action prosecuted by indictment or information may be removed from the
court in which it is pending, on application of the defendant or state, on the ground that a fair
and impartial trial cannot be had in the county where the indictment or information is
pending.
[Headnotes 1, 2]
This court in the case of State v. Casey, 34 Nev. 154, 163, 117 P. 5, 8, said:
There are few cases that present themselves to appellate courts where it is more difficult
to determine upon any settled principles or rule of action than in these cases relating to a
change of venue. By all it is admitted that there is a broad discretionary power allowed the
court of original jurisdiction. But whilst that court has such discretion, it is still a judicial and
not an arbitrary discretion. If that discretion is used in an arbitrary and oppressive manner an
appellate court is bound to correct the error, but to distinguish between what is and what is
not an abuse of that discretion is often a very nice and difficult question. There are two
circumstances, the existence of either of which should entitle the defendant to a change of
venue. The one is the impossibility of obtaining an impartial jury. The other is such a state of
public excitement against the defendant that even an impartial jury would be likely to be
intimidated and overawed by public demonstrations against the accused."
69 Nev. 121, 125 (1952) State v. Alsup
impartial jury would be likely to be intimidated and overawed by public demonstrations
against the accused.
See also State v. McLane, 15 Nev. 345, 372; State v. Gray, 19 Nev. 212, 215, 8 P. 456;
People v. Plummer, 9 Cal. 298, 299, and People v. Mahoney, 18 Cal. 180, 181.
At this point we deem it necessary to state the pertinent facts relative to the motion for a
change of venue.
This case was originally set for trial on the 24th day of September, 1950. On the 21st day
of September, 1950, appellant moved for a change of venue. A hearing on the motion was
held on September 22, 1950, at which time the court, having heard and considered the
evidence offered by both appellant and respondent in relation thereto, denied the motion but
granted the appellant the privilege of renewing the same after jurors were examined.
Immediately thereafter appellant perfected an appeal to this court, and the trial court, over the
state's objection, granted appellant's motion for a continuance until after the determination of
the appeal from the trial court's order denying the motion for a change of venue.
On January 25, 1951, this court affirmed the trial court's order denying the motion for an
order for a change of venue. (State v. Alsup, 68 Nev. 45, 226 P.2d 801.) The case was again
set for trial on March 12, 1951. On February 16, 1951, it was ordered that the judge of the
said court and the deputy county clerk of Clark County, Nevada, draw from the jury box
containing names of jurors of Clark County, Nevada, the names of 200 persons, the persons
so drawn to be summoned to appear before the court on Monday, March 12, 1951, at the hour
of 10 a. m. then and there to act as jurors before said court.
On the 12th day of March, 1951, the above case came on for trial before a jury. After 25
veniremen were examined a jury was selected, and after three more veniremen were
examined, an alternate juror was selected. At the conclusion of the selection of the jury
counsel for defendant renewed his motion for a change of venue, "based upon the record
which we made in the prior hearing, and the affidavits and newspaper clippings, which I
wish to have made a part of the record in this motion, and we now renew the motion and
ask that this court grant us a change of venue upon the grounds that it is not possible to
obtain a fair and impartial jury in Clark County, Nevada, and that if we had obtained a
jury, that they would probably be overawed and intimidated by public clamor, public
prejudice and statements from other jurors."
69 Nev. 121, 126 (1952) State v. Alsup
counsel for defendant renewed his motion for a change of venue, based upon the record
which we made in the prior hearing, and the affidavits and newspaper clippings, which I wish
to have made a part of the record in this motion, and we now renew the motion and ask that
this court grant us a change of venue upon the grounds that it is not possible to obtain a fair
and impartial jury in Clark County, Nevada, and that if we had obtained a jury, that they
would probably be overawed and intimidated by public clamor, public prejudice and
statements from other jurors.
The motion was denied, the court pointing out that of the 12 jurors who served, not one
had been challenged for cause. This fact, together with the other circumstances attending the
early selection of the jury undoubtedly support a determination that it was not impossible to
obtain an impartial jury. They do not, however, dispose of the contention that a state of public
excitement against the defendant existed in the community to a point that would overawe and
intimidate even an impartial jury. In this respect the motion was supported by the affidavits of
approximately 145 parties from Las Vegas and immediate vicinity who expressed the opinion
that the defendant could not secure a fair and impartial trial in Clark County on account of
unfavorable publicity which he had received as a result of the alleged assault. These affidavits
were subscribed and sworn to on September 19, 1950.
Also attached were photostat copies of sundry newspaper clippings, including news
articles and certain advertisements of Nevada Citizens Committee which are said to have so
inflamed public opinion against the defendant as necessarily to have influenced the jury. The
publications referred to must be grouped into periods of their respective publications in order
to determine the weight they give to this contention. The shooting took place December 2,
1949. The first publication complained of appeared December 4, 1949, and appears to be
along the line of usual journalistic reporting of what occurred.
69 Nev. 121, 127 (1952) State v. Alsup
what occurred. It ended with a statement that Texas authorities had reported a prior criminal
record of Alsup in that state. On December 12, 1949 a large advertisement was published by
Nevada Citizens Committee which called on citizens to make the state too hot for comfort
for racketeers, whether they be union, gambler, or any other kind of a racketeer. It referred to
the recent outrageous incident in Southern Nevada in which a high union official is accused
of shooting another union man in connection with a labor meeting. It condemned the act of
going armed, referred to this hoodlum element and demanded laws that would screen out
the ex-criminals, the felons, the racketeers, and the goons from leadership in any union group
in Nevada. The next group of publications occurs in April, 1950, purporting in more or less
general terms to criticize alleged unfair union labor practices. It will be noted that all of this is
still approximately one year prior to defendant's trial in March, 1951. The last publication
attached to the affidavits is a full page advertisement of Nevada Citizens Committee,
September 3, 1950, addressed to Nevada voters and seeking defeat of sundry candidates
supported by the defendant in the coming elections of that month. This full page
advertisement also included brief reproductions of the earlier news items concerning the
shooting and Alsup's arrest, etc. Its purpose appears to have been in the main political. The
names of four candidates for office were printed in large type as sponsored by appellant and
their rejection at the polls is called for. This was some six months before appellant's trial, and
no newspaper publicity of any kind during this six months' period is included in the exhibits.
It would appear to have been entirely within the exercise of the discretion and judgment of
the trial court to conclude that the publicity of September, 1950, devoted to the main purpose
of the September, 1950 elections, the publications of April, 1950 and the publications of
December, 1949, did not create such a state of feeling in Clark County in March, 1951, as to
subject the jury to its influence, even conceding their inflammatory nature.
69 Nev. 121, 128 (1952) State v. Alsup
1951, as to subject the jury to its influence, even conceding their inflammatory nature.
The district attorney of Clark County filed an answer to the motion for change of venue
and attached affidavits from approximately 56 people from Las Vegas and immediate vicinity
who expressed the opinion that they believed the defendant could have a fair and impartial
trial in Clark County. These affidavits were subscribed and sworn to on September 21, 1950.
The affidavits filed by appellant upon which the motion for a change of venue was based
were exceedingly unsatisfactory; they in the main set forth merely that in the opinion of the
affiant, the appellant could not have a fair trial, owing to the prejudice against him. In all of
the affidavits the affiant states in substance: I have heard the case of Ralph Alsup discussed;
during said time I have heard numerous persons discuss said case. The discussion involved
the following facts: They have referred to him as a labor gangster and that he should be put in
jail. We have to get rid of labor gangsters. He should be run out of town. A bad influence and
detriment to the community. People have said that they would like to be on the jury to send
him up for life. That he should be ridden out of town on a rail, etc. From such discussions it is
my opinion (so read the affidavits) that the effect of such discussions and the present feeling
among the majority of Clark County residents insofar as the trial of Alsup now set for
September 25, 1950, is as follows: I don't believe that Mr. Alsup could get a fair trial in Clark
County: Mr. Alsup could not receive a fair trial in Clark County in my opinion, etc.
The affidavits were signed and sworn to on the 19th day of September, 1950, whereas the
trial of the case was not heard until the 12th day of March, 1951.
[Headnote 3]
In all of the affidavits the mere opinion of the affiants that an impartial trial could not be
had was set forth.
69 Nev. 121, 129 (1952) State v. Alsup
While the affidavits may well reflect upon the ability of the affiants or those with whom they
had discussed the case individually to serve as impartial jurors, they do not necessarily
support the contention that such prejudice existed in the popular mind on the date of the trial
as would interfere with the impartial administration of the law. The affidavits do not establish
the fact that all of the people of Clark County were so prejudiced against him as to become
disqualified to sit as jurors in the case. The court, in the exercise of a proper discretion could
well have regarded these affidavits standing alone of insufficient probative force to authorize
a change of venue. The conclusion is to be drawn by the court and not by the defendant and
his witnesses, and the court must be satisfied from the facts and circumstances positively
sworn to in the affidavits, and not from the general conclusions to which the defendant may
swear, or to which his witnesses may depose, that in their opinion the defendant could not
receive a fair trial.
In the case of State v. Fouquette, 67 Nev. 505, 221 P.2d, 404, 411, this court said:
The existence of either of two circumstances should entitle a defendant to a change of
venue: (1) The impossibility of obtaining an impartial jury; or (2) Such a state of public
excitement against the defendant, that even an impartial jury would be likely to be
intimidated and over-awed by public demonstrations against the accused. State v. Millian, 3
Nev. 409, 432; State v. Casey, 34 Nev. 154, 164, 117 P. 5.
After considering affidavits and newspaper articles offered in support of the application
and oral testimony offered in opposition thereto, the court properly held that the evidence was
not sufficient to justify a change of venue because of the existence of any great public
excitement against the defendant, and that the impossibility of obtaining a fair and impartial
jury could best be determined when the jurors were examined.
69 Nev. 121, 130 (1952) State v. Alsup
The application was thereupon denied, without prejudice on the part of the defendant to
renew his motion at a later time.'
The method adopted by the court to determine whether or not a fair and impartial jury
could be obtained has been approved by this court. State v. Gray 19 Nev. 212, 215, 8 P. 456;
State v. Teeter, 65 Nev. 584, 200 P.2d 657, 671, 690.
In the case of People v. Cullen, 37 Cal.2d 614, 234 P.2d 1, 8, (Supreme Court of
California) the court stated:
There was no abuse of discretion in denying the motion for a change of place of trial or in
disallowing the challenge to the jury panel. The motion was submitted on conflicting
affidavits from which the court could justifiably conclude that at the time of the ruling and the
trial the clamor and prejudice, if any existed, had subsided and that there was no reason why
the defendant could not be tried impartially and fairly by the jury selected. It is also to be
assumed that the court had some knowledge of conditions existing in the county.
In People v. Yeager, 194 Cal. 452, 481, 482, 229 P. 40, it was stated that a court may not
be required to grant a motion for a change of venue because there was some excitement in the
county regarding the matter, or that the press had expressed hostility; and that a denial of a
change of venue might well be predicated on the fact that the excitement had subsided before
the application was made.
In the case of Jones v. State, 236 P.2d 102, 108, (criminal court of appeals of Oklahoma)
the court stated as follows:
The granting or refusing of a change of venue is a matter resting within the sound
discretion of the trial court to be disposed of in furtherance of substantial justice; and action
of trial court will not be disturbed on appeal, unless there is an abuse of discretion. * * *
In Abby v. State, 72 Okla.Cr. 208, 114 P.2d 499, 500, 115 P.2d 266, it is held: "In this
day of paved highways, the wide use of rural telephones, daily papers, and radios, the
mere fact that the inhabitants of a county have read and heard of the commission of a
crime does not disqualify them.
69 Nev. 121, 131 (1952) State v. Alsup
In this day of paved highways, the wide use of rural telephones, daily papers, and radios,
the mere fact that the inhabitants of a county have read and heard of the commission of a
crime does not disqualify them. To warrant a change of venue, it must be made to appear that
they have a fixed opinion as to the guilt or innocence of an accused to the extent that he
cannot have a fair trial by an impartial jury. * * *
[Headnote 4]
In the face of the record we find no warrant for holding that the court erred in denying the
motion for a change of venue. The court probably arrived at the conclusion that the
manifestations of excitement and resentment in Las Vegas and the immediate vicinity,
represented the usual result upon the public mind in cases of this character and that whatever
feeling the public had at that particular time had subsided before the trial was begun.
The next assignments of error have reference to remarks made by the district attorney and
the deputy district attorney during the trial of the case, and also to the remarks made by them
in their argument of the case to the jury.
The objectionable portions of the remarks pointed out in the brief are as follows: That
prejudicial error was committed when the district attorney, immediately following the
testimony of a witness in the case, as he was leaving the stand said, Who are the police
working for in this case, the defense or the prosecution? After a discussion was had by the
court and counsel regarding the above remark the district attorney stated as follows: May I
ask that the remarks in the record be stricken and the jury admonished not to consider them?
The court: I doubt if the jury heard them; but you can have an instruction to that effect at the
proper time.
[Headnote 5]
At the time the above remark was made the district attorney was speaking to his associate,
the deputy district attorney, and not to the witness. No objection was made by the appellant
to the remarks.
69 Nev. 121, 132 (1952) State v. Alsup
was made by the appellant to the remarks. The appellant did not ask the court to admonish the
jury. The only request that the jury be instructed to disregard the remarks came from the
respondent, which the court refused because it believed the jury did not hear the remarks. A
full reading of the testimony and the subsequent actions and words of the court and counsel
for both appellant and respondent indicate that the remarks were not heard by the jury.
In the case of Hewitt v. State, 27 Ga.App. 676, 109 S.E. 679, the court stated at page 680
as follows:
Even if the error alleged in either of these grounds would be sufficient to require the grant
of a new trial in the event the conversation was heard by the jury, before it could avail the
movant it must affirmatively appear with reasonable certainty that the conversation was loud
enough to be heard by members of the jury, and in this case it does not so appear from any
legal evidence adduced.
[Headnote 6]
The next objectionable remark pointed out in the briefs was that the deputy district
attorney referred to the appellant as a little giant. At the time the remark was made by the
deputy district attorney, counsel for the appellant objected to the statement and asked that the
jury be admonished to disregard it, stating: There's nothing in the evidence that the
defendant is a little giant, and it is an improper inference to be drawn from the evidence. The
court stated as follows: The jury will take into consideration the evidence and the fact that
those words did not come out in evidence, and will disregard it.
In the case of People v. Tognola, 256 P. 455, 456, 83 Cal.App. 34, the court stated:
The language used by the district attorney in his argument to the jury as follows: I want
to say this in the beginning, we are dealing with a crook who is a good deal more clever than
any I have dealt with for some time'is not reversible error, particularly since the trial judge
promptly charged the jury to disregard the statement."
69 Nev. 121, 133 (1952) State v. Alsup
the trial judge promptly charged the jury to disregard the statement. Citing People v. Bose,
28 Cal.App. 743, 153 P. 965, 8 Cal.Jur. 267.
Appellant's next assignment of error is as follows: That the court erred in refusing to
admonish the jury to disregard statements of counsel for the state in the closing arguments
wherein said counsel for the state referred to the three men who were acting as attorneys for
the defendant on December 2, 1949, at a time when said attorneys were in conference
regarding the defense of the appellant, as an unholy alliance and stated, without any
evidence having been introduced in the record to substantiate the remarks, that said injuries
testified to by Dr. J. C. Cherry, who treated said appellant on December 2, 1949, were
probably or could have been inflicted by said attorneys in order to establish in favor of
appellant a plea of self-defense; and said district attorney further remarked that the reason
said attorneys inflicted said injuries was because they thought there was a dead man at the
union hall, namely, one Ray Folsom, as to all of which the court refused to admonish the
district attorney and allowed him to continue making such prejudicial remarks over the
objection of defendant.
In referring to the statement made by the district attorney we quote a portion of the
statement:
Now, the defense contends that some third party hit Mr. Alsup over the head. I have a
theory and it is my privilege at this time to express my theory of this case. It may not be your
theory, but I want to give it to you for what it is worth. I think it holds water. * * *
[Headnote 7]
It is clear that the district attorney was expressing a theory as to how the appellant may
have received injuries to his head. The trial court properly ruled that it was for the jury to
decide whether or not the theory or theories advanced by the district attorney were reasonable
inferences from the evidence. The district attorney advanced two theories as to how the
defendant may have received his head injuries, both of which theories the trial court held
to be proper inferences.
69 Nev. 121, 134 (1952) State v. Alsup
may have received his head injuries, both of which theories the trial court held to be proper
inferences. In this respect the court stated:
Counsel can draw his own inference. The jury knows that it is counsel's inferences, they
are so instructed. It is his theory of the case, and I think he has a right to present his theory of
the case.
We have carefully considered these assignments, and do not find anything that would
warrant a reversal of this case by reason of these remarks or by reason of this argument. We
deem it unnecessary to quote from the cases, but cite the following: State v. Mircovich, 35
Nev 485, 491, 130 P. 765; Camp v. State, Okl.Cr.App., 239 P.2d 1036, 1039; Williams v.
State, 89 Okl.Cr. 146, 205 P.2d 1164, 1171; Workman v. State, 83 Okl.Cr. 245, 175 P.2d
381, 385; Orrel v. State, 79 Okl.Cr. 300, 154 P.2d 779, 788; Brown v. State, 82 Okl.Cr. 344,
169 P.2d 772, 776; Kennamer v. State, 59 Okl.Cr. 646, 57 P.2d 646, 664; Wallace v. State,
57 Okl.Cr. 50, 45 P.2d 164, 166.
In the case of State v. Petty, 32 Nev. 384, 394, 108 P. 934, 937, this court stated:
Courts have frequently been called upon to reverse cases because of the remark of the
attorneys for the prosecution, who through a misguided zeal appear to have forgotten that
they owe a duty to the defendant as well as the state. This case, however, does not present a
situation of this kind, and we think it clearly falls within that class of cases where the error, if
any, is cured by the action of the court. Citing cases.
Without citing authority to sustain his contention, and not touching upon the points in his
oral argument, counsel for appellant contends that the lower court erred in giving to the jury
instructions Nos. 3, 4 and 5a, and in refusing to give appellant's proposed instructions A, B
and C.
[Headnote 8]
Instructions 3, 4 and 5a have to do with the crime of assault with intent to kill. In view of
the fact that appellant was found guilty by the trial jury of a lesser included offense, that
of assault with a deadly weapon, we cannot see wherein appellant could be prejudiced by
such instructions.
69 Nev. 121, 135 (1952) State v. Alsup
appellant was found guilty by the trial jury of a lesser included offense, that of assault with a
deadly weapon, we cannot see wherein appellant could be prejudiced by such instructions.
In the case of State v. Jackman, 31 Nev. 511, 522, 104 P. 13, 17, the court stated:
Had the defendant in this case been convicted of murder in the first degree, we would
have gone into a more extended consideration of the point made, and its possible effect upon
the minds of the jury. In the Maughs case the defendant was convicted of murder in the first
degree; and defendant in this case, of murder in the second degree. For the crime for which
the defendant was convicted, the instruction, in any event, could not have been prejudicial.
[Headnote 9]
We disagree with appellant that the trial court erred in refusing to give defendant's
proposed instructions A, B and C. The subject matter of the instructions is in part covered by
instruction No. 12, the statutory definition of reasonable doubt. It was pointed out by the
trial court that this instruction is not the law in this type of case, since it contemplates only
two theories of shooting, one an accidental and the other intentional, and omits to take into
account the possibility of a negligent shooting. The court did not err in refusing to give
instruction A.
[Headnote 10]
Defendant's proposed instruction B was properly refused because the evidence in the case
was not entirely circumstantial. Defendant's proposed instruction C was properly rejected for
the same reason, and in addition instruction 13b clearly defined for the jury the two classes of
evidence, direct and circumstantial, so that the jury was fully informed and could not in any
way have been misled by the failure of the court to give defendant's proposed instruction C.
This court finds no error in the trial court's refusal to instruct the jury as proposed by
defendant's instructions A, B and C.
69 Nev. 121, 136 (1952) State v. Alsup
[Headnote 11]
Instructions to be applicable must have some basis in evidence. State v. Moore, 48 Nev.
405, 233 P. 523.
[Headnote 12]
The appellant was charged with the crime of assault with intent to kill. Finally appellant
contends in general that the verdict is contrary to the law and the evidence. It is unnecessary
to make a further detailed statement of the evidence. From what has been said, it will be
noted that there was a direct conflict in the testimony. The case was tried before a jury, and
they had the opportunity to see and hear the witnesses. The evidence was conflicting, and as
stated in the case of Pooler v. State, 70 Okl.Cr. 199, 104 P.2d 733, 734, 105 P.2d 553, citing
Sanders v. State, 46 Okl.Cr. 293, 287 P. 846:
Where the evidence is conflicting, the weight of the evidence and the credibility of the
witnesses is for the jury. This court will not substitute its judgment for that of the jury and the
trial judge when there is evidence tending to support the conclusions arrived at by the jury.
Citing cases.
The order of the trial court denying the motion for a new trial and the judgment of the said
court in the case are affirmed.
April 16, 1952.
Per curiam:
Rehearing denied.
____________
69 Nev. 137, 137 (1952) Nicora v. Demosthenes
ALBERT NICORA, ANNA NICORA and MARY BERTOLINO, Appellants v. PETER
DEMOSTHENES, Administrator of the Estate of John Scabolus, Deceased, Respondent.
No. 3670
April 14, 1952. 243 P.2d 253.
Appeal from judgment of the Second Judicial District Court, Washoe County; Harold O.
Taber, Judge, department No. 3.
Albert Nicora, and others, surviving children and widow of plaintiff dying before trial of
his personal injury action against John Scabolus were substituted as plaintiffs and sought
damages for wrongful death. From a judgment on verdict for defendant and an order denying
new trial, substituted plaintiffs appealed. The defendant died, and Peter Demosthenes,
administrator of his estate, was substituted, and he moved to dismiss the appeal. The Supreme
Court, Badt, C. J., held that the entire matter became moot with the death of the wrongdoer.
Appeal dismissed.
Ernest S. Brown, of Reno, for Appellants.
Bert M. Goldwater and David Goldwater, of Reno, for Respondent.
1. Abatement and Revival.
In cases where the cause of action does not survive the death of a party pending an appeal from a
judgment for defendant abates the action, in absence of any statute to the contrary.
2. Appeal and Error; Death.
Where alleged wrongdoer died after verdict in his favor but before a decision on appeal, the action by
widow and surviving children for wrongful death did not survive the death of the alleged wrongdoer, and
the entire matter became moot with the death of the wrongdoer and appeal from judgment on such verdict
would be dismissed. N.C.L.1929, secs. 8554, 8561, 9194; N.C.L.1931-1941 Supp., sec. 240.01.
OPINION
This case is before us on motion of the respondent Peter Demosthenes, as administrator of
the estate of John Scabolus, deceased, heretofore substituted for the decedent, to dismiss the
appeal of Albert Nicora, Anna Nicora and Mary Bertolino, appellants.
The main question presented for determination is: Does an action for wrongful death
survive the death of the alleged wrongdoer where the wrongdoer dies after verdict in his favor
but before a decision on appeal?
In April, 1950, Alexander Nicora was injured while riding in a truck owned by John
Scabolus. Nicora commenced an action for personal injuries against Scabolus, but died as a
result of his injuries before trial, and his widow and two surviving children, the present
appellants substituted as plaintiffs, proceeded against Scabolus for damages for the wrongful
death of Nicora. A verdict was returned in favor of Scabolus, judgment was rendered thereon
and a motion for new trial denied. Plaintiffs perfected an appeal, but after all briefs on appeal
had been filed and the appeal set for oral argument, Scabolus died. His administrator,
substituted pursuant to stipulation, then moved to dismiss the appeal on the ground that the
death of Scabolus had abated the action and rendered the appeal moot.
In support of the motion to dismiss the appeal, respondent relies upon Estes v. Riggins, 68
Nev. 336, 232 P.2d 843, decided by this court June 15, 1951. Construing secs. 8554 and
9194, N.C.L.1929, and sec. 240.01 N.C.L.1931-1941 Supp., we definitely held that in this
state a cause of action by the widow and children for the wrongful death of the husband and
father did not survive the death of the wrongdoer. These sections are referred to at length in
Estes v. Riggins, supra, and need not be set forth here. Appellants do not question the
propriety of our holding in that case, but rely upon the provisions of sec.
the provisions of sec. 8561, N.C.L.1929, reading as follows:
An action shall not abate by the death or other disability, of a party, or by the transfer of
any interest therein, if the cause of action survive or continue. In case of the death or
disability of a party, the court, on motion, may allow the action to be continued by or against
his representative or successor in interest. In case of any other transfer of interest, the action
may be continued in the name of the original party, or the court may allow the person to
whom the transfer is made to be substituted in the action. After verdict shall have been
rendered in any action for a wrong, such action shall not abate by the death of any party, but
the case shall proceed thereafter in the same manner as in cases where the cause of action
now survives by law.
It is clear that the foregoing section does not provide for the survival of a cause of action
but simply for the non-abatement of actions. Notwithstanding the final sentence of the section
quoted, it is still necessary that a cause of action be shown upon which the action may rest.
Appellants insist that the survival or continuance of the cause of action mentioned in the
first sentence of the section serves in no way to limit the express provisions of the last
sentence. They point out that the last sentence of the section providing that the action shall
not abate by the death of any party after verdict, includes by its terms any action for a
wrong, thus specifically including an action for wrongful death. They say that this sentence
further recognizes the lack of limitation by providing that in such situation the case shall
proceed thereafter in the same manner as in cases where the cause of action now survives by
law. They insist that there is a logical consistency in the statutory provision that in the event
of the death of a party (1) the action shall not abate but the case shall proceed, and (2) the
fact that the cause of action does
not survive or continue; and that this is so because the cause of action is now merged in
the verdict; that such verdict has become a property right of appellants; that, although
the verdict was adverse to appellants, the right of appellants to have the case "proceed
thereafter" necessarily embraced the right to attack the verdict {and the judgment based
thereon and the order denying new trial) by appeal, since it has in the interim no finality;
that under well-recognized principles of law, the final judgment as ordered by this court
would be entered nunc pro tunc as of a date anterior to the death of the defendant.
not survive or continue; and that this is so because the cause of action is now merged in the
verdict; that such verdict has become a property right of appellants; that, although the verdict
was adverse to appellants, the right of appellants to have the case proceed thereafter
necessarily embraced the right to attack the verdict (and the judgment based thereon and the
order denying new trial) by appeal, since it has in the interim no finality; that under
well-recognized principles of law, the final judgment as ordered by this court would be
entered nunc pro tunc as of a date anterior to the death of the defendant.
None of these contentions can prevail against the two outstanding facts: (1) Appellants no
longer have a cause of action for wrongful death. (2) The verdict in the case was in favor of
defendant.
[Headnote 1]
Appellants concede that in cases where the cause of action does not survive, the death of
a party pending an appeal from a judgment for the defendant abates the action. Indeed the
authorities so conclusively establish this view, in the absence of any statute to the contrary, as
not to permit of dispute. See annotation to Lew v. Lee, 62 A.L.R. 1048, 1053, where
numerous cases are cited in support of the statement that, in cases where the cause of action
does not survive, the death of a party pending an appeal from a judgment for the defendant
abates the action. See also Bank of Iron Gate v. Brady, 184 U.S. 665, 22 S.Ct. 529, 46 L.Ed.
739; Hartleroad v. Seward, 101 Ind.App. 254, 199 N.E. 168; also 1 C.J.S. 175, Abatement
and Revival, sec. 128. Appellants concede this general rule, but refer us to Vitto v. Farley, 6
App.Div. 481, 39 N.Y.S. 683, claiming that this case held contra and that in view of the
similarity of the New York code provisions to our own we should be inclined to follow it. In
that case however, while it is true that the order appealed from favored the defendant, the
verdict itself was in favor of the plaintiff. This verdict had been set aside and a new trial
ordered, from which order an appeal had been taken to the appellate division of the
supreme court {the trial court).
order an appeal had been taken to the appellate division of the supreme court (the trial court).
The appeal under immediate consideration was from the denial of the plaintiff's motion to
substitute the defendant's executors. It was held that the verdict for plaintiff had not been
absolutely annihilated by the order setting it aside, as it was still capable of being restored to
life. In its logical effect Vitto v. Farley simply follows the reasoning of the cases holding that
the action does not abate by the death of the wrongdoer after a verdict in favor of the plaintiff.
Appellants also rely upon In re Pillsbury's Estate, 175 Cal. 454, 166 P. 11, 3 A.L.R. 1396,
reviewing sections of the California code corresponding to sec. 8561 N.C.L. The case is an
interesting one and outlines the situation arising in actions of this kind where a verdict has
been rendered for the plaintiff and the case is ripe for judgment but where the defendant dies
before the entry of such judgment, the delay in such entry not being the fault of the parties or
being caused through inadvertence of the ministerial officers of the court. In such instances it
is generally held that the judgment may be entered nunc pro tunc as of a date anterior to the
defendant's death. Thus there are preserved to the plaintiff the legitimate fruits of the
litigation, and the working of an injustice to the party prevailing in the action is prevented.
Mather v. Mather, Cal., 134 P.2d 795, and particularly Mather v. Mather, 22 Cal.2d 713, 140
P.2d 808, referring to the Pillsbury case. In any event, cases involving the propriety of
entering a nunc pro tunc judgment where the defendant has died after verdict for plaintiff but
before judgment are not in point here. Such situation is not involved. Nor to any greater avail
is appellants' theory that their cause of action merged into the verdict or into the judgment
which thereupon became a property right of appellants. The verdict and judgment went for
the defendant. Bank of Iron Gate v. Brady, supra.
Appellants further concede that if the action of this court upon the appeal on the merits
should be a reversal of the judgment for defendant and a remand for a new trial, the trial
court would have no alternative other than to dismiss the action under authority of Estes
v. Riggins, supra. They insist however, that if we find reversible error in considering the
appeal on the merits, we need not remand the cause for new trial but may direct the entry
of judgment for the plaintiffs.1 In support of this contention appellants cite Nyberg v.
Kirby, 65 Nev. 42
court upon the appeal on the merits should be a reversal of the judgment for defendant and a
remand for a new trial, the trial court would have no alternative other than to dismiss the
action under authority of Estes v. Riggins, supra. They insist however, that if we find
reversible error in considering the appeal on the merits, we need not remand the cause for
new trial but may direct the entry of judgment for the plaintiffs.
1
In support of this
contention appellants cite Nyberg v. Kirby, 65 Nev. 42, 188 P.2d 1006, 193 P.2d 850 in
which it is said that such action was taken. Such however was not the order in Nyberg v.
Kirby. There the lower court had erroneously held that the plaintiff was a guest and could,
under our statutes, recover only upon a showing of gross negligence and that the doctrine of
res ipsa loquitur did not apply. In reversing, we remanded the case for a limited new trial on
the issue of the extent of damage only. The defendant was still living and there was nothing to
prevent the court from proceeding with a new trial of such issue.
[Headnote 2]
This brings us to appellants' last contention, which is that, conceding that respondents are
correct in the propositions of law advanced, the matter must nonetheless be determined upon
the merits and not upon a motion to dismiss the appeal. If we were presented with a situation
in which we should have to examine the record to ascertain the possibility of directing the
entry of a judgment in favor of plaintiffs and against the defendant nunc pro tunc in a fixed
amount and without further trial, then both this ground of opposition to the motion and the
last preceding ground of opposition might have some weight. We should indeed have to
imagine a most unusual kind of situation for this to be the case.
2
Appellants would assuredly
have presented such circumstances if they existednay, it would have been their duty to do
so.
____________________

1
It is significant that appellants' opening brief on the merits asks that the case be remanded for a new trial.

2
In Bank of Iron Gate v. Brady, 184 U.S. 665, 22 S.Ct. 529, 46
been their duty to do so. We are forced to the conclusion that even if we permitted this appeal
to be presented on the merits and even if we reversed the judgment and the order denying new
trial, the case would have to be remanded for a new trial and inevitably face dismissal in the
lower court upon a showing of the death of the defendant. For us to burden this court and the
lower court and the parties and their counsel with the useless expenditure of time and money
thus involved to no purpose appears to us entirely unwarranted. In our opinion the entire
matter became moot with the death of Scabolus and the appeal must be dismissed. It is so
ordered.
____________________
L.Ed. 739 it was thought proper, for particular reasons not appearing here, that the case be remanded to the
lower court with instructions to set aside its judgment and enter one abating the action by reason of the death of
the defendant.
____________
69 Nev. 143, 143 (1952) Brownfield v. F. W. Woolworth Co.
FLOY EMILY BROWNFIELD, Appellant, v. F. W. WOOLWORTH CO., a Corporation
Organized and Existing Under the Laws of the State of New York, Respondent.
F
No. 3699
April 14, 1952. 242 P.2d 810.
Motion to dismiss appeal from judgment of Second Judicial District Court, Washoe
County; Harold O. Taber, Judge, department No. 3.
Floy Emily Brownfield sued F. W. Woolworth Co., for injuries resulting from a fall in
defendant's store allegedly caused by defendant's negligence. From a judgment for plaintiff,
plaintiff appealed on the judgment roll alone asserting that damages awarded were inadequate
in light of judgment and findings of fact made by the court. The Supreme Court, Badt, C. J.,
held that the issues raised would be determined on the appeal, rather than on defendant's
motion to dismiss the appeal.
appeal, rather than on defendant's motion to dismiss the appeal.
Motion denied.
See also, 69 Nev. ___, 248 P.2d 1078, 69 Nev. ___, 251 P.2d 589.
Clyde D. Souter, of Reno, for Appellant.
Woodburn, Forman and Woodburn, and Gordon R. Thompson, all of Reno, for
Respondent.
Appeal and Error.
Where plaintiff appealed from judgment on judgment roll alone on ground that damages awarded were
inadequate in light of judgment and findings of fact made by court, issues raised would be determined on
appeal rather than on motion to dismiss appeal. N.C.L.1931-1941 Supp., sec. 9385.64.
OPINION
Floy Emily Brownfield, appellant, filed her complaint in the court below April 19, 1951,
for damages for personal injuries resulting from a fall in respondent's store caused by
defendant's negligence. Issue was joined, the case was tried to the court without a jury, and
judgment was entered in favor of plaintiff and against defendant for $1,233.20. Of this sum
$233.20 was for special damage by way of doctor's and hospital charges. The court made
findings, to which no objections or exceptions were taken by appellant. The defendant neither
sought a new trial nor appealed. Plaintiff, without seeking a new trial, appealed from the
judgment, upon the judgment roll alone, asserting in her notice of appeal that it was taken on
the ground that the damages awarded to the plaintiff, pursuant to the terms of said judgment,
are inadequate in the light of said judgment and the findings of fact made by said court.
In support of its motion to dismiss the appeal, respondent contends (1) that the error
complained of may not be considered on an appeal from the judgment but only on appeal
from an order denying new trial, and that the appeal has accordingly not been perfected,
and {2) that no error affirmatively appears on the face of the judgment roll.
but only on appeal from an order denying new trial, and that the appeal has accordingly not
been perfected, and (2) that no error affirmatively appears on the face of the judgment roll. In
support of the first ground respondent refers to our statutes on new trial and appeal and cites a
number of cases from this court and from the Supreme Court of California dealing primarily
with the necessity of a motion for new trial before this court may consider the sufficiency of
the evidence to justify the verdict of the jury or the decision of the court. In support of the
second ground respondent suggests that an examination of the findings and the judgment will
disclose no error appearing on the face of the judgment roll and that for such reason the
appeal must be dismissed.
As to the law expressed in the first ground, appellant points out that she does not attack the
findings or the sufficiency or insufficiency of the evidence. She insists however that the
findings themselves indicate that the court in entering judgment failed to give legal force or
effect to such findings, thus laying before us the issue raised in the second ground of
respondent's motion. She bases her position upon the provisions of sec. 9385.64,
N.C.L.1931-1941 Supp., reading in part as follows: When a party desires to appeal on the
ground that the * * * judgment * * * is contrary to the findings, the appeal may be taken upon
a copy of the judgment roll which includes the findings, * * * if the appeal is from a
judgment; * * *
It is manifest that the opposing contentions of the parties upon the motion to dismiss the
appeal present a question more properly to be considered on the appeal than on such motion.
This is clear from the very assertions contained in respondent's motion, namely, that the
findings do support the judgment, and that the judgment roll does not disclose any error.
Respondent will still have opportunity on the appeal from the judgment to assert these, as
well as other points, in support of its contention that the judgment should be affirmed.
contention that the judgment should be affirmed. Monitor Pipe & Steel Co. v. Flanigan
Warehouse Co., 63 Nev. 449, 172 P.2d 846; In re Devincenzi's Estate, 64 Nev. 455, 183 P.2d
831.
The motion to dismiss the appeal is denied. Appellant has filed her opening brief on the
merits. Respondent may have 15 days from receipt of a copy of this opinion within which to
file its answering brief.
____________
69 Nev. 146, 146 (1952) State v. Kassabian
THE STATE OF NEVADA, Plaintiff, Respondent, v.
LEVON G. KASSABIAN, Defendant, Appellant.
No. 3649
April 28, 1952. 243 P.2d 264.
Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
department No. 2.
Defendant was convicted in the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge, department No. 2, of the crime of attempt to produce a miscarriage, and he
appealed from the judgment and from the order of the court denying a new trial. The Supreme
Court, Merrill, J., held that the comments of the prosecuting attorney to the jury constituted
misconduct, highly prejudicial in character.
Reverse and remanded for new trial.
W. T. Mathews, Attorney General; John C. Mowbray, Deputy District Attorney, Clark
County; and Robert E. Jones, of counsel on brief, for Respondent.
Ralli, Rudiak and Horsey, of Las Vegas, for Appellant.
1. Abortion.
In prosecution for crime of attempt to produce a miscarriage, whether circumstantial corroborative
evidence was as consistent with innocence as with guilt of defendant was for the jury to consider.
2. Criminal Law.
Prosecuting attorneys have a duty to perform equally as sacred to accused as to state they are employed to
represent, and that is to see that accused has the fair and impartial trial guaranteed every person by
Constitution, no matter how lowly he may be, or degrading the character of offense charged.
3. Criminal Law.
Attorney may not introduce into his argument to the jury statements unsupported by evidence produced
on trial and made not as expressions of belief or opinion, but as assertions of fact.
4. Criminal Law.
In prosecution for crime of attempt to produce a miscarriage, where doctor stated that he did not employ
a nurse and that it was not the usual custom among doctors to have someone present while they examined a
woman, and where no attempt was made to dispute his testimony upon either point, prosecuting attorney's
statement to jury, that ordinarily doctors have a nurse present to witness examination of a woman,
presented as an assertion of fact and not as expression of belief or opinion, was improper.
5. Criminal Law.
Whether doctors ordinarily have a nurse present to witness an examination of a woman is not a matter of
common knowledge.
6. Criminal Law.
In prosecution for crime of attempt to produce a miscarriage, where doctor stated that he did not employ
a nurse because his practice was not large enough, and that it was not the usual custom among doctors to
have someone present while they examine a woman, prosecuting attorney's statements to jury, in effect that
ordinarily doctors have a nurse present and that the failure of the doctor to follow the customary medical
practice implied that his unwitnessed actions were improper and that the mere fact that doctor did not have
a nurse in the room, corroborated the fact that he didn't want anyone to know anything about what he was
doing, were misconduct, highly prejudicial in character.
OPINION
On November 22, 1950, defendant Kassabian, following jury trial, was adjudged guilty of
the crime of attempt to produce a miscarriage, commonly known as the crime of abortion.
From that judgment and from order of the trial court denying new trial he has appealed. The
matter with which we are here concerned is an assignment of misconduct on the part of
counsel.
matter with which we are here concerned is an assignment of misconduct on the part of
counsel.
The woman upon whom the offense was alleged to have been committed (whom we shall
call Patricia) was at the time of the alleged offense 16 years of age. Defendant was a duly
licensed physician and surgeon, whose specialty was the treatment of venereal disease. He
admitted treating her. He asserted, however, that his examination of Patricia disclosed that
she was not pregnant but was suffering from venereal disease and from retroflexion of the
uterus and that it was for those matters that he treated her.
Defendant's principal contention upon this appeal is that there was not, as a matter of law,
sufficient corroboration of Patricia's testimony under the requirement of sec. 10975,
N.C.L.1929, that the defendant shall not be convicted upon the testimony of the woman
upon * * * whom the offense shall have been committed unless she is corroborated by other
evidence.
[Headnote 1]
In this regard defendant contends that such corroboration as was presented, when taken by
itself and without recourse to Patricia's testimony, is as consistent with defendant's story as
with Patricia's. It must be conceded that the corroborative evidence is circumstantial and may,
if one accepts the defendant's theory of the case, be considered as consistent with his story.
Whether it was as consistent with innocence as with guilt was for the jury to consider. Their
task in reaching the truth as to the actions of the defendant in the privacy of his office was
not, therefore, an easy one and demanded a dispassionate, careful and analytical examination
and weighing of all of the evidence. Further adding to its problems, this was a case in which
the jury might most naturally succumb to influences of sympathy, passion or prejudice.
[Headnote 2]
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.
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.
Unfortunately it is likewise true that it is in just such cases that a prosecuting attorney with a
sincere conviction of the guilt of the defendant may most easily and understandably commit
misconduct. However, as stated in State v. Rodriguez, 31 Nev. 342, 347; 102 P. 863, 865:
[Prosecuting attorneys] have a duty to perform equally as sacred to the accused as to the
state they are employed to represent, and that is to see that the accused has the fair and
impartial trial guaranteed every person by our Constitution, no matter how lowly he may be,
or degrading the character of the offense charged * * *.
The closing argument to the jury by the prosecuting attorney, with which we are here
concerned, may without exaggeration be characterized as inflammatory. All of the natural
appeals to sympathy which the case presented were constantly emphasized.
[Headnote 3]
These facts are stated merely to provide background for the actions assigned as
misconduct, against which background the extent of prejudice resulting from such actions
may more clearly appear.
In 53 Am.Jur. 386, (Trial, sec. 480), it is stated:
There is no rule of trial practice more universally accepted and applied than the rule that
counsel may not introduce into his argument to the jury statements unsupported by evidence
produced on the trial and made not as expressions of belief or opinion, but as assertions of
fact. Judicial censure of misstatements of the evidence by counsel in arguing their case or
statements of facts not in evidence or not warranted as a deduction from the evidence has
been equally emphatic in both civil and criminal cases.
In the course of cross-examination of the defendant by the prosecuting attorney we find the
following: "Q.
Q. Now, doctor, when you conducted the examination of this girl, was anyone present in
your office? A. No, just myself.
Q. Just yourself and the girl, is that right? A. Yes.
Q. Isn't it the practice among doctors to always have someone present at the time when
they examine a woman? A. Not necessarily, no.
Q. Isn't it the usual custom? A. No. I don't have a big enough practice to have a nurse at
the office, but it is not the usual custom.
The defendant thus testified: First, that he did not employ a nurse; Second, that it was not
the usual custom among doctors to have someone present while they examined a woman. No
attempt was made to dispute this testimony upon either point and it remains uncontradicted in
the record. If, in fact, the usual custom was otherwise it would have been an extremely simple
matter to establish. Two other doctors gave testimony but neither was examined upon this
point.
In the course of his closing argument to the jury the prosecuting attorney made the
following statement:
Ordinarily doctors have a nurse who is present to witness these treatments to women.
Why didn't Doctor Kassabian have a nurse present? He must have been doing something he
didn't want anyone else to know about, or else he would have a nurse present during the
examination to protect him.
Objection was promptly made and argued by counsel for defendant and the record
continues:
BY THE COURT: I think it may stand. Although it is not in evidence what is the
customary practice, the doctor stated that he didn't have enough practice to employ a nurse.
[BY THE PROSECUTING ATTORNEY] I think, ladies and gentlemen, that the doctor
didn't want a nurse around there, because a nurse would see what went on, and a nurse could
come in and testify to what went on, and what that little girl told you
[BY DEFENSE COUNSEL] Object to that, your Honor, I believe that is exceeding the
limit of opinion and conclusion.
Honor, I believe that is exceeding the limit of opinion and conclusion. I don't want to
interrupt
BY THE COURT: I think that the testimony of the doctor was that he didn't have a nurse
because he didn't have a large enough practice. He can draw his own conclusions from that.
You may proceed.
Under the court's ruling relative to these comments we find the prosecuting attorney
encouraged to continue in the same vein. Relative to corroboration, itself one of the closest
and most difficult determinations for the jury, the argument was made,
The mere fact that he didn't have a nurse in the room corroborates the fact that he didn't
want anyone to know anything about what he was doing, because if there had been a nurse
there, she could have testified as to what went on.
Again it was argued:
I think there is quite a bit of corroboration that he has told you right there, and that is the
absence of the nurse and the price, so he, even, has corroborated the girl's story in that
respect.
And again relating to the lack of an eyewitness:
If you think that we must have a nurse present here to testify, when the doctor excluded
the nurse from the room, in an effort to hide his actions, then we could never get a case like
this, because there never, under any circumstances, would be a case proven against any
doctor.
[Headnote 4]
In both State v. Rodriguez, supra, and State v. Cyty, 50 Nev. 256, 256 P. 793, 52 A.L.R.
1015, this court reversed for misconduct of the prosecuting attorney in argument to the jury.
In both cases the misconduct involved statements of fact beyond the scope of the record. In
the instant case the prosecuting attorney introduced into his argument a statement of fact not
only unsupported by the record but flatly contrary to the evidence before the jury: the
statement that ordinarily doctors have a nurse present to witness such treatments.
treatments. This was presented as an assertion of fact and not of belief or opinion and was
clearly improper.
Here, too, the objection to the statement and to inferences drawn therefrom was not
sustained and the jury admonished as in the Rodriguez case. (See also: State v. Petty, 32 Nev.
384, 108 P. 934.) The trial court here upheld the prosecuting attorney in his comments and
conclusions. While correctly stating the record in one respect the judge still demonstrated a
wholly understandable lack of recollection as to the precise state of the record. The jury was
thus inadvertently further assisted if not directed into an erroneous conception of the state of
the evidence before it.
[Headnote 5]
The state attempts to justify the statement of counsel upon the basis that it is supported by
common knowledge and common sense. Even accepting the statement as having some basis
in fact, it can hardly be said to be common knowledge. Any knowledge upon the subject
possessed by any one individual is more likely to be based upon her personal knowledge as to
the practice of a single doctor than upon a general knowledge as to the practice of the medical
profession as a whole. The experience by which such knowledge is gained is not an
experience generally common to all mankind; nor is it an experience which, when had, is
commonly shared. On the contrary, it is an experience private in the extreme. We must,
accordingly, reject the state's contention.
From this statement of a fact which the record denies, the prosecuting attorney then
proceeds to draw the inference that the failure by the defendant to follow the customary
medical practice implies that his unwitnessed actions were improper. Even accepting the
customary medical practice as having been established, such an inference cannot be allowed.
Accept that it is wise and prudent for a doctor to protect himself against unwarranted charges
of improper conduct. Accept that it is common practice to take such protective measures. Can
the failure of a doctor so to protect himself with a witness be made to constitute affirmative
evidence of impropriety?
witness be made to constitute affirmative evidence of impropriety? Are doctors thus to be
presumed guilty of impropriety unless they can, by positive proof of an eyewitness, establish
the contrary? This indeed would violate a most fundamental principle of justice. Should a
doctor employ a nurse and for no apparent reason deliberately exclude her from customary
participation in an examination, the situation might well be a different one. Some inference of
impropriety might well be drawn depending not upon common knowledge or common
medical practice but upon the practice in that office and the particular circumstances of the
case.
In the instant case, regardless of whether the customary medical practice might be as the
state contends, the defendant positively stated that it was not the practice in his office. Thus
the inference of impropriety, even if generally proper, has in this case been dispelled by
undisputed testimony that defendant did not employ a nurse and that his reason was that his
practice was not big enough. Certainly it cannot be said that common knowledge or common
sense will controvert this testimony. On the contrary it appeals to us as common sense that
there may well be struggling medical practitioners unable to afford the services of an office
nurse. Clearly the inference of impropriety on the part of the defendant was not justified
under the state of the record.
Yet, in the prosecuting attorney's final comment with reference to the matter, the inference
superimposed upon the original factual statement is extended still further and emerges as a
clear implication that the defendant did employ a nurse but deliberately excluded her on the
occasions in question. This implication arises from a statement also made as one of fact and
not qualified as opinion or belief: a statement of fact which, if true, might well justify an
inference of impropriety and support the state's contention that it contributed to the required
corroboration.
The prosecuting attorney by one improper step after another has lifted himself by his
bootstraps to a point
where the jury, if it accepted his argument without self-admonition, must have believed
the absence of a nurse to be highly incriminating; to be direct corroboration of Patricia's
testimony upon the crucial fact at issue; to be corroboration, moreover, inconsistent with
any theory of innocence.
where the jury, if it accepted his argument without self-admonition, must have believed the
absence of a nurse to be highly incriminating; to be direct corroboration of Patricia's
testimony upon the crucial fact at issue; to be corroboration, moreover, inconsistent with any
theory of innocence.
[Headnote 6]
We cannot but regard the comments of the prosecuting attorney as misconduct highly
prejudicial in character. It must follow that it was reversible error to permit them to be made.
Reversed and remanded for new trial.
____________
69 Nev. 154, 154 (1952) Roberts v. Hummel
W. LYNN ROBERTS, Appellant, v. FRED C. HUMMEL and PEARL S. HUMMEL, His
Wife, and LESLIE McKERNAN and LAURA F. McKERNAN, His Wife, Respondents.
No. 3689
April 29, 1952. 243 P.2d 248.
Appeal from the Sixth Judicial District Court, Humboldt County; Merwyn H. Brown,
Judge.
W. Lynn Roberts brought an action, against Fred C. Hummel and his wife and Leslie
McKernan and his wife, in which he sought reformation of an option to purchase property
and specific performance of the agreement as so reformed. The Sixth Judicial District Court,
Humboldt County, Merwyn H. Brown, Judge, sustained defendants' demurrer, and plaintiff
appealed. The Supreme Court, Eather, J., held that the statute of frauds was no bar and that
there was sufficient reference to the subject matter of the agreement of the parties to enable it
to be located and identified and to permit evidence of correct quantity and boundaries, for the
purpose of specific performance.
Morley Griswold and George Vargas, of Reno, and James A. Callahan, of Winnemucca,
for Appellant.
Howard E. Browne, of Reno, for Respondents Fred C. Hummel and Pearl S. Hummel.
Donald M. Leighton, of Winnemucca, for Respondents Leslie McKernan and Laura
McKernan.
1. Frauds, Statute of.
The statute of frauds does not prevent reformation of instrument on account of mistake or fraud.
2. Vendor and Purchaser.
Whatever can be made certain, courts will consider to be certain; and therefore, if it is possible to make
description certain by using guideposts given in writing, the court will construe written instrument and
extrinsic evidence to be one instrument so as to effectuate the intention of parties.
3. Evidence; Vendor and Purchaser.
Where parties to contract to convey know particular tract by name which they adopt for it, contract
referring to property by such name adequately describes it; and extrinsic evidence may be invoked to show
that parties so knew and designated property among themselves and therefore intended to convey it by
name.
4. Specific Performance.
Where option contract bore heading Option for Sale of Trout Creek Ranch and also contained words
Together with any other deeded land known to be part of Trout Creek Ranch located approximately 17
miles north of Jungo, and such option contract placed the ranch in Humboldt County, Nevada, there was
sufficient reference to subject matter of agreement of parties to enable it to be located and identified and to
permit evidence of correct quantity and boundaries for purpose of specific performance.
5. Reformation of Instruments.
Fact that alleged true description comprised more than was covered by description contained in land
option contract sought to be reformed was no bar to optionee's right to reformation.
Under modern reformed procedure, reformation and specific performance of contract may be had in one
action.
Fact that agreement is executory is no bar to its reformation.
8. Specific Performance.
General rule is that specific performance of contract relating to personalty alone will not be decreed; but
if realty is also involved and equity court takes jurisdiction, whole matter may be determined in one
proceeding.
Reinstatement of defendants' answer, which was ordered withdrawn to permit filing of demurrer, was
matter for trial court on remand rather than supreme court which reversed judgment sustaining demurrer.
OPINION
Appellant secured a written option to buy from respondents, Fred C. Hummel and Pearl S.
Hummel, his wife, a ranch property in Nevada with personalty thereon. When he attempted to
exercise the option, the Hummels declined to convey and he filed in the court below a
complaint for specific performance. Later he amended the complaint to include Leslie
McKernan and Laura F. McKernan, his wife, as parties defendant because they had alleged
some rights in at least part of the property covered by the option. On demurrer, the court
below declined to decree specific performance, on the ground of indefiniteness in the
description of the property. Thereupon plaintiff filed, with leave of court, an amended
complaint wherein he set forth an alleged true description of the property covered by the oral
agreement of the parties and he averred that a somewhat different description had been
inserted in the option because of mutual mistake, or possibly fraud on the part of the
Hummels, thus resulting in a document which did not reflect the true agreement of the
parties. He prayed that the instrument be reformed and, as so reformed, specifically enforced.
When the lower court, again on demurrer, denied plaintiff the relief he sought, he filed this
appeal.
The second amended complaint avers: That the parties to the option negotiated concerning
the property at the home of the Hummels on the ranch and that plaintiff at that time prepared
the option after a meeting of the minds of the parties concerning subject matter and terms;
that plaintiff requested from the Hummels their deeds so he could insert descriptions in the
option, that the Hummels searched for the deeds but could not find them.
the Hummels searched for the deeds but could not find them. The complaint also avers that
the Hummels offered to plaintiff their tax statements and that the description in the written
and executed option was prepared from those tax statements, in the belief by all persons
present that such description comprised all the property which was the subject of the oral
agreement that had been reached at the end of their negotiations, which property they knew
and referred to as the Trout Creek Ranch. Plaintiff avers that he relied upon those tax
statements. The complaint alleges, in the alternative, that if the Hummels knew that the tax
statements they tendered to plaintiff did not contain a full and correct description of the Trout
Creek Ranch, the Hummels were guilty of fraud. Plaintiff sought reformation on the ground
of mutual mistake, or fraud, so that the description would conform to a new description of the
Trout Creek Ranch which plaintiff discovered later and which he then set forth in the
complaint as the true description.
[Headnote 1]
Respondents contend that the case is under the statute of frauds. In the case of Lane v.
Neifert, 240 Mich. 475, 215 N.W. 302, 303, the court quoted from 34 Cyc. 927, the following
as the rule:
Where courts have full equity jurisdiction, the fact that a contract specified in the
instrument to be reformed is within the statute of frauds is of itself no sufficient reason to
refuse to reform when the parties thereto intended to comply with the requirements, but were
prevented from so doing through fraud, accident, or mistake.
Then the court went on to state:
* * * we can see no reason why a court of equity, empowered to reform a deed or
mortgage, may not, under the proofs here presented, reform and grant specific performance of
this contract. By so doing, we do not decree performance of an oral contract. The contract as
made by the parties is in writing. As reformed it is still a written contract, made so by the
decree of the court."
still a written contract, made so by the decree of the court.
That language has full application to the assertion of mutual mistake which appears in the
complaint in the case at bar. Concerning the alternative allegation of fraud, this court has
already expressed its attitude, in the case of Wainwright v. Dunseath, 45 Nev. 361, 211 P.
1104, 1106, where we said:
Nothing is better settled than that the true construction of the statute of frauds does not
exclude the enforcement of parol agreements respecting the sale of lands in cases of fraud;
for, as it has been emphatically said, that would be to make a statute purposely made to
prevent fraud, the veriest instrument of fraud; and the same rule governs in case of mistake as
of fraud. * * *
We are satisfied that the great weight of authority is in accord with our views, that the
statute of frauds has no application in a case of this kind.
It cannot be questioned at this late day that a court with equity powers (the district courts
of this state have such powers) may reform a written instrument where it appears that there
has been fraud, accident or mistake which has brought about a writing not truly representing
the actual agreement of the parties. 45Am. Jur. 604; 53 C.J.S., Limitations of Actions, sec.
22, 958. This court has recognized the rule in Ray v. Robertson, 55 Nev. 397, 36 P.2d 76,
where we said:
The substance of the complaint is that the misdescription of the property contained in the
contract was attributable to the mutual mistake of the parties. * * *
* * * If it be clearly shown that * * * such written contract is untrue and misrepresents or
misstates their real agreement and intention as made and understood by both parties, in some
essential particular, then such contract is a mistaken one, and such mistake may be corrected
in a court of equity, in respect to such particular error.
In the Wainwright case, supra, we said: "Irrespective of the statute of frauds, courts of
equity have the power to order the reformation of deeds, contracts and other
instruments, when, through mistake of the parties thereto, or through the fraud of one of
the parties, or unconscionable conduct amounting to fraud, such instrument does not
contain the real terms of the contract between them.
Irrespective of the statute of frauds, courts of equity have the power to order the
reformation of deeds, contracts and other instruments, when, through mistake of the parties
thereto, or through the fraud of one of the parties, or unconscionable conduct amounting to
fraud, such instrument does not contain the real terms of the contract between them. * * *
[Headnotes 2-4]
Respondents argue that the description in the option is not sufficiently certain to permit
specific performance. We are of opinion that the description in the option itself is adequate to
identify what the parties were dealing with and it is such that a court could readily permit
evidence to make the boundaries more definite and certain. A time-honored axiom of law,
still very much enforced, states that whatever can be made certain, courts will consider to be
certain; if it is possible to make a description certain by using the guideposts given in the
writing, the court will construe the written instrument and the extrinsic evidence to be one
instrument so as to effectuate the intention of the parties.
Here the contract bears the heading in the words: Option for the Sale of the Trout Creek
Ranch. It contains also these words: Together with any other deeded land known to be a
part of the Trout Creek Ranch located approximately 17 miles north of Jungo. It places the
ranch in Humboldt County, Nevada. In our opinion, that is a sufficient reference to the
subject matter of the agreement of the parties to enable it to be located and identified, and
which will permit evidence of correct quantity and boundaries for the purpose of specific
performance. We adhere to the rule stated in Merchant v. Marshfield Co., 95 Or. 439, 188 P.
174, 176:
It is well settled by the authorities that if the parties who were conveying had known a
particular tract by a name which they had adopted for that tract, a deed to the property by that
name is a good description, and extraneous evidence may be invoked to show the fact that
they had so known and designated the property among themselves, and therefore that
they intended to convey the property in question by that name.
that they had so known and designated the property among themselves, and therefore that
they intended to convey the property in question by that name.
In Wharton on Evidence, Vol. 2, sec. 943, it is said:
So, again, to take a familiar illustration, if an estate be conveyed by the designation of
Blackacre, parol evidence is receivable to show what property is known by that name.'
In Baucum v. George, 65 Ala. 259, 267, the only description of the premises found in the
deed was the Douglas gold mine,' and it was proposed by parol evidence to identify the lands
in controversy as known by that designation. The court admitted the evidence. * * * See
also: Meir-Nandorf v. Milner, 34 Idaho 396, 201 P. 720; Thompson on Real Property, secs.
3290, 3294; Burns v. Witter, 56 Or. 368, 108 P. 129; Koch v. Streuter, 218 Ill. 546, 75 N.E.
1049, 2 L.R.A., N.S. 210.
In the Kock case, supra, the reference was:
A certain fruit farm, known as the Ideal Fruit Farm' [owned by the appellee] and
containing about 199 1/2 acres, situated about one and a quarter miles northwest of West
Salem, Edwards County, Illinois.
The court held that from the words used the description of the land could be made certain.
Hollis v. Burgess, 37 Kan. 487, 15 P. 536, was a case where the contract consisted of a
number of letters. The specific description of the property running through all these letters
was given as the Snow Farm.' The court held that where the land sold was so described, and
it appeared that it was commonly designated and known throughout the neighborhood where
situated by such a name, extrinsic evidence was admissible to apply the description' to the
land intended to be sold. It should not be overlooked, however, that all the letters in that case
disclosed that the land was situated in Clay county, Kan., and that all the letters written by the
owner of the land were written from Clay Center, Clay County, Kan. The county and state in
which the property was situated was therefore designated and established by the several
communications constituting the contract.
situated was therefore designated and established by the several communications constituting
the contract. Oral evidence was therefore unnecessary to complete the description, but was
rather necessary for the purpose of identifying and applying the description to the tract of land
described by the writing. Allen v. Kitchen, 16 Idaho 133, 100 P. 1052, 1053, L.R.A.1917A,
563.
See also Dougherty v. Chesnutt, 86 Tenn. 1, 5 S.W. 444, where the supreme court of
Tennessee held a lease valid where the property let was described as follows: All right to
quarry marble on the farm of Henderson Fudge, known as Rose Hill.'
[Headnotes 5, 6]
It seems that the alleged true description comprises more than is covered by the description
contained in the option and which had been obtained from the tax statements, but we hold
that such fact is not a bar to appellant's right to reformation. Wainwright v. Dunseath, supra.
Respondents claim that a court should not reform an instrument and then order its specific
performance. As an answer to that contention, we adopt the expression of the supreme court
of Oregon in Chapman v. Milliken, 136 Wash. 74, 239 P. 4, 7:
Under the modern reformed procedure it would be somewhat absurd to require the
parties, first, to proceed in an action to have the contract reformed, to express the real
intention of the parties, and then, in another action, sue to specifically enforce the same.
There is no reason why it may not all be done in one action.
The case of DeRemer v. Anderson, 41 Nev. 287, 169 P. 737, 741, 25 A.L.R. 775, is cited
as an authority which controls the case at bar favorably to respondents, but we are unable to
view it that way. It is true that Chief Justice McCarran said in the opinion:
Not for the purpose of furnishing or supplying a description is parol evidence admissible,
but only to identify that which the agreement describes.
In that case a lessee had an option to buy a designated portion of leased premises and he
attempted to exercise the option for only a part thereof.
exercise the option for only a part thereof. The opinion of the court clearly shows that there
was no identification in the lease for the small part so chosen by lessee and the court could
not reform a description that did not exist. In the light of that fact, the quoted portion of the
opinion is not in conflict with our present views. Any other decision than the one reached in
that case would have resulted in making a description, not correcting or reforming one which
the parties had made. In that case we said:
* * * where there is a description of some sort, which * * * may be made intelligibly
definite by evidence aliunde, parol evidence may be introduced to identify the land or
premises in the contemplation of the makers of the instrument, * * *
The opinion suggests that if the lessee had elected to take all the tract under option a
different question would be involved, and we think such a different question is present in the
case now before us.
The case of Lane v. Neifert, 240 Mich. 475, 215 N.W. 302, is quite similar to the present
one. Neifert agreed to sell a farm to Livernois and the latter assigned to plaintiff. An abstract
furnished later disclosed that the description in the contract was incorrect. In affirming a
decree directing reformation and specific performance, the court said:
* * * The proof is clear that defendants intended to include in the contract the lands
described in the abstract, which constituted a large farm on which they lived, the boundaries
of which had been pointed out to plaintiff. The errors in the description occurred by
defendant's reading them to Livernois, who prepared the first memorandum, from his tax
receipts, and the descriptions in plaintiff's contract were taken from it. * * * the mistakes
were therefore not in the identity of the property, but in the description of the parcels of
which it was composed.
[Headnote 7]
Respondents suggest that executory contracts are not subject to reformation.
subject to reformation. In Ray v. Robertson, supra, we approved the reformation of an
executory agreement and we see no reason for any distinction between executed and
executory contracts.
[Headnote 8]
The contract involved here refers to land and personal property. Although the general rule
is that specific performance of personalty alone will not be decreed, yet if realty is involved
and the equity court takes jurisdiction, the whole matter may be determined in one
proceeding. In Taylor v. Highland Park Corporation, 210 S.C. 254, 42 S.E.2d 335, 337, the
court said:
A contract for sale of land may be reformed and ordered specifically performed in one
action in equity. * * *
Where part of an entire contract relates to ordinary personal property and the rest to a
subject matter, such as land, over which equity jurisdiction is commonly exercised, specific
performance may be had of the whole contract including the part that relates to personal
property.
[Headnote 9]
After the second amended complaint had been filed by appellant, the Hummels filed an
answer which was ordered withdrawn to permit the filing of the demurrer. Appellant asks that
we order the reinstatement of that answer. This, we feel, is a matter which properly should be
left to the trial court.
The judgment of the lower court is reversed and the case is remanded with instructions to
overrule the demurrers and for further proceedings not inconsistent with this opinion.
Appellant is allowed his costs.
____________
69 Nev. 164, 164 (1952) Lind v. Raynor
CARL T. LIND and LOUISE LEETZOW LIND, His Wife, and PEARDALE MILL
& LUMBER CO., INC., a Corporation, Appellants, v. HARRY RAYNOR and
JOE T. MERHAR, Respondents.
No. 3708
May 5, 1952. 243 P.2d 783.
Appeal from judgment of the Second Judicial District Court, A. J. Maestretti, Judge,
department No. 2. On motion to dismiss appeal.
Harry Raynor and another brought action against Carl T. Lind and others. From a
judgment for plaintiffs, defendants appealed. The Supreme Court, per curiam, held that
appeal was not timely.
Appeal dismissed.
Douglas A. Busey, Clark J. Guild, Jr., and Howard L. Cunningham, all of Reno, for
Appellants.
Royal A. Stewart and Richard W. Horton, both of Reno, for Respondents.
Time for appeals from judgment commences to run from time of pronouncement of court of its
determination in the matter, which constitutes a rendition of judgment, and not from date of filing of
formal findings of facts, conclusions of law, and judgment. N.C.L.1931-1941 Supp., sec. 9385.60.
Where trial court, after discussing issues as made by pleadings, evidence adduced, and certain
conclusions concluded that the plaintiffs were entitled to judgment against defendants in certain sum, there
was rendition of judgment and appeal was required to be taken within six months from that time rather
than within six months from filing of formal judgment. N.C.L.1931-1941 Supp., sec. 9385.60.
Statutory amendment adding to definition of a judgment as the final determination of the rights of the
parties in action or proceeding, provision that in case of conflict or discrepancy between oral
pronouncement of court and minute order entered by clerk on the one hand and written judgment on the
other, written judgment shall control, did not change rule that time for appeal from judgment
commences to run from pronouncement by court of its determination of the matter,
which constitutes a rendition of the judgment, and not from date of filing of formal
findings of facts, conclusions of law, and judgment.
69 Nev. 164, 165 (1952) Lind v. Raynor
for appeal from judgment commences to run from pronouncement by court of its determination of the
matter, which constitutes a rendition of the judgment, and not from date of filing of formal findings of
facts, conclusions of law, and judgment. N.C.L.1929, sec. 8794, as amended, St.1951, p. 212.
OPINION
Per Curiam:
This is a motion on behalf of respondents to dismiss the appeal of appellants from an
adverse judgment, based upon the asserted late filing of the notice of appeal. The case was
tried to the district court without a jury, and after the submission thereof, the district judge on
August 10, 1951 filed a Decision and Opinion. The learned district judge, after discussing
the issues as made by the pleadings, the evidence adduced, and certain conclusions reached
with regard to the facts and the law involved, including a determination as to the various
items upon which the plaintiffs were entitled to recover, less credits against the same,
concluded as follows:
The Court therefore concludes that plaintiffs above named are entitled to judgment
against the defendants in the sum of $10,215.00.
Counsel for the plaintiffs are hereby directed to prepare findings and facts and
conclusions of law in conformity with this Opinion.
The findings and formal judgment were filed September 20, 1951. The notice of appeal
was filed March 5, 1952, more than six months after the filing of the Decision and Opinion,
but less than six months after the filing of the formal judgment.
[Headnotes 1, 2]
The statutory limit for an appeal from a final judgment is six months. N.C.L.1931-1941
Supp., sec. 9385.60. Appellants concede the well established rule in this state that time for
appeal from the judgment commences to run from the pronouncement by the court of its
determination of the matter, which constitutes a rendition of the judgment, and not from the
date of the filing of the formal findings of fact, conclusions of law and judgment.
69 Nev. 164, 166 (1952) Lind v. Raynor
rendition of the judgment, and not from the date of the filing of the formal findings of fact,
conclusions of law and judgment. Nelson v. Paul, 68 Nev. 365, 233 P.2d 857; Magee v.
Whitacre, 60 Nev. 202, 96 P.2d 201, 106 P.2d 751 [appearing in 96 P.2d 201 under its
original title of Magee v. Lothrop]. They contend however that the language of the trial
court's decision quoted above left the matter in the bosom of the court, subject to change or
modification, and was not its final pronouncement. We think it clear however that the
contrary is true.
Appellants rely upon Warren v. Wilson, 47 Nev. 259, 220 P. 242, but we do not find the
same to be in point.
[Headnote 3]
Appellants contend that whatever the rule may have been in the past, the matter is now
controlled by the amendment of 1951 (Stats.1951, 212) amending sec. 8794, N.C.L.1929. The
amendment referred to simply added to the definition of a judgment as the final
determination of the rights of the parties in the action or proceeding, the provision that in
case of conflict or discrepancy between the oral pronouncement of the court or the minute
order entered by the clerk on the one hand and the written judgment on the other, the written
judgment shall control. In our opinion the 1951 amendment has no application to the present
situation. It is clear to us that the appeal was too late and must be dismissed. Having reached
this conclusion, it becomes unnecessary for us to determine respondents' alternative motion to
strike certain papers from the record.
The appeal is hereby dismissed.
____________
69 Nev. 167, 167 (1952) Bryant v. Gibbs
HERMAN BRYANT, Jr., Appellant, v. BERT GIBBS,
Respondent.
No. 3694
May 6, 1952. 243 P.2d 1050.
department No. 1.
Bert Gibbs sued Herman Bryant, Jr., for wages due upon termination of employment,
together with penalties and counsel fees as allowed by statute. Upon failure of defendant to
appear in the action, plaintiff had judgment entered against him. Subsequently, defendant
filed motion to set aside judgment on ground of inadvertence and excusable neglect. The
Eighth Judicial District Court, Clark County, Frank A. McNamee, Judge, denied the motion
and defendant appealed. The Supreme Court, Eather, J., held that while affidavit
accompanying motion showed inadvertence and neglect it did not show the excuse necessary
to the granting of the motion.
Affirmed.
Jones, Wiener & Jones, of Las Vegas, for Appellant.
George E. Marshall, of Las Vegas, for Respondent.
1. Judgment.
Motion to set aside default judgment on ground of defendant's inadvertence and excusable neglect was
addressed to the sound legal discretion of the trial court. N.C.L.1931-1941 Supp., sec. 8640.
2. Judgment.
Motions to set aside default judgments on ground of inadvertence and excusable neglect are treated with
liberality in the interests of securing a consideration upon the merits, but a showing must be made that the
inadvertence or neglect was excusable. N.C.L.1931-1941 Supp., sec. 8640.
3. Judgment.
Where affidavit which accompanied motion to set aside default judgment on ground of inadvertence and
excusable neglect showed that summons and complaint had been inadvertently mislaid in defendant's home
and did not come to his attention until after judgment had been entered when they were located by
member of defendant's household, affidavit showed inadvertence and neglect but not
excuse necessary to justify granting of motion. N.C.L.1931-1941 Supp., sec.
were located by member of defendant's household, affidavit showed inadvertence and neglect but not
excuse necessary to justify granting of motion. N.C.L.1931-1941 Supp., sec. 8640.
4. Judgment.
On motion to set aside default judgment on ground that it was taken because of defendant's inadvertence
and excusable neglect, fact that judgment taken consisted in greater part of penalties and counsel fees was
of no consequence in absence of showing of excuse. N.C.L.1931-1941 Supp., sec. 8640.
OPINION
This is an action by respondent Bert Gibbs, against appellant Herman Bryant, Jr., for
recovery of wages due upon termination of employment, together with penalties and counsel
fees as allowed by statute.
The record in the case reveals that on October 2, 1951, the action was commenced and that
on October 17, 1951, the summons in the action was served upon the defendant. On October
29, 1951, being the twelfth day after service of summons, default was entered against the
defendant for his failure to appear in the action. On the day following the entry of the default
the plaintiff was sworn and testified, and judgment was entered against the defendant.
On November 29, 1951, the defendant filed his motion in the lower court, asking for an
order setting aside the default and the default judgment entered against him, upon the ground
that his failure to appear was due to inadvertence and excusable neglect, and upon the further
ground that he had a good and meritorious defense to the action. The motion was
accompanied by an affidavit by the defendant setting out his reason for not appearing in said
action prior to the entering of the default judgment by the court, as follows: That said
summons and complaint were inadvertently mislaid in affiant's home, and because of such
inadvertence did not come to the attention of affiant until on or about the 3rd day of
November, 1951, when they were located and brought to affiant's notice by a member of
his household."
day of November, 1951, when they were located and brought to affiant's notice by a member
of his household.
The motion came on for hearing on December 12, 1951, at which time the defendant
introduced in evidence the affidavit and proposed answer attached to his moving papers. The
motion was denied and this appeal thereupon was taken.
The appeal is taken upon a single assignment of errorthat the court erred in refusing to
grant defendant's motion for an order setting aside the default judgment.
[Headnote 1]
The motion to set aside the default in the lower court was made pursuant to section 8640,
N.C.L.1931-1941 Supp., reading in part as follows:
The court may, in furtherance of justice, and on such terms as may be proper, enter an
order or orders as follows: * * * (e) Relieving, upon motion supported by affidavit showing
good cause therefor and after notice to the adverse party, a party or his legal representatives
from a default, a judgment, an order, or other proceeding taken against him through his
mistake, inadvertence, surprise or excusable neglect.
The application was addressed to the sound legal discretion of the court.
As repeatedly stated by this court, it is difficult to lay down any general rule for
determining when a default should be opened. Each case must depend upon its own facts, and
the lower court is necessarily vested with a wide discretion in passing upon these facts.
Baumann v. Nevada Colony Corp., 44 Nev. 10, 18, 189 P. 245, 247.
Upon the affidavit before us, we cannot undertake to say that this discretion has been
improperly exercised.
The law applicable to such motions has been clearly and succinctly stated in the case of
Garner v. Erlanger, 86 Cal. 60, 63, 24 P. 805, 806:
An order denying or granting a motion to set aside a judgment by default, on the ground
of mistake, inadvertence, surprise, or excusable neglect of the defaulting party, rests in
the sound discretion of the court, and except in a plain case of abuse of this discretion,
will not be disturbed by this court on appeal.
a judgment by default, on the ground of mistake, inadvertence, surprise, or excusable neglect
of the defaulting party, rests in the sound discretion of the court, and except in a plain case of
abuse of this discretion, will not be disturbed by this court on appeal. Where the defaulting
party discloses, in the case presented by him for an order to set aside such judgment, a degree
of negligence, carelessness, and lack of diligence not to be predicated of a prudent business
man in a matter of material concern to him, this court will not, on appeal disturb the order of
the court below denying such application.
[Headnote 2]
It has always been the policy of this court to treat such applications with liberality in the
interests of securing consideration upon the merits. See Horton v. New Pass Co., 21 Nev.
184, 188, 199, 27 P. 1018. It has uniformly been recognized, however, that a showing must
be made that the inadvertence or neglect was excusable. Harper v. Mallory, 4 Nev. 447. As
was stated in Shearman v. Jorgensen, 106 Cal. 483, 39 P. 863, 864:
Inadvertence in the abstract is no plea upon which to set aside a default. The court must
be made acquainted with the reasons for the inadvertence, and, if satisfactory, will act upon
them, and relieve from burdens caused by them. Also: Baratti v. Baratti (Cal. Dist.Ct. of
Appeals, Div. 3, 2d Dist., 1952), 242 P.2d 22, 24.
[Headnote 3]
In this case, while the affidavit of appellant as we have quoted it does show inadvertence
and neglect, no showing whatever is made, upon the basis of which we may say that the trial
court should have found that such inadvertence or neglect was in any degree excusable.
[Headnote 4]
Appellant asserts that the situation here is aggravated by virtue of the fact that the
judgment against him consists in greater part of penalties and counsel fees.
While these circumstances might well appeal to a trial court in determining its course in
furtherance of justice, they cannot affect our decision in the absence of any showing of
excuse.
The order of the district court is affirmed with costs.
____________
69 Nev. 171, 171 (1952) Smith v. Smith
ETHEL M. SMITH, Appellant, v. FRANK C. SMITH,
Respondent.
No. 3686
May 7, 1952. 243 P.2d 1048.
Motions to dismiss appeals from judgment and order of the Second Judicial District Court,
Washoe County; Taylor H. Wines, Presiding Judge.
Divorce action between husband and wife. The Second Judicial District Court, Washoe
County, Taylor H. Wines, Presiding Judge, granted a decree of divorce to the husband and the
wife appealed from the decree and from order denying a motion to set aside and vacate
judgment and jury verdict upon which it was based, and the husband moved to dismiss the
appeal. The Supreme Court, Merrill, J., held that judgment was final and was sufficient to
start running the period in which appeal was required to be taken therefrom.
Appeals dismissed.
Oliver C. Custer, of Reno, and C. M. Hawkins, of Claremont, California, for Appellant.
Pike, McLaughlin and Furrh, of Reno, for Respondent.
If a judgment is sufficiently existent and final to support an appeal it is sufficiently existent and final to
start running the time for taking of appeal.
2. Divorce.
Judgment as entered in writing and granting a husband a divorce was final and was sufficient to start
running the period in which appeal was required to be taken therefrom,
notwithstanding judgment made no provision for costs.
69 Nev. 171, 172 (1952) Smith v. Smith
period in which appeal was required to be taken therefrom, notwithstanding judgment made no provision
for costs. N.C.L.1929, sec. 8927.
3. Divorce.
Appeal from order denying motion for order vacating and setting aside verdict and judgment granting
husband a divorce was not under record an order made upon affidavits within statutory provision relating to
record on appeal where appeal is from order made upon affidavits, and reciting that copy of such affidavits
and counter affidavits should be annexed to order in place of bill of exceptions, so that affidavit used in
support of motion before trial court was required to be incorporated in bill of exceptions. N.C.L.1931-1941
Supp., sec. 9385.89.
OPINION
This is an appeal from judgment of the trial court granting a decree of divorce to
respondent husband and from order of that court entered after judgment denying a motion to
set aside and vacate the judgment and the jury verdict upon which it was based. Respondent
has made three motions with which we are here concerned.
1. Motion to dismiss appeal from judgment.
This motion is based upon the proposition that the appeal was not taken within the period
of six months provided by law. Judgment was entered in writing on June 23, 1950, following
a jury verdict rendered June 22, 1950. The appeal was taken August 20, 1951. Appellant
contends, however, that the time for perfecting her appeal has never yet started to run.
In this respect she asserts that due to the manner in which the verdict was rendered and
judgment entered thereon, there was in effect no judgment at all from which the time to
appeal might start to run. Further, she asserts that since the judgment as entered in writing
makes no provision for costs and the suit is equitable in character, the judgment is not final.
She contends, in this respect, that she may consistently: (1) accept that the judgment
sufficiently exists and is sufficiently final to support an appeal; and {2) contend
simultaneously that it is not sufficiently existent nor final to start running the time for
perfecting that appeal.
69 Nev. 171, 173 (1952) Smith v. Smith
sufficiently final to support an appeal; and (2) contend simultaneously that it is not
sufficiently existent nor final to start running the time for perfecting that appeal. In support of
her position she cites Dillon v. Dillon, 67 Nev. 428, 220 P.2d 213. In that case neither the oral
pronouncement of judgment nor the written judgment thereafter filed made any express
provision for costs. This court there held that the suit, being for divorce, was equitable in
character and that the judgment in order to be regarded as final should determine the costs
under Magee v. Whitacre, 60 Nev. 202, 96 P.2d 201, 203, 106 P.2d 751 (appearing in 96 P.2d
201 under its original title of Magee v. Lothrop). Appellant appears to construe the holding in
that case to be that time had therefore not started to run either from the oral pronouncement or
from the written judgment. Such was not the holding. This court held only that the oral
pronouncement was not final, pointing out that until the formal written judgment was filed,
Discretion to award costs was still in the court. [67 Nev. 435, 220 P.2d 216.] Clearly the
written judgment was regarded as final, the court stating: The statutory period of six months
within which to appeal did not commence to run until * * * rendition of the formal
judgment. In cases other than those where costs are allowed as a matter of course the
statutory provision is that costs may be allowed or not. (Sec. 8927, N.C.L.1929.) The
formal written judgment, making no provision for costs, could only be interpreted as an
exercise of judicial discretion not to allow costs to either party. Nothing, then, remained to be
done.
[Headnotes 1, 2]
We must, then, regard appellant's contentions as to the existence and finality of the
judgment as not available to her on this appeal. If a judgment is sufficiently existent and final
to support an appeal it is sufficiently existent and final to start running the time for the taking
of that appeal. The appeal, then, was not timely taken and the motion to dismiss must be
granted.
69 Nev. 171, 174 (1952) Smith v. Smith
2. Motion to strike from record on appeal the affidavit of Ethel M. Smith.
On December 21, 1950, appellant moved the trial court for an order vacating and setting
aside the verdict and judgment. This motion was denied by order entered June 13, 1951, and
an appeal therefrom was taken August 20, 1951. The record on appeal herein consists solely
of the court's order and appellant's notice of motion to which is attached the affidavit of
appellant used in support thereof before the trial court. No bill of exceptions was filed.
[Headnote 3]
Respondent has moved this court for an order striking the affidavit since it forms no part
of a bill of exceptions, contending that only by such a bill, properly settled and allowed and
duly filed, can a record be provided in support of the appeal from the order. Appellant, in
response, directs our attention to sec. 9385.89, N.C.L.1929, 1931-1941 Supp., relating to the
record on appeal where the appeal is from an order made upon affidavits. That section
states: copy of such affidavits and counter affidavits, if any, shall be annexed to the order in
place of the bill of exceptions * * *. Respondent, in reply, contends that this is not an appeal
from an order made upon affidavits within the meaning of that section. An examination of the
notice of motion demonstrates that this position is well taken.
The notice states: That upon the hearing of said motion the defendant will use, refer to
and rely upon this notice of motion and the records and files of this action * * *, the minutes
of the said court and Bill of Exceptions * * * and the transcript of proceedings * * * and upon
any and all matters, exhibits, motions, papers and orders appearing in the said action and
upon the oral testimony of J. Callahan, the court reporter who reported said trial and the oral
testimony of Mrs. August Brinkby, the residence witness adduced by plaintiff at said trial and
the affidavit of the defendant Ethel M. Smith.
69 Nev. 171, 175 (1952) Smith v. Smith
The grounds for the motion as stated in the notice clearly show that determination of the
motion required of the trial court a full reconsideration of evidence presented at the time of
trial. As stated in Padilla v. Mason, 53 Nev. 269, 298 P. 657, 658, The order denying the
motion to set aside the default was made upon the entire record before the lower court.
Section 9395, supra, [being present sec. 9385.89] does not contemplate such a case.
The affidavit of Ethel M. Smith, since it is not incorporated in any bill of exceptions, must
then be stricken in accordance with respondent's motion.
3. Motion to dismiss appeal from order denying motion to vacate and set aside verdict
and judgment.
We need not decide whether (in the light of the character of the motion as revealed by its
notice) the order denying the motion can properly be considered as an appealable order made
after final judgment. It is apparent that upon the striking of the affidavit of Ethel M. Smith,
the appeal from the order stands wholly unsupported and must be dismissed for that reason.
The appeal from the judgment herein is hereby dismissed. The affidavit of Ethel M. Smith
is ordered stricken from the record on appeal herein. The appeal from the order denying
motion to vacate and set aside verdict and judgment is hereby dismissed. No costs are
awarded.
May 29, 1952.
Per curiam:
Rehearing denied.
____________
69 Nev. 176, 176 (1952) Ramsay v. Ramsay
JOSEPH G. RAMSAY, Appellant, v. ELIZABETH
TAYLOR RAMSAY, Respondent.
Nos. 3680 and 3681
May 16, 1952. 244 P.2d 381.
Appeal from the Second Judicial District Court, Washoe County; William McKnight,
Judge, department No. 1.
Action for divorce by Joseph G. Ramsay against Elizabeth Taylor Ramsay. From a
judgment in favor of the defendant, the plaintiff appealed. The Supreme Court, Merrill, J.,
held that where divorce was sought on ground of extreme cruelty a single act of sexual
intercourse after separation of parties could not alone serve as condonation and that plaintiff
was not estopped from denying that there had been any condonation.
Reversed and remanded for new trial.
Anthony M. Turano, of Reno, for Appellant.
L. D. Summerfield and A. R. Schindler, of Reno, for Respondent.
1. Divorce.
The defense of condonation is not governed by statute in the State of Nevada but remains a part of the
common law, and is defined as forgiveness, express or implied.
2. Divorce.
In determining whether there has been condonation defeating right to divorce, question is whether, in
absence of express forgiveness, forgiveness may by implication be found from actions of the offended
spouse.
3. Divorce.
Where adultery is ground for divorce, a single act of intercourse between parties after separation will
suffice as condonation.
4. Divorce.
In determining whether there has been condonation defeating right to divorce, each case must be
considered upon its own facts.
5. Divorce.
Condonation may not be implied from actions which do not establish reconciliation, reinstatement or
forgiveness, but which rather indicate simply that such matters were in preliminary stage of consideration
by parties.
6. Divorce.
Where husband sought divorce on ground of extreme cruelty, a single act of sexual intercourse after
separation of parties did not establish condonation, since it fell short of reconciliation, reinstatement or
forgiveness.
7. Divorce.
Evidence of circumstances surrounding meeting of husband and wife and their participation in sexual
intercourse did not establish that motive of husband was to keep wife available for service of process in
divorce case, and husband was not thereby estopped from denying that indulgence in sexual intercourse
constituted condonation precluding right to divorce.
OPINION
Upon this appeal (from judgment of the trial court and from its order denying motion for
new trial) we are concerned with the question whether in an action for divorce a single act of
sexual intercourse occurring after separation of the parties can alone serve as condonation of
a course of conduct amounting to extreme cruelty.
The complaint of the plaintiff husband as supported by a bill of particulars, showed
separation of the parties in October, 1948, and asserted as cruelty a course of conduct on the
part of the defendant wife extending for a period of years prior thereto. In her answer to the
complaint the wife by her second and third separate and affirmative defenses, asserted that
plaintiff had condoned the alleged acts of cruelty. The second separate defense alleges
condonation generally. The third separate defense purports to state the facts of the alleged
condonation as follows:
That from on or about June 21, 1943 until on or about October 18, 1948 the plaintiff and
the defendant and the minor child lived together in a home at Haverford, Pennsylvania; that
on or about October 18, 1948 the plaintiff departed from said home in Haverford,
Pennsylvania, and from that date until July 7, 1949 continued to live separate and apart from
defendant; that the defendant on learning that the plaintiff was residing in Washoe County,
Nevada, came to Reno, Nevada, prior to July 7, 1949, bringing the minor child with her,
for the purpose of effecting a reconciliation with the plaintiff; that following the arrival of
the defendant in Reno, Nevada, the plaintiff consented to a meeting with her, and they,
together with the minor child, did meet in Reno, Nevada, on July 7, 1949; that following
said meeting and on said July 7, 1949, the plaintiff drove the defendant and said minor
child to Glenbrook Inn, Lake Tahoe, Douglas County, Nevada, where the plaintiff and
defendant were registered as husband and wife and had one bedroom assigned to them
and another to said minor child; that after dinner together at said Glenbrook Inn, and on
said July 7, 1949, the plaintiff and defendant retired to said bed room assigned to them,
and occupied the same through the night of July 7, 1949, and during the said night
plaintiff and defendant cohabited and had sexual intercourse; that the plaintiff and the
defendant and the said minor child spent the following day, July S, 1949, together, and
had dinner together the evening of said day; that early the following morning, July 9,
1949, the defendant was served with the summons and complaint on file in the above
entitled action, said complaint having been verified by plaintiff on July S, 1949; that
according to Plaintiff's Bill of Particulars in support of his alleged cause of action of
extreme cruelty, all of said alleged extreme cruelty occurred prior to July 7, 1949."
the defendant on learning that the plaintiff was residing in Washoe County, Nevada, came to
Reno, Nevada, prior to July 7, 1949, bringing the minor child with her, for the purpose of
effecting a reconciliation with the plaintiff; that following the arrival of the defendant in
Reno, Nevada, the plaintiff consented to a meeting with her, and they, together with the
minor child, did meet in Reno, Nevada, on July 7, 1949; that following said meeting and on
said July 7, 1949, the plaintiff drove the defendant and said minor child to Glenbrook Inn,
Lake Tahoe, Douglas County, Nevada, where the plaintiff and defendant were registered as
husband and wife and had one bedroom assigned to them and another to said minor child;
that after dinner together at said Glenbrook Inn, and on said July 7, 1949, the plaintiff and
defendant retired to said bed room assigned to them, and occupied the same through the night
of July 7, 1949, and during the said night plaintiff and defendant cohabited and had sexual
intercourse; that the plaintiff and the defendant and the said minor child spent the following
day, July 8, 1949, together, and had dinner together the evening of said day; that early the
following morning, July 9, 1949, the defendant was served with the summons and complaint
on file in the above entitled action, said complaint having been verified by plaintiff on July 8,
1949; that according to Plaintiff's Bill of Particulars in support of his alleged cause of action
of extreme cruelty, all of said alleged extreme cruelty occurred prior to July 7, 1949.
Demurrers to the separate defenses were overruled. After trial the court by its findings of
fact specifically found the quoted allegations to be true and by its conclusions found them to
suffice as condonation and divorce was denied. It is conceded by the wife that if condonation
be found, it must arise solely from the single act of intercourse; that there was no general
forgiveness on the part of the husband other than might there be found by implication. The
husband contends that a single act of intercourse may not, in the absence of some showing
of forgiveness and general restoration of marital rights, be held to constitute condonation
of a course of conduct amounting to extreme cruelty.
single act of intercourse may not, in the absence of some showing of forgiveness and general
restoration of marital rights, be held to constitute condonation of a course of conduct
amounting to extreme cruelty.
[Headnotes 1, 2]
The defense of condonation in this state is not governed by statute but remains a part of the
common law. Generally it can be defined as forgiveness, express or implied. 17 Am.Jur.
248 (Divorce and Separation secs. 195, 196). In the usual case, in the absence of express
forgiveness, the question is whether forgiveness may by implication be found from the
actions of the offended spouse, and such is the case before us. (For a case of express
forgiveness see Thompson v. Thompson, 49 Nev. 375, 247 P. 545, 47 A.L.R. 569.) In
England condonation has been defined as a blotting out of the offense imputed, so as to
restore the offending party to the same position he or she occupied before the offense was
committed. Keats v. Keats, 1 Swab. & T. 334. As to the character of forgiveness required
and of the actions by which such forgiveness is to be implied, the Lord Chancellor in that
case stated: I think that the forgiveness which is to take away the husband's right to a divorce
must not fall short of reconciliation, and that this must be shown by the reinstatement of the
wife in her former position * * *. In this country, to the same effect is Christensen v.
Christensen, 125 Me. 397, 134 A. 373, where it is stated: To be effectual, condonation must
include a restoration of the offending party to, or a continuance of all marital rights, after the
offense becomes known. While condonation imports forgiveness, the converse is not
necessarily true. The offended party may forgive, in that he may not bear any ill will, yet
withhold a complete reconciliation in the sense of reinstating the offended to conjugal
cohabitation and full marital rights. The preliminary steps toward reconciliation and ultimate
condonation, such as receiving the offending spouse back into the home, as in the case at
bar, does not alone constitute condonation so long as full marital rights are intentionally
withheld."
as in the case at bar, does not alone constitute condonation so long as full marital rights are
intentionally withheld.
[Headnote 3]
A distinction has uniformly been recognized between the requirements for condonation of
adultery and of extreme cruelty due to the difference in character of the marital offenses
themselves. In adultery the ground consists of a single act and the offense specifically is a
violation of marital chastity. The general rule in such cases appears to be that a single act of
intercourse will suffice as condonation since it serves to demonstrate in the clearest possible
manner that the offended spouse is in fact reconciled to the specific offense and has chosen to
forgive it. The action bespeaks forgiveness more clearly than words could do.
[Headnote 4]
In cases of cruelty the ground ordinarily is based not upon a single act of violence but upon
a continuing course of conduct. As pointed out in Graham v. Graham, 5 Scotch Cas. 4th ser.
1093, the true issue of the case is whether the [plaintiff] can with safety to person and
health live with [the defendant] now. (Also: Doe v. Doe, 5 N.Y.S. 514.) If acts of
condonation are to bespeak forgiveness, reconciliation and restitution they must be
considered in the light of that true issue and should reasonably demonstrate a determination
by the parties upon that issue. It does not, then, follow as in the case of adultery that from a
single act of intercourse in and of itself (as distinguished from a general continuation or
resumption of marital intercourse), one may imply reconciliation, reinstatement and
forgiveness. Phillips v. Phillips, 1 Ill.App. 245. It is generally recognized that each case must
be considered upon its own facts. Hanniball v. Hanniball, 18 N.J. Misc. 67, 10 A.2d 492; See
27 C.J.S. 615 (Divorce sec. 61 d). When so considered, an isolated act of intercourse has been
held insufficient to establish condonation even where {as here) it occurs following the
separation of the parties and with no subsequent revival of the offense.
(as here) it occurs following the separation of the parties and with no subsequent revival of
the offense. Weber v. Weber, 195 Mo. App. 126, 189 S.W. 577; See: Miles v. Miles, 1948,
131 W.Va. 513, 48 S.E.2d 669; Massie v. Massie, 202 Ia. 1311, 210 N.W. 431; (But see:
Davidson v. Davidson, 1940, 111 Vt. 68, 10 A.2d 197, for view contra).
[Headnote 5]
It should not, then, be said that condonation may by implication of law, be found from
actions which do not establish reconciliation, reinstatement or forgiveness but which, rather,
indicate simply that such matters were in the preliminary stage of consideration by the parties.
Kennedy v. Kennedy, 87 Ill. 250; Massie v. Massie, supra; Weber v. Weber, supra. Such a
policy would appear to discourage that which is most to be desired in such cases: an effort in
good faith to bring about a reconciliation. As was said in the dissenting opinion in Miles v.
Miles, supra: If condonation is to become the likely result of unsuccessful efforts to become
reconciled, it is certain that the person whose rights have been injured will be extremely
apprehensive of the slightest gesture that might result in surrendering a legal right to relief. It
will result in fewer, not more, reconciliations.
[Headnote 6]
In the case at bar the allegations of the separate defenses and, accordingly, the findings of
fact thereon, limited as they are to a showing of a single act of intercourse in the course of an
overnight excursion, fall far short of establishing reconciliation, reinstatement or forgiveness.
The most that may be said is that these matters were desired and sought by the wife and were
considered and rejected by the husband.
[Headnote 7]
Respondent contends, however, that the conduct of the respondent was such that this court,
actuated by considerations of public policy, should not permit him to deny forgiveness.
deny forgiveness. In this respect respondent points to the following finding made by the trial
court: One of the purposes of plaintiff's taking defendant to Glenbrook Inn, Lake Tahoe,
Nevada, on July 7, 1949, and occupying her time that day and the day of July 8, 1949, was so
that she would be within the State of Nevada to be served the first thing on the morning of
July 9, 1949. The court concluded that the husband is estopped by his conduct to claim that
he has not condoned the extreme cruelty charged against defendant by him.
A reading of the record upon this point convinces us that while the husband had the matter
of service of process in mind as one reason for accompanying his wife following their
meeting, it was but a minor and incidental purpose; that his primary purpose, due to his wife's
complaints, was to find a restaurant outside the city of Reno (then subject to a general strike
of culinary workers) where his wife and child could secure a meal; that an overnight
excursion was unplanned so far as either party was concerned and developed only through
lack of success in finding a restaurant as the trip progressed. Certainly the trip was not at all
necessary to the purpose in question. The wife herself testified in effect that she had
planned to remain in Reno beyond July 9th. As a matter of common knowledge we know that
in order to accomplish the service of process the husband need have kept the wife occupied
for less than an hour.
We cannot, under the circumstances (and in the absence of citation of pertinent authority),
regard the husband's incidental motive so reprehensible as to constitute in effect an estoppel
by public policy when essential elements of estoppel are so clearly lacking.
We therefore hold that the trial court was in error in concluding that condonation had been
established by proof of the facts as alleged and in rendering judgment denying divorce on that
basis.
By its findings the trial court refrained from making any determination as to the alleged
extreme cruelty of the wife {the testimony as to which was in direct conflict), deciding
only that if such cruelty existed it had been condoned.
any determination as to the alleged extreme cruelty of the wife (the testimony as to which was
in direct conflict), deciding only that if such cruelty existed it had been condoned.
Accordingly the judgment and order of the trial court are reversed and the matter
remanded for new trial without prejudice to the taking of further proceedings relating to
pleadings. Respondent wife is awarded her costs on this appeal.
Badt, C. J. and Eather, J., concur.
____________
69 Nev. 183, 183 (1952) Barlow v. Western Pacific R.R. Co.
K. C. BARLOW and FRANK TRUETT, Appellants, v.
WESTERN PACIFIC RAILROAD CO., Respondent.
No. 3675
May 23, 1952. 244 P.2d 695.
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Action between K. C. Barlow and another and Western Pacific Railroad Co. The Fourth
Judicial District, Elko County, Taylor H. Wines, Judge, entered judgment for Western Pacific
Railroad Co., and denied motion of Barlow and another for new trial, and they appealed. The
supreme court held that statute dealing with bills of exceptions and providing that party may
appeal upon the judgment roll alone, in which case only such errors can be considered as
appear on the face of the judgment roll, is limited to appeals from judgment and is not
available upon appeals from an order denying new trial.
Affirmed.
See also, 68 Nev. 511, 238 P.2d 901.
Geo. F. Wright, of Elko, for Appellants.
Milton J. Reinhart and Orville R. Wilson, of Elko, for Respondent.
Statute dealing with bills of exceptions and providing that a party may appeal upon the judgment roll
alone, in which case only such errors can be considered as appear upon the face of the judgment roll, is
limited to appeals from the judgment and is not available upon appeals from an order denying new trial.
N.C.L.1931-1941 Supp., sec. 9385.88.
Where appeal taken from judgment and from order denying new trial was supported by bill of exceptions,
appeal from judgment was dismissed as not timely taken and bill of exceptions was stricken for want of
service, with result that court was left with appeal from order denying new trial supported by record
consisting of documents making up the judgment roll, supreme court was limited to consideration of
whether error was committed by trial court in denying motion for new trial, and when judgment roll did not
disclose grounds upon which that motion was based, record could not be amplified by including order
denying motion for new trial, since such would transform judgment roll into bill of exceptions in
contravention of earlier action striking original bill. N.C.L.1931-1941 Supp., sec. 9385.88.
OPINION
Per Curiam:
This appeal originally was taken from judgment of the trial court and from its order
denying new trial and was supported by a bill of exceptions. On December 17, 1951, we
ordered the appeal from the judgment dismissed as not timely taken and the bill of exceptions
(save for the documents making up the judgment roll) stricken for want of service. (Barlow
and Truett v. Western Pacific Railroad Co., 68 Nev. 511, 238 P.2d 901.) We were therefore
left with the appeal from the order denying new trial supported by a record consisting of the
documents making up the judgment roll. We did not there pass upon the question whether
such an appeal supported in such a manner is permitted under our statutes, that question not
having been raised. That is the question now before us upon consideration of this appeal upon
the merits.
[Headnote 1]
Sec. 9385.88, N.C.L. 1929, Supp. 1931-1941, dealing with bills of exceptions, provides in
part: A party may appeal upon the judgment roll alone, in which case only such errors can be
considered as appear upon the face of the judgment roll. Respondent contends that this
provision is limited to appeals from the judgment and is not available upon appeals from an
order denying new trial. We are in agreement with this contention. (Accord: Mexican Dam &
Ditch Co. v. Schultz, 45 Nev. 260, 265, 201 P. 548, 549, As the appeal in this case is taken
from the order, there is no judgment roll to be considered.)
[Headnote 2]
Upon this appeal our limited consideration is whether error was committed by the trial
court in denying motion for new trial. The judgment roll is silent upon this subject. It does not
disclose the grounds upon which that motion was based, nor, indeed, that such a motion or
order thereupon ever was made. Appellant has suggested diminution of the record in this
respect and that it should be amplified by including the order of the trial court denying motion
for new trial under that portion of sec. 9385.88 which provides: If the appeal be from an
order [the original bill of exceptions herein provided for] shall be annexed to such order * * *
and the same shall be and become the record on appeal * * *. This, however, would
transform the judgment roll into a bill of exceptions in the absence of any service thereof or
establishment that it contains the substance of the proceedings relating to the points involved
in the appeal and in the face of our earlier action striking the original bill. Clearly this would
not be proper.
Accordingly there is nothing before us upon the basis of which we may consider the appeal
herein and the trial court must be affirmed, with costs. So ordered.
____________
69 Nev. 186, 186 (1952) State Ex Rel. Digby v. District Court
THE STATE OF NEVADA, on the Relation of FRANK EDWIN DIGBY, Relator, v. THE
EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the
County of Clark, And THE HONORABLE A. S. HENDERSON, Judge of Department 2
thereof, Respondents.
No. 3697
May 28, 1952. 244 P.2d 866.
Proceedings by the State of Nevada on the relation of Frank Edwin Digby against the
Eighth Judicial District Court in and for the County of Clark, and the Honorable A. S.
Henderson, Judge of department 2 thereof, for peremptory writ compelling court to entertain
appeal of relator from judgment of municipal court. The Supreme Court held that under
statutory municipal charter provision that appeals to district court from judgment of
municipal court may be taken in same manner as appeals from justice courts, and statute
requiring appellant from justice court to file with justice and serve upon district attorney, a
notice of appeal, service of notice of appeal on city attorney who had conducted proceedings
in municipal court and upon municipal judge, was sufficient compliance.
Petition for peremptory writ granted, demurrer to petition overruled.
Morse & Graves, and William R. Morse, all of Las Vegas, for Relator.
Howard W. Cannon and Ralston O. Hawkins, both of Las Vegas, for Respondents.
Courts.
Under municipal statutory charter provision that appeals to district court may be taken from any final
judgment of municipal court in same manner as in cases of appeal from justice court, and statute relating to
appeals from justice court and requiring party intending to appeal to file with justice and to serve upon
district attorney, a notice of appeal, party desiring to appeal from judgment of municipal court sufficiently
meets requirements when notice of appeal is filed with municipal judge and is served upon city
attorney who conducted proceedings in municipal court.
municipal judge and is served upon city attorney who conducted proceedings in municipal court. St.1949,
c. 132, sec. 29; N.C.L.1929, secs. 11310, 11313.
OPINION
Per Curiam:
Relator was convicted in the municipal court of the City of Las Vegas of violation of a city
ordinance. The city was created by an act of the legislature which provides for a municipal
court with powers and jurisdiction as provided by law for justices of the peace. Under the
charter provisions, Stats. of Nevada, 1949, 232, amending charter section 29, Appeals to the
district court may be taken from any final judgment of said municipal court in the same
manner and with the same effect as in cases of appeal from justice courts in civil and criminal
cases, as the case may be. Such statutory reference is to sec. 11310, N.C.L. 1929, which
requires the party intending to appeal to file with the justice and serve upon the district
attorney a notice of appeal. Under the following section the justice must transfer all papers
relating to the case and a certified copy of his docket to the clerk of the district court, which,
under sec. 11313, N.C.L. 1929, must try the same de novo.
Relator, in appealing from the municipal court to the district court, did not file his notice
of appeal with the justice nor did he serve his notice of appeal on the district attorney. He
filed his notice of appeal with the municipal judge and served it on the city attorney. On
motion of the city attorney, the respondent district court dismissed the appeal, holding that
relator, in failing to serve his notice of appeal on the district attorney, had failed to invoke the
jurisdiction of the district court.
The parties meet squarely upon the issue as to whether the charter provision that such
appeal may be taken * * * in the same manner * * * as in cases of appeal from justice
courts requires a strict compliance with the statutory requirement for service of notice of
appeal on the district attorney. We are of the opinion that the phrase "in the same manner"
does not, under the circumstances, require such strict compliance.
that the phrase in the same manner does not, under the circumstances, require such strict
compliance. Respondents concede that the filing with the municipal judge, despite the
statutory requirement that the filing be with the justice, was sufficient. They say, It appears
clear that the word justice' contained in 11310 N.C.L., 1929, can only be interpreted to
mean the municipal judge alone on an appeal from the municipal Court. He is the justice'
meant by the wording of 11310.
Service of the notice of appeal on the district attorney would be just as meaningless as the
filing of the notice of appeal with the justice of the peace. Notice to the justice of the peace
could certainly not set in motion the required certifying of the papers to the district court by
the municipal judge. The county is not an adverse party to the appeal and the district attorney
is not interested therein. The record shows that the city attorney conducted all proceedings in
the municipal court and in the arraignment and setting of the cause for trial in the district
court, and made the motion for the dismissal of the appeal.
No case in point has been cited. In Buman v. Sturn, 73 N.D. 561, 16 N.W.2d 837, in
construing a tax statute requiring the issuance of a tax deed by the county auditor to the
county, the court quoted Phillips v. County Commissioners, 122 Mass. 258, as follows: The
phrase in the same manner' means, by similar proceedings, so far as such proceedings are
applicable to the subject matter. Commonwealth v. Hildebrand, 139 Pa.Super. 304, 11 A.2d
688, applied the same definition. We think it applicable here, and that service on the city
attorney was accordingly sufficient.
For the reasons given, we conclude that the respondents should not have rejected
jurisdiction but should have proceeded with the trial. The petition for the peremptory writ is
hereby granted. The demurrer to the petition is overruled.
____________
69 Nev. 189, 189 (1952) Biel v. Godwin
LOUIS G. BIEL, Appellant, v. EVELYN M. GODWIN,
Formerly EVELYN M. BIEL, Respondent.
No. 3690
June 19, 1952. 245 P.2d 997.
department No. 2.
Action by divorced wife to collect accrued support payments. From a judgment for
plaintiff, defendant appealed. The Supreme Court, Merrill, J., held that the accrued payments
were final and, that prior payments would be applied to the oldest debt in determining
whether action was barred by statute of limitations.
Affirmed with costs.
Hawkins and Cannon, of Las Vegas, for Appellant.
Gregory and Callister, of Las Vegas, for Respondent.
1. Divorce.
California judgment awarding child support was final as to accrued payments and establishment of the
amount of accrued payments by the California court was not necessary to the according of full faith and
credit to the California judgment.
Where no specific application of payments of an award of support had been made by either party, the
court would make application of the payments to the oldest debt, in determining whether action was barred
by statute of limitations.
3. Divorce.
Under the record, court's finding that husband had failed to prove an agreement whereby wife would
accept a lesser sum for monthly support of children than the original decree provided could not be
disturbed.
4. Estoppel.
In the absence of compromise and settlement, or accord and satisfaction, acceptance of a portion of a
valid past due debt cannot be the basis of an estoppel and is not a bar to further claim for the balance.
5. Divorce.
Where it was alleged that under agreement which was basis for foreign decree awarding child support,
cessation of support payments would come when the children became self-supporting, and self-support of
children was only temporary, the question of self-support was not a proper matter of defense to an
action on the foreign decree for accrued support payments.
69 Nev. 189, 190 (1952) Biel v. Godwin
to an action on the foreign decree for accrued support payments.
The appellant could not raise the question of the uncertainty of the time for payments under the foreign
decree for the first time on appeal.
7. Pleading.
Where no defect appeared upon the face of the complaint, which did not incorporate the foreign divorce
decree sued on, but merely referred to it, the complaint was not generally demurrable regardless of a
possible defect in the decree itself.
8. Divorce.
Evidence sustained findings regarding the amount due under foreign judgment awarding child support.
OPINION
This is an action brought upon a foreign judgment. On August 22, 1938 respondent as
plaintiff wife secured an interlocutory decree of divorce from appellant in the state of
California, which decree awarded her custody of the minor children of the parties and ordered
that appellant pay her the sum of $50 a month for their support. On September 18, 1939 that
decree was made final. On April 7, 1950 this action was brought by respondent to secure the
sum of $3,145 accrued support payments. Judgment was rendered in that amount following
trial before the court without a jury. This appeal is taken from that judgment and from order
denying new trial.
[Headnote 1]
Appellant first contends that the California judgment was not final since it was at all times
subject to modification; that until steps were first taken in the California suit to establish the
amount of accrued payments then due, no action upon that judgment could be maintained. In
California, as in most states, the jurisdiction to modify an award of support applies only as to
future installments. As to those already accrued the judgment is final.
69 Nev. 189, 191 (1952) Biel v. Godwin
is final. Parker v. Parker, 203 Cal. 787, 266 P. 283; Keck v. Keck, 219 Cal. 316, 26 P.2d 300;
Dreesen v. Dreesen, 31 Cal.App.2d 479, 88 P.2d 223. Accordingly, as to accrued installments
full faith and credit must be accorded the California judgment. Establishment by that court of
the amount of accrued payments is not necessary. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682,
54 L.Ed. 905, 28 L.R.A. (N.S.) 1068, 20 Ann.Cas. 1061; McGregor v. McGregor, 52 Colo.
292, 122 P. 390.
[Headnote 2]
Appellant next contends that all payments accruing prior to April 7, 1944 are barred by the
statute of limitations since a cause of action arose on each payment as it became due. It
appears from the complaint that out of a total sum of $6,900 accruing under the California
decree the sum of $3,755 had been paid. It does not appear that any specific application of
these payments was made by either party. In the absence of such application the general rule
is that the court will make application to the oldest debt. See 70 C.J.S. 275 (Payment, sec.
72). Simple arithmetic demonstrates that with such application no part of the sum sought
accrued beyond the statutory period of six years.
[Headnotes 3, 4]
Appellant next contends that respondent is estopped to demand more than $40 a month
after November, 1941, for the reason that in that month he informed her that he would cease
all payments unless she accepted the lesser sum. Respondent denied receiving any such letter
and denied that she had ever agreed to a lesser sum than $50 a month. The trial court
specifically declared that appellant had failed in his proof that any understanding had been
reached in this regard and specifically found that respondent did not agree to any such
reduction. Under the state of the record we are unable to disturb that finding. Estoppel by
acceptance of benefits may not, then, be asserted. See 19 Am.Jur. 692 (Estoppel, sec. 65).
The payment of a valid and undisputed past-due debt cannot be the basis of an estoppel,
and an acceptance of a portion
of that to which a party is entitled, unless it is done by way of compromise and settlement
or accord and satisfaction, is not a bar to the subsequent assertion of a claim for the
balance,
* * *."
69 Nev. 189, 192 (1952) Biel v. Godwin
undisputed past-due debt cannot be the basis of an estoppel, and an acceptance of a portion
of that to which a party is entitled, unless it is done by way of compromise and settlement
or accord and satisfaction, is not a bar to the subsequent assertion of a claim for the balance,
* * *.
[Headnote 5]
Appellant next contends that during a portion of the period covered by the payments the
children were self-supporting; that under the agreement which was the basis for the California
decree, payments were then to cease. That agreement provides for the payment of support
until such time that said minor children are self-supporting or have arrived at the age of
majority. The court below found that the children were not self-supporting at the time this
action was brought. It is clear that any self-support provided by the children was temporary at
most and would warrant at most a reduction in amount of the payments rather than a
termination of the father's obligation of support. This, we feel, is not proper matter of defense
in this action but is rather matter which might have formed a basis for modification of the
California decree. Rosher v. Superior Court, 9 Cal.2d 556, 71 P.2d 918.
[Headnotes 6, 7]
Appellant next contends that the California decree is unenforceable for uncertainty in that
it does not specifically state when payments were to begin or cease. This point was not raised
in the trial below and will not here be considered for the first time. Appellant contends,
however, that this same uncertainty is carried into the complaint, rendering it generally
demurrable. The complaint, however, does not incorporate the California decree in full but
merely refers to it. If there be any defect in the decree it does not appear upon the face of the
complaint. The complaint itself was not attacked as ambiguous by special demurrer.
69 Nev. 189, 193 (1952) Biel v. Godwin
[Headnote 8]
Finally appellant contends that (recognizing his obligation to pay $50 each month) proof
of payment demonstrates that at most judgment should have been in the sum of $1,275.
Respondent testified categorically that the total sum she had received was $3,755. This was
disputed by appellant's testimony but still provides evidence in support of the court's findings
which, accordingly, we are not willing to disturb. Appellant contends, however, that
respondent under cross-examination abandoned her position as to the total sum received by
admitting that with certain specific exceptions the sum of $40 had been received each month;
that at most under these circumstances the sum of $1,275 would now be due. After a careful
reading of the pertinent portion of the respondent's cross-examination in its entirety, we have
reached the conclusion that she did not abandon or weaken her position. The effect of that
cross-examination would appear to be simply to establish that with certain exceptions, such
payments as were received were in the sum of $40.
Judgment and order of the trial court are affirmed with costs.
____________
69 Nev. 194, 194 (1952) Ex Parte Toczylowski
In the Matter of the Application of EDWARD TOCZYLOWSKI,
for Writ of Habeas Corpus.
No. 3713
June 25, 1952. 245 P.2d 1004.
Application for a writ of habeas corpus to secure petitioner's release from custody on bail
pending his trial on a charge of first degree burglary. The Supreme Court, per curiam, held
that the petition must be denied, in the absence of a recital of facts or reference to any record
of matters bearing on elements to be considered in fixing bail, even if the amount of bail
fixed by a justice court and a district court was excessive per se.
Denied without prejudice.
Frank R. Petersen, of Reno, for Petitioner.
Jack Streeter, District Attorney, and A. D. Jensen, Assistant District Attorney, of Washoe
County, for George W. Lothrop, Sheriff of Washoe County, Respondent.
Habeas Corpus.
A habeas corpus petition for release from custody on bail pending petitioner's trial on charge of
first-degree burglary must be denied by supreme court, in absence of recital of facts or reference to record
of matters bearing on elements to be considered by court in determining proper bail, even if amount of bail
fixed by justice court and district court was excessive per se. N.C.L.1929, sec. 11108; Const. art. 1,
secs. 6, 7.
OPINION
Per Curiam:
Petitioner alleges that he was arrested upon an information charging him with first-degree
burglary in that he unlawfully, feloniously, etc., entered certain premises in the nighttime
with the intent then and there to commit a felony, to wit, murder; that a preliminary
examination was held in the justice court of Reno township and petitioner held to answer to
the district court. Bail was fixed at $20,000, and motion for reduction thereof was denied.
Petitioner was thereafter arraigned in the Second judicial district court, bail again fixed at
$20,000 and a reduction thereof again denied.
69 Nev. 194, 195 (1952) Ex Parte Toczylowski
Second judicial district court, bail again fixed at $20,000 and a reduction thereof again
denied. The offense is punishable by imprisonment for not less than one nor more than fifteen
years. Petitioner alleges that bail of $20,000 for the offense charged is per se unreasonable
and excessive and violative of secs. 6 and 7 of article I of the state Constitution and under
sec. 11108, N.C.L.1929, whereunder bail in a case of such an offense is a matter of right and
excessive bail may not be required.
This court has on several occasions indicated various elements to be considered in fixing
bail. Ex Parte Jagles and Varnes, 44 Nev. 370, 195 P. 808; Ex Parte Malley, 50 Nev. 248, 256
P. 512, 53 A.L.R. 395; and the cases and texts therein cited. Petitioner has cited to us many
cases in which, on habeas corpus, a court has ordered a reduction of bail. In these cases
sundry records and proceedings were before the court whereunder it could consider the
necessary elements and act accordingly. The present petition recites no facts other than those
recited above, nor does it refer to any record whereunder this court might intelligently
consider the several elements necessarily involved. Even if we determined that bail in the
sum of $20,000 for the offense charged is per se excessive, we should have nothing to guide
us in determining the amount in which bail should be fixed. It definitely appears that there
was a preliminary hearing before the committing magistrate, that a motion for reduction of
bail was presented to that magistrate, and a like motion submitted to the district court. These
three proceedings must contain some record of the matters presented touching upon the
elements to be considered by a court in determining proper bail, but they are not before us.
Under the circumstances we cannot do otherwise than deny the petition, but without prejudice
to the right of the petitioner again to present the matter with proper support.
The petition is denied without prejudice.
____________
69 Nev. 196, 196 (1952) State v. District Court
THE STATE OF NEVADA, on the Relation of MYRTA C. ALLEN, an Incompetent Person,
by and Through Her Guardian, MERLE A. GUTHRIE, Relator, v.
THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in
and for The County of Washoe, Dept. No. 1 Thereof, and the HON. JOHN S. BELFORD,
Judge thereof.
No. 3702
June 26, 1952. 245 P.2d 999.
Original proceeding in mandamus by petitioner to compel respondent court to perpetuate
the testimony of an insurance company officer or agent and two persons alleged to be insured.
The Supreme Court, Eather, J., held that one injured in an automobile accident does not
have right to obtain information regarding automobile liability policy of motorist by a
proceeding to perpetuate testimony, on ground that injured person expects to bring action
against motorist and insurer as soon as injured person recovers a judgment against motorist in
pending personal injury action.
Writ denied and the alternative writ is discharged.
Royal A. Stewart, of Reno, for Relator.
Bert Goldwater, of Reno, for Respondents.
Depositions.
One injured in an automobile accident does not have the right to obtain information regarding automobile
liability policy of motorist by a proceeding to perpetuate testimony, on ground that injured person expects
to bring action against motorist and motorist's insurer as soon as injured person recovers a judgment
against motorist in pending personal injury action. N.C.L.1929, secs. 9011-9014; St.1949, c. 127.
OPINION
Petitioner seeks a writ of mandamus to compel the respondent court to perpetuate the
testimony of an insurance company officer or agent and two persons alleged to be insured.
ance company officer or agent and two persons alleged to be insured.
Petitioner applied to the court below to obtain an order for examination of witnesses and
for subpoena duces tecum for Stanley Hyman, agent for Farmers Insurance Exchange and
Truck Insurance Exchange, Adolph Stank and Edwin A. Stank. She alleged that she expected
to be a party to an action in which she expected the insurance companies and the named
individuals would be adverse parties. The action was expected for the reason that petitioner,
as plaintiff, had commenced suit against Adolph Stank and Edwin A. Stank for damages on
account of personal injuries received in an automobile accident in which accident Edwin A.
Stank was driving an automobile registered in the name of Adolph Stank and covered by a
policy or policies with the named insurance companies. Petitioner further alleged to the court
below: That as soon as your petitioner recovers a judgment against Edwin A. Stank and
Adolph Stank in said pending action, your petitioner intends to bring suit on said policies of
insurance against the Truck Insurance Exchange and the Farmers Insurance Exchange and
each of them; Edwin A. Stank and Adolph Stank will be joined as parties defendant in said
suit. Petitioner further alleged that the proposed parties had knowledge, information and
documents which would be necessary and material evidence in the expected action and that
she intended to prove by testimony sought to be adduced that Edwin A. Stank and Adolph
Stank are in fact insured.
The district judge then presiding
1
ordered the examination and directed the clerk to issue
the subpoenas prayed for and the same were issued and served upon Stanley Hyman, Adolph
Stank and Edwin A. Stank. These last-named persons moved to quash the subpoenas duces
tecum upon the grounds, among others, that petitioner sought evidence, otherwise
inadmissible, bearing upon the pending action and that the expected action was too
remote to justify a need for perpetuating testimony.
____________________

1
Honorable Wm. McKnight was presiding in Department 1 of the Second judicial district court but retired
during the pendency of this case; the parties stipulated to substitute Honorable John S. Belford as respondent,
the latter being appointed by the governor to the vacancy created.
duces tecum upon the grounds, among others, that petitioner sought evidence, otherwise
inadmissible, bearing upon the pending action and that the expected action was too remote to
justify a need for perpetuating testimony. The lower court granted the motion and quashed the
subpoenas.
The real issue before this court is now: Does a party injured in an automobile accident
have the right to obtain information regarding the policy of insurance of the person allegedly
causing the injuries, by a proceeding to perpetuate testimony in which the injured person
alleges that he expects to be a party to an action against the insured and insurer as soon as he
recovers a judgment against the insured in a personal injury action then pending?
This case is one of first impression in this court, and must be determined in accordance
with our conception of the meaning of our applicable statutes with due regard to the decisions
of other courts construing similar provisions. The statutes to which we are about to refer are
found unchanged in Nevada Compiled Laws of 1929; Revised Laws of Nevada, 1912;
Cutting's Compiled Laws of Nevada, 1900; General Statutes of Nevada, 1885; and Compiled
Laws of Nevada, 1873. Despite such antiquity no case has ever reached this court indicating
an attempt of an expectant plaintiff to take the deposition of an insurance company officer or
agent as expectant defendant for use in a contemplated action against such company after the
expectant plaintiff shall have obtained an expected judgment against the insurance company's
insured.
The proceedings in the lower court were brought pursuant to secs. 9011-9014,
N.C.L.1929. The pertinent sections with which we are concerned provide:
9011. The testimony of a witness may be taken and perpetuated as provided in this
chapter.
9012. The applicant shall present to a district judge a petition verified by the oath of the
applicant, stating: "1.
1. That the applicant expects to be a party to an action in a court in this state, and, in such
case, the name or names of the person or persons whom he expects will be adverse parties; or
2. That the proof of some fact or facts is necessary to perfect the title to property in
which he is interested, or to establish marriage, descent, heirship, or any other matter which it
may hereafter become material to establish, though no suit may at the time be anticipated, or,
if anticipated, he may not know the parties to such suit; and
3. The name of the witness to be examined and his place of residence, and a general
outline of the facts expected to be proved.
9013. The judge to whom such petition is presented shall make an order allowing the
examination before any judge of a court of record, and prescribing the notice to be given,
which notice, if the parties are known and reside in this state, shall be personally served on
them, and if unknown, or nonresidents, such notice shall be served on the clerk of the county
where the property to be affected by such testimony is situated, and a copy thereof published
in some newspaper, to be designated by the judge making the order.
9014. Upon proof of the service of the notice as provided in the last section, it shall be
the duty of the judge before whom the testimony is ordered to be taken to proceed to take the
testimony of the witnesses named in said petition, upon the facts therein set forth, and the
taking of the same may be continued from time to time, in the discretion of the judge.
9017. If the trial be had between the persons named in the petition as parties expectant,
or their successors in interest, or between any parties wherein it may be material to establish
the facts which such testimony proves or tends to prove, upon proof of the death or insanity
of the witness, or of his inability to attend the trial by reason of age, sickness, or settled
infirmity, the testimony, or certified copies thereof, may be used by either party, subject to
all legal objections.
by either party, subject to all legal objections. But if the parties attend at the examination, no
objection to the form of an interrogatory shall be made at the trial unless the same was stated
at the examination.
Perpetuation of testimony, traditionally and historically, is a branch of the auxiliary
jurisdiction of the equity courts, provided to overcome defects in the common-law procedure
and accomplished by the bringing of separate suits in equity in aid of the principal
common-law action. The first auxiliary branch was that of the suit for discovery against the
adverse common-law party. The second was that of taking of testimony of witnesses in
advance of trial, divided into suits for the taking of testimony de bene esse, in aid of a
pending action, and suits to perpetuate testimony, in aid of a contemplated action. See: 1
Pomeroy's Equity Jurisprudence, 279, secs. 190, 190a. Thus, historically a distinction was
recognized between a bill of discovery against the adverse party and a suit to take testimony
of a witness not a party to the action.
The auxiliary jurisdiction of the equity courts has uniformly been made the subject of
statute in the several states and in most instances the proceedings and requirements have been
simplified. However, the use of the language (as in our statute), The testimony of a witness
may be taken, has led some courts in the light of historical background, to hold that the
examination of parties (being the subject of discovery) is not permitted under a perpetuation
of testimony statute. Winter v. Elmore, 88 Ala. 555, 7 So. 250. Certainly it may well be
argued that the legislature had in mind the perpetuation of testimony and not discovery.
It is, however, more generally held that the broad scope of statutes such as ours does
contemplate discovery as well as perpetuation of testimony and does thereby supplement the
discovery statutes which by their terms are ordinarily limited to pending actions, and, in that
respect, are narrower in their scope than the equity bill.
bill. In re Darling, 31 Misc. 543, 64 N.Y.S. 793, 794; See: 3 Stanford Law review, p. 530,
April 1951.
It is, however, also generally recognized that notwithstanding the extremely broad scope of
such statutes as ours, the discovery aspect of such statutes must be construed with limitations,
for one may not pry into the business and personal affairs of another without good reason.
Thus it is stated in In re Darling, supra, that the purpose of such legislation was to embrace
every case where discovery could formerly be had by a bill in equity. The principal
determination, thus has become that of whether the applicant has a discoverable interest in
the subject of the interrogation or examination. Superior Ins. Co. v. Superior Court, 37 Cal.2d
749, 235 P.2d 833, 835.
While the equitable bill of discovery was not confined in its application to pending
actions, it was generally limited to instances where a cause of action was pending or
imminent. 1 Pomeroy's Equity Jurisprudence, 229, sec. 197b. As the first requisite, the
plaintiff in the equity suit for discovery must show that he has a title or interest in the
subject-matter to which the proposed discovery relates, such an interest as he can maintain or
defend in a proceeding pending or to be brought in another tribunal, and must thus show that
he is entitled to the discovery. A mere stranger is never allowed to maintain a suit for
discovery concerning a subject-matter in which he has no interest enforceable by a judicial
proceeding, or concerning the title or estate of a third person. Ibid. 302, sec. 198.
It is contended by the respondent that appellant has no discoverable interest in the policy
of insurance which is the subject of the proposed examination. Appellant contends that the
case of Superior Ins. Co. v. Superior Court, supra, decided under a perpetuation of testimony
statute similar to ours, is decisive of the point. The circumstances surrounding the desired
perpetuation of testimony in that case were the same as are before us. The court there held
that the applicant had a discoverable interest in the insurance policy.
court there held that the applicant had a discoverable interest in the insurance policy. The
California rule is based upon an insurance statute of that state. Under section 11580 of the
insurance code of California as amended (Statutes of California, 1949, chap. 1380, par. 8), a
policy of insurance must carry:
A provision that whenever judgment is secured against the insured or the executor or
administrator of a deceased insured, in an action brought by the injured person or by his
personal representatives, in the case of an action for personal injuries, or in an action brought
by the heirs or personal representatives of the deceased, in the case of an action for wrongful
death, then an action may be brought against the insurer on the policy and subject to its terms
and limitations, by such judgment creditor to recover on the judgment.
In response to the argument in the Superior Ins. Co. case that to allow the perpetuation of
testimony would violate the sanctity of private contracts, the court said:
A sufficient answer to such contention is found in the fact that an automobile liability
policy evidences a contractual relation created by statute which inured to the benefit of any
and every person who might be negligently injured by the assured as completely as if such
injured person had been specifically named in the policy,' i.e. a contractual relation is
created between the insurer and third parties.' (Malmgren v. Southwestern A. Ins. Co.,
(1927) 201 Cal. 29, 33, 255 P. 512; See Abrams v. American Fidelity & Cas. Co. (1948) 32
Cal. 2d 233, 234, 195 P. 2d. 797; Ins Code 11580, 2 Cal. Jur. 10-yr. Supp. 145 and cases
there cited.) (Italics added.)
Nevada has no such insurance statute as California's. While Nevada has a financial
responsibility law (See motor vehicle safety-responsibility act of 1949, chap. 127, page 198,
Stats. of Nev. 1949), such statute merely provides for a bond, or insurance policy in lieu of a
bond, as security for any judgment or judgments for damages, which judgments must first be
obtained before resort may be had to the security.
Security for the payment of a claim by the person responsible for the damage is a far
different thing from an existent direct contractual obligation for such payment. It is true that
in California that contractual obligation may not be enforced until judgment has first been
secured against the person responsible. This, however, does not detract from the fact that at
the time of an accident an injured person has a right against the insurance company identical
with that against the responsible party, subject only to its establishment by judgment. The
injured party, then, has an actual interest in the policy of insurance identical in scope with his
cause of action against the responsible party. He is not a mere stranger to the policy, curious
to ascertain the extent to which the responsible party may have protected himself beyond the
security requirements of our law. This clear distinction (which is emphasized by the stress
placed by the California court upon its particular statutory provisions) renders the Superior
Insurance Company case inapplicable. The dissenting opinion in that case rather than the
majority must be held to state the proper rule in this state. There it is said:
The conclusion that an injured person has a discoverable interest' in the contract insuring
the liability of the tort feasor whenever an action is pending against the named insured,
misconceives the relationship of the parties. The demand of [applicant] to examine the policy
by way of perpetuation of testimony is based upon the assertion that she expects to sue
Superior Insurance Company and its insured in the event that she obtains a judgment against
him. But such litigation will not be to recover' a loss under the policy; properly classified, it
is an action to be reimbursed for damages suffered. * * * The primary purpose of allowing an
injured person to sue the insurer is to protect the judgment creditor against the bankruptcy or
insolvency of the debtor. * * * [Applicant] claims to be entitled to know the amount of the
maximum liability of the insurer and the premiums paid on the policy. These facts are not
germane to any issue which may be presented in the action against the insured; obviously
the sole purpose of the present proceeding is to obtain information which will aid in
negotiating for a settlement.
facts are not germane to any issue which may be presented in the action against the insured;
obviously the sole purpose of the present proceeding is to obtain information which will aid
in negotiating for a settlement. This is not within the legitimate purview of the statutes
providing for the perpetuation of testimony and the issuance of a subpoena duces tecum.
The petition for a writ of mandamus is denied and the alternative writ is discharged and
respondent awarded costs.
____________
69 Nev. 204, 204 (1952) In Re Carl Ray
In the Matter of the Estate of CARL RAY, Deceased,
In re Petition of ROBERT E. BARRINGER.
No. 3673
June 27, 1952. 245 P.2d 990.
department No. 1.
Proceeding in the matter of the estate of Carl Ray, deceased, wherein Robert E. Barringer
filed petition seeking share of estate as pretermitted heir. The Eighth Judicial District Court,
Clark County, Frank McNamee, Judge, department No. 1, granted the petition, and appeal
was taken from that order and from an order denying a new trial. The Supreme Court, Merrill,
J., held that will showed no intention to disinherit child not named in will, and child could
take under statute dealing with pretermitted heirs.
Affirmed.
See also, 68 Nev. 492, 236 P.2d 300.
John G. Cope, of Las Vegas, Woodburn, Forman and Woodburn, and Gordon R.
Thompson, of Reno, for Appellant.
Hawkins & Cannon, of Las Vegas, for Respondent.
69 Nev. 204, 205 (1952) In Re Carl Ray
Whether statute providing that pretermitted heir shall take share as if testator died intestate unless it
appears that omission from will was intentional, frustrates testamentary intent is legislative rather than
judicial consideration. N.C.L.1929, sec. 9919.
2. Descent and Distribution.
In absence of apparent testamentary intent, it is not within judicial province to substitute for intent court's
views as to properties and needs of each individual case and to modify or exclude application of
presumption raised by statute authorizing pretermitted heir to take share as if testator had died intestate
unless it appears that omission from will was intentional. N.C.L.1929, sec. 9919.
Clause of will bequeathing only one dollar to person who would share in estate if testator had died
intestate but who contests will or attacks estate was not for dispositive purposes and was not intended to
provide for testator's child who was nowhere mentioned in will, and hence there was omission to provide
for child within statute dealing with pretermitted heirs. N.C.L.1929, sec. 9919.
Clause of will providing that if any person who would share in estate if testator had died intestate should
endeavor to succeed to any part of estate otherwise than through will, such person should receive only one
dollar, did not show intention to disinherit testator's child who was nowhere named in will, and hence such
child was pretermitted heir and could take share as if testator had died intestate. N.C.L.1929, sec. 9919.
General exclusion in will of all persons not mentioned is not sufficient to show that specific omission was
intentional so that omitted child is not within statute dealing with pretermitted heirs. N.C.L.1929, sec.
9919.
Fact that testator obviously must have intended to be effective clause bequeathing only one dollar to
person who would have been entitled to share in estate if testator had died intestate and who endeavors to
contest will, is not sufficient to preclude pretermitted heir from taking intestate share under statute in
absence of any indication of remembrance of such pretermitted heir. N.C.L.1929, sec. 9919.
Carefully drawn and detailed will declaring in first paragraph that testator had only wife and one named
child, even considered in its entirety, did not show intent to disinherit child not named in will so as to
preclude such child's taking intestate share under statute dealing with pretermitted heirs. N.C.L.1929, sec.
9919.
69 Nev. 204, 206 (1952) In Re Carl Ray
OPINION
Respondent Robert E. Barringer filed a petition in the proceedings below seeking his share
of this estate as pretermitted heir of the decedent. The petition was granted in the lower court
and this appeal (from that order and from order denying new trial) has been taken by Carlita
Nancy Ray, minor child of the decedent and one of the principal beneficiaries under his last
will. Barringer's rights are asserted under sec. 9919, N.C.L.1929, which provides: When any
testator shall omit to provide in his or her will for any of his or her children, or for the issue
of any deceased child, unless it shall appear that such omission was intentional, such child, or
the issue of such child, shall have the same share in the estate of the testator as if he or she
had died intestate.
Barringer was not named in the will of testator. Appellant contends that provision was
made for him under the will to the extent of $1 by virtue of a general exclusion clause and
that the will upon its face demonstrates the intent of the testator to omit to provide further for
him.
The facts show that in September, 1901 decedent was married under his then name of
Melvin A. Barringer and that on June 18, 1902 respondent Robert E. Barringer was born of
this marriage in Chicago, Illinois. Shortly after the marriage and prior to respondent's birth,
decedent was confined to the Missouri state penitentiary where he remained until February,
1906. During the period of confinement his then wife secured a divorce. Following his release
he visited his former wife on several occasions and throughout the years had occasional
contacts with his son. The two actually saw each other no more than five or six times, the last
such occasion being in 1929 or 1930. The last contact between the two was by telephone
conversation in 1946.
69 Nev. 204, 207 (1952) In Re Carl Ray
On May 8, 1946 decedent, having established his residence in California and changed his
name to Carl Ray, was married to Ida Angelot Ray. Subsequently the parties adopted a child,
the appellant herein, who at the time of filing petition for probate below was 28 months old.
On April 22, 1949 in Los Angeles, California, at the age of 80 years decedent executed his
last will, describing himself as a resident of Las Vegas, Nevada. On July 21, 1949 he died in
Los Angeles and the will subsequently was admitted to probate in the proceedings below.
The will specifies cash bequests of $6,000 with the residue left in trust for the principal
benefit of the widow and minor child. The document obviously was carefully drawn,
specifying in detail the properties to be included in the trust estate, the powers of the trustees
and the manner in which the income was to be disbursed. Paragraph tenth of the will
provides: If any devisee, legatee or beneficiary under this Will, or any person claiming under
or through any devisee, legatee, or beneficiary, or any other person who, if I died wholly or
partially intestate, would be entitled to share in my estate, shall, in any manner whatsoever,
directly or indirectly, contest this Will or attack, oppose or in any manner seek to impair or
invalidate any provision hereof, or shall, in any manner whatsoever, conspire or cooperate
with any person or persons attempting to do any of the acts or things aforesaid, or shall settle
or compromise directly or indirectly, either in or out of court, with any such contestant, or
shall acquiesce in or fail to oppose such proceedings, or shall endeavor to succeed to any part
of my estate, otherwise than through this Will, then in each of the above mentioned cases I
hereby bequeath to such person or persons the sum of One Dollar ($1.00) only, and all other
bequests, devises and interests in this Will given to such person or persons shall be forfeited
and shall be distributed pro rata among such of my devisees, legatees and beneficiaries as
shall not in any manner have participated in, and as shall have opposed such acts or
proceedings."
69 Nev. 204, 208 (1952) In Re Carl Ray
not in any manner have participated in, and as shall have opposed such acts or proceedings.
In 1 Page On Wills, 967, sec. 526, with reference to the statutory protection of pretermitted
heirs, it is stated: * * * Statutes of this class were originally framed on the theory that a
testator who neither provided for his children, nor expressly indicated his intention not to
provide for them, must have omitted to provide for them through inadvertence; and that his
probable intention could best be enforced by giving the omitted children such share as they
would have taken had testator died intestate. They are thus based on the theory of mistake;
and, in the cases to which they apply, they reverse the general rule that a testator is presumed
to know the contents of his will, and to intend that effect shall be given thereto.
Under the provisions of sec. 9919 N.C.L. two questions are presented for our
consideration: First: whether the will through paragraph tenth has provided for Barringer.
Second: if not, whether the will demonstrates that such omission to provide was intentional.
If either question be answered in the affirmative, then Barringer has failed to establish himself
as a pretermitted heir.
[Headnotes 1, 2]
Upon these two questions authority is in a state of confusion far from helpful. The two
questions themselves frequently are confused and indiscriminately considered. Attempts to
reconcile the many decisions have been made (See: Annotations, 152 A.L.R. 723, 65 A.L.R.
472; but see: 32 Ill.L.R. 1) and are here urged upon us by appellant. However the lack of
consistency with which lines of distinction are drawn by the courts themselves detracts
greatly from the usefulness of the authorities cited to us and, we feel, renders a full discussion
of them of little value to this opinion. We cannot escape the conviction that the widespread
split of authority is due in some part to the varying degrees to which the several courts may
feel impelled to question the wisdom of the statutory theory and presumption of mistake
under present-day conditions; or may regard it as an infringement upon freedom of
testation to be carefully hedged about with safeguards.
69 Nev. 204, 209 (1952) In Re Carl Ray
wisdom of the statutory theory and presumption of mistake under present-day conditions; or
may regard it as an infringement upon freedom of testation to be carefully hedged about with
safeguards. The wisdom of such statutory provisions has been expressly questioned. See: 31
Calif.L.R. 263; 29 Col.L.R. 748. Indeed, it may well be that, assuming a child was truly
forgotten, the statutory provisions are overliberal. In point of fact as opposed to theory, a
child so lightly regarded by the testator and so remotely an object of his bounty as to be
completely forgotten, might not reasonably expect to have received a full intestate share had
he been remembered. The statute may then be said (in the absence of mistake, fraud or undue
influence) to frustrate testamentary intent more frequently than it may be said fairly and truly
to supply it. These considerations, however, would appear to be clearly legislative rather than
judicial. In the absence of apparent testamentary intent it is not within the judicial province to
substitute therefor our own views as to the proprieties and needs of each individual case and
to modify or exclude application of the statutory presumption accordingly.
The nature and weight of the presumption created by our own statute has already been
carefully considered by this court, In re Parrott's Estate, 45 Nev. 318, 330, 203 P. 258, 261.
There it was held that failure to provide for a child raises the presumption that [the]
omission from the will was unintentional. It was stated: Before this presumption can be
overthrown and the contrary intention established in point of law, it must appear from the
face of the will that the intention to omit appellant is expressed therein or implied in language
so strong as to render any other conclusion unreasonable. If the import of the language of the
will is not plain enough to warrant such conclusion, the presumption raised by the law must
prevail * * *. Later the Supreme Court of California, In re Stevens, 83 Cal. 330, 23 P. 379,
was quoted with approval as follows: "We think that the correct rule is that the words of
the will must show, * * * that the testator had the person omitted in his mind, and,
having her so in his mind, had omitted to make any mention of her."
69 Nev. 204, 210 (1952) In Re Carl Ray
We think that the correct rule is that the words of the will must show, * * * that the testator
had the person omitted in his mind, and, having her so in his mind, had omitted to make any
mention of her.
As to the first question: whether paragraph tenth has provided for Barringer, it is the
contention of appellant that it does make provision in the sum of $1; that he falls within the
class of persons there designated; that a bequest to those of a certain class is provision for all
within that class.
[Headnote 3]
Since we are here dealing with a statutory presumption relative to testamentary intent, the
intent to provide must be regarded as an essential element in any provision contemplated by
the statute. It should, then, appear that the testator had his child in mind and by the terms of
the clause in question intended to provide for him. The language of paragraph tenth, however,
shows upon its face that it was not included for dispositive purposes or for the purpose of
making provision for those of any particular class. It was included for the purpose of
protecting the will and the estate against attack. Its use of the language, I hereby bequeath to
such person, does not alter its status in this regard. Before any person under that paragraph
would be entitled to the bequest there provided, he must first comply with the condition
precedent of attacking the will or the estate. Such conditional and nominal bequest,
included in the will for such obvious purpose and without any intent on the part of the testator
to provide for any individual or class, cannot, we feel, be considered any provision
whatsoever. In re Frinchaboy's Estate, (Cal.App.1951) 238 P.2d 592; Wadsworth v. Brigham,
125 Ore. 428, 259 P. 299, 266 P. 875; Grace v. Hildebrandt, 110 Okla. 181, 237 P. 98. We
therefore conclude that there has been an omission to provide for Barringer within the
meaning of sec. 9919, N.C.L. The remaining question is whether it appears that such
omission was intentional.
69 Nev. 204, 211 (1952) In Re Carl Ray
Appellant first contends that the language of paragraph tenth itself shows an intent to omit
to provide for Barringer. Our attention is specifically drawn to the following portion of that
paragraph: If * * * any other person who, if I died wholly or partially intestate, would be
entitled to share in my estate * * * shall endeavor to succeed to any part of my estate,
otherwise than through this will, then * * * I hereby bequeath to such person or persons the
sum of One Dollar only, * * *. It is stated that Barringer is the only person to whom this
language could apply and therefore the testator must have had Barringer in mind in so
providing.
[Headnote 4]
This contention we must reject. Just as this paragraph shows lack of dispositive intent, so
it shows lack of intent to disinherit any particular person or those of any class. If the testator
had anything at all in mind here, it was that someoneanyone at allmight assert rights
against the will or against the estate contrary to the provisions of the will; that the will and the
estate should be protected against the assertion of any such rights. That Barringer falls within
the scope of the protection thus afforded cannot, we feel, demonstrate that the testator had
him personally in mind any more than that he had in mind every other person in the world
against whose assertion of rights he had provided.
Appellant contends that a distinction is recognized under statutes similar to ours between a
bare no-contest clause and a general exclusion clause; that under such distinction the
latter is recognized as showing intent to disinherit every person falling within its provisions.
We must concede that certain authorities have recognized such a distinction although, as we
have already indicated, it is far from clearly or consistently drawn. Appellant then asserts that
paragraph tenth is more than a bare no-contest clause since it protects the estate not only
against a contest of the will, but against the assertion of any rights to succeed to the estate
otherwise than through the will; that since this paragraph is more than a bare no-contest
clause it must be regarded in the same light as an exclusion clause.
69 Nev. 204, 212 (1952) In Re Carl Ray
estate otherwise than through the will; that since this paragraph is more than a bare no-contest
clause it must be regarded in the same light as an exclusion clause. We cannot concur in this
reasoning. (But see: In re Dixon's Estate, infra.)
[Headnote 5]
What we seek to find in the will is not the extent of protection or exclusion afforded, but
rather an indication of testamentary intent to disinherit. The so-called exclusion clause in its
ordinary limited form may be said reasonably to demonstrate such an intent, whether it be by
nominal provision (I hereby give and bequeath unto each of my heirs at law not elsewhere
herein mentioned or provided for, the sum of $1; In re Benolken's Estate, 122 Mont. 425,
205 P.2d 1141, 1142); or by expressed intent to disinherit (I have, except as otherwise in this
will specified, intentionally and with full knowledge, omitted to provide for my heirs living at
the time of my demise; In re Lombard's Estate, 16 Cal. App.2d 526, 60 P.2d 1000, 1001.) In
either case it may well be said that the expression used demonstrates that the testator had in
mind the existence of members of the designated class. No such having in mind can be
assumed from the language of paragraph tenth. That paragraph is purely a general protective
device as consistent with pretermission as with remembrance. The scope of the protection
afforded reflects simply the degree of care used in preparation of the will, the clear intent
being to protect against everyone. A general exclusion of all persons not mentioned is not
sufficient to show that a specific omission was intentional. In re Price's Estate, 56 Cal.App.2d
335, 132 P.2d 485. So the testator here cannot be said to have had in mind the existence of
members of any particular class against whom such protection was afforded. Certainly it
cannot be said that the expression of testamentary intent to disinherit (if such may be found)
is strong or plain enough to meet the requirements of In re Parrott's Estate, supra.
69 Nev. 204, 213 (1952) In Re Carl Ray
Appellant relies heavily upon the case of In re Dixon's Estate, 28 Cal.App.2d 598, 83 P.2d
98. That case dealt with a clause identical in language with our paragraph tenth and squarely
supports appellant's position. In the light of subsequent California decisions, however, we do
not feel that it can be said authoritatively to reflect the law of that state today. See: In re
Price's Estate, supra; In re Frinchaboy's Estate, supra.
[Headnote 6]
Further pressing upon us In re Dixon's Estate, supra, appellant contends that the testator,
having drawn and executed his will in California, by using the identical language under
consideration in that California case must be considered as having intended it to have the very
effect there given it. We do not feel, however, that the source of the protective language used
is of any aid in determining whether the testator had in mind the existence of a son. The fact
that obviously he must have intended the clause to be effective is not sufficient in the absence
of any indication of remembrance.
We conclude that paragraph tenth does not demonstrate that, upon the execution of his
will, the testator had Barringer in mind and intended not to provide for him.
Appellant finally contends that the will, when considered in its entirety, demonstrates an
intention to disinherit Barringer. Our attention is directed to the detail with which the will
was drawn and with which the testator's scheme of distribution was expressed; to the care
taken by him to safeguard the interests of his widow and minor child and to assure that the
estate remained intact. Our attention is directed to paragraph first of the will, reading as
follows: I declare that I am a married man and that my wife is IDA ANGELOT RAY: that at
the time of the making of this Will I have one child living, a girl, namely, CARLITA
NANCY RAY, who is approximately twenty-five (25) months of age.
69 Nev. 204, 214 (1952) In Re Carl Ray
[Headnote 7]
The holding of this court, In re Parrott's Estate, supra, is clear to the effect that these
matters can have no bearing upon the question, and are entirely consistent with the
presumption raised by the statute that [the child] was unintentionally omitted from the will.
Indeed, considering the care with which the will was drawn and the infrequent contacts
between the testator and his son, the statements of paragraph first would seem to strengthen
rather than weaken the statutory presumption that Barringer had been forgotten.
Judgment and order of the trial court are affirmed with costs.
July 17, 1952.
Per Curiam:
Rehearing denied.
____________
69 Nev. 214, 214 (1952) McCormick v. District Court
JEAN MULLANEY McCORMICK, DONNIE BUSEY STEPHENS, LEO A. BOURKE,
FRANCES L. BOURKE, ASH FORK LIVESTOCK COMPANY, a Corporation, as
Successor in Interest to CLAYTON E. GUNN, and HENRY McCLEARY TIMBER
COMPANY, a Corporation, Petitioners, v. THE SIXTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Humboldt, and MERWYN H.
BROWN, Judge of Said Court, Respondents.
No. 3692
June 27, 1952. 246 P.2d 805.
Original petition in prohibition by Jean Mullaney McCormick and others against the Sixth
Judicial District Court of the State of Nevada, in and for the county of Humboldt, and the
Judge of such court, attacking constitutionality of 1951 amendatory statute making services
of state engineer available to district courts for purpose of administering distribution of
waters under prior final decree in equity suit adjudicating rights of respective water
users.
services of state engineer available to district courts for purpose of administering distribution
of waters under prior final decree in equity suit adjudicating rights of respective water users.
The Supreme Court, Badt, C. J., held that such statute was not unconstitutional.
Petition denied.
John C. Bartlett, of Reno, for Petitioners Jean Mullaney McCormick and Donnie Busey
Stephens.
James A. Callahan, of Winnemucca, and John S. Halley, of Reno, for Petitioners Leo A.
Bourke and Frances L. Bourke.
Sidney W. Robinson, of Reno, for Petitioner Ash Fork Livestock Company.
Kearney & Adams, of Reno, for Petitioner Henry McCleary Timber Company.
Sanford A. Bunce, of Lovelock, and J. D. Skeen, of Salt Lake City, Utah, for Respondents.
W. T. Mathews, Attorney General of Nevada, Amicus Curiae.
1. Statutes.
An amendatory statute is not invalid, although it purports to amend a statute which had previously been
amended or which had for any reason been held invalid.
2. Waters and Water Courses.
A natural and unobjectionable method of curing alleged defect in 1949 amendment to water law that it
failed to provide for notice was by an amendment rewriting the section so as to include a requirement for
notice. St.1913, c. 140, sec. 46 1/2, as added by St.1949, c. 83, and as amended by St.1951, c. 121.
3. Statutes.
Alleged invalidity of prior amendments of water law would not affect validity of 1951 amendment of
such law. St.1913, c. 140, sec. 46 1/2, as added by St.1949, c. 83, and as amended by St.1951, c. 121.
4. Statutes.
The 1951 amendment to water law does not violate constitutional requirements relating to title and
subject matter of legislation. St.1913, c. 140, sec. 46 1/2, as added by St.1949, c. 83, and as amended by
St.1951, c. 121; Const. art. 4, sec. 17.
5. Statutes.
The 1951 amendment to water law is not invalid because entire water law was not reingrossed, though
such amendment related to the entire act, rather than any specific section. St.1913, c. 140, sec. 46 1/2, as
added by St.1949, c. 83, and as amended by St.1951, c. 121; Const. art. 4, sec. 17.
The district court sitting as a court of equity has full and complete authority to see that its decree
determining water rights is enforced through employment of water master, and, if available for the purpose,
through the services of the state engineer's office. St.1913, c. 140, sec. 46 1/2, as added by St.1949, c. 83,
and as amended by St.1951, c. 121.
7. Constitutional Law; Waters and Water Courses.
The 1951 amendment to water laws making services of state engineer available to district court for
purpose of administering distribution of waters under prior final decree in equity suit adjudicating rights of
respective water users was not invalid on ground that it amounted to a modification of 1919 decree long
after the court had lost jurisdiction to modify such decree. St.1913, c. 140, sec. 46 1/2, as added by
St.1949, c. 83, and as amended by St.1951, c. 121; Const. art. 6, sec. 6.
Fact that 1951 amendment to water laws provides for additional enforcement remedy in that it makes
services of state engineer available for purpose of administering distribution of waters, though such right
did not exist at time of decree, does not invalidate such amendment. St.1913, c. 140, sec. 46 1/2, as added
by St.1949, c. 83, and as amended by St.1951, c. 121; Const. art. 6, sec. 6.
9. Constitutional Law; Waters and Water Courses.
Assessment of costs of distribution of water and administration could have been included in original
decree adjudicating rights to Quinn River, and the court could have made further orders for enforcement of
its decree, and therefore subsequent 1951 amendment to water laws was not invalid because it provided for
imposition upon parties to original decree of costs, expenses and obligations and duties not provided for by
such decree and was not invalid as an attempt on part of legislature to exercise judicial power in connection
with modification of such decree. St.1913, c. 140, sec. 46 1/2, as added by St.1949, c. 83, and as amended
by St. 1951, c. 121.
Administration by state engineer of water rights under prior decree is only an additional and cumulative
means of enforcement of such decree, to be adopted by court only if it finds such
methods to be to best interests of water users, and therefore statute providing for
such administration was not objectionable as abrogating, modifying or curtailing
decree adjudicating water rights prior to enactment of such statute.
enforcement of such decree, to be adopted by court only if it finds such methods to be to best interests of
water users, and therefore statute providing for such administration was not objectionable as abrogating,
modifying or curtailing decree adjudicating water rights prior to enactment of such statute. St.1913, c. 140,
sec. 46 1/2, as added by St.1949, c. 83, and as amended by St.1951, c. 121.
Objection to 1951 amendatory statute, providing for administration of water rights under prior decree by
state engineer, that the administration of the decree by the state engineer vested in such officer power to
construe the decree was too general for consideration by the supreme court. St.1913, c. 140, sec. 46 1/2, as
added by St.1949, c. 83, and as amended by St.1951, c. 121.
OPINION
This proceeding attacks the constitutionality of an act of the state legislature making the
services of the state engineer available to the district courts of the state for the purpose of
administering the distribution of the waters of a stream or stream system under a prior final
decree in an equity suit adjudicating the rights of the respective water users. The situation is
separate and distinct from the administration of the waters of a stream or stream system under
the provisions of sections 18 to 51 of the water law of 1913, 192, as amended. That part of
the water law has been before this court on numerous occasions, both as originally passed and
as amended by succeeding legislatures. It has been analyzed and passed upon section by
section.
1
The waters of the Quinn River and its tributaries were not adjudicated under the
1913 water law as amended.

____________________

1
Ormsby County v. Kearney, 37 Nev. 314 (1914), 142 P. 803; Bergeman v. Kearney (D.C.Nev.), 241 F. 884
(1917); Vineyard Land & Stock Co. v. District Court, 42 Nev. 1 (1918), 171 P. 166; In re Waters of Barber
Creek, 43 Nev. 403 (1920), 182 P. 925; Pitt v. Scrugham, 44 Nev. 418 (1921), 195 P. 1101; Scossa v. Church,
43 Nev. 403, 182 P. 925; Id., 43 Nev. 407, 187 P. 1004; Id., 1923, 46 Nev. 254, 205 P. 518, 210 P. 563;
Humboldt Land & Cattle Co. v. Dist. Court, 47 Nev. 396 (1924), 224 P. 612; In re Water Rights in Humboldt
River, 49 Nev. 357 (1926), 246 P. 692; Pacific Live Stock Co. v. Ellison R. Co., 52 Nev. 279 (1930), 286 P.
120; Mexican Dam & Ditch Co. v. District Court, 52 Nev. 426 (1930), 289 P. 393; Pacific Live Stock Co. v.
Malone, 53 Nev. 118 (1931), 294 P. 538; Ruddell v.
The waters of the Quinn River and its tributaries were not adjudicated under the 1913
water law as amended. On the contrary, the adjudication of that stream was made in an equity
suit by a judgment entered in 1919. Pacific Live Stock Co. v. Ellison Ranching Co., 52 Nev.
279, 286 P. 120. For a brief history of the litigation, see McCormick v. District Court, 67
Nev. 318, 218 P.2d 939.
The act of the legislature in question in this proceeding is contained in Stats. 1951, p. 158,
chap. 121, and is entitled:
An Act to amend an act entitled An act to provide a water law for the state of Nevada;
providing a system of state control; creating the office of the state engineer and other offices
connected with the appropriation, distribution, and use of water, prescribing the duties and
powers of the state engineer and other officers and fixing their compensation; prescribing the
duties of water users and providing penalties for failure to perform such duties; providing for
the appointment of water commissioners, defining their duties and fixing their compensation;
providing for a fee system, for the certification of records, and an official seal for the state
engineer's office; providing that the district court may appoint the state engineer and his
assistants officers of the court to administer final water decrees in certain cases; providing for
an appropriation to carry out the provisions of this act; and other matters properly connected
therewith, and to repeal all acts and parts of acts and certain acts in conflict with this act,'
approved March 22, 1913, as amended.
____________________
District Court, 54 Nev. 363 (1933), 17 P.2d 693; In re McGregor, 56 Nev. 407, 412 (1936), 48 P.2d 418, 55
P.2d 10; In re Silver Creek, 57 Nev. 232 (1936), 61 P.2d 987; Jahn v. District Court, 58 Nev. 204 (1937), 73
P.2d 499; Carpenter v. District Court, 59 Nev. 42 (1937), 73 P.2d 1310, 84 P.2d 489; In re Waters of Manse
Spring, 60 Nev. 280 (1940), 108 P.2d 311; Kent v. Smith, 62 Nev. 30 (1943), 140 P.2d 357; In re Bassett Creek,
62 Nev. 456 (1944), 147 P.2d 1022, 155 P.2d 324; Application of Filippini, 66 Nev. 17 (1949), 202 P.2d 535;
McCormick v. District Court, 67 Nev. 318 (1950), 218 P.2d 939.
Under section 1 of this act, section 46 1/2 of the water law first provides as follows:
(a) On any stream in this state on which the water rights have been adjudicated and
determined and the final decree therefor entered, as between all persons who claimed the right
to the use of the waters of such stream, in a suit brought in the district court having
jurisdiction of said stream and in which said suit the said adjudication and determination was
not had in the manner provided in sections 18 to 51, inclusive of this act, and thereafter one
or more of the parties as users of such adjudicated and determined rights and/or their
successors in interest desire that the state engineer take charge of the diversions and
distribution of such rights and administer them in conformity with the said final decree of the
court, they may petition said district court which entered such decree requesting such
administration.
It then provides for notice of the filing of such petition, the issuance of an order to show
cause, the fixing of a date for the hearing, matters of service, etc. It provides for the filing of
objections whereupon the petition, deemed in the nature of a complaint, and the objections
constitute the pleadings. The state engineer is required to be notified and to attend the
hearing. The practice in civil cases is made to apply insofar as consistent with the summary
character of the proceedings. Prior to final determination the court may direct the state
engineer to make a hydrographic survey and render a written report, with such maps and other
data as will enable the court to determine whether or not administration of such water rights
by the state engineer would be for the best interests of the water users. If the court so
determine, it shall direct the state engineer to distribute such waters in strict accordance with
the said decree and thereafter the distribution of the water is under the supervision and control
of the district court. In such distribution and administration the state engineer, his deputies,
assistants and water commissioners are deemed officers of the court only and subject
only to its supervision and control.
engineer, his deputies, assistants and water commissioners are deemed officers of the court
only and subject only to its supervision and control. Appeals may be taken to this court.
Subdivisions (b) and (c) of section 46 1/2 as amended have to do with the assessment and
collection of the costs of such administration.
The 1951 amendment is first asserted to be unconstitutional and void because it purports
to amend an act of 1949, which in turn purported to amend an act of 1947. The amendment of
1947, Stats. 1947, c. 159, p. 518, amended the 1913 water law by adding the said section 46
1/2 in its original form. Petitioners undertake to establish that such section 46 1/2 in its
original form was unconstitutional in that it did not provide for notice to the other parties to
the equity decree and that the title of the act did not satisfy constitutional requirements.
Premised upon the conclusion that the 1947 act was thus void and of no effect, as not
constituting due process and as bearing a defective title, petitioners then contend that as the
1947 act was a nullity, there was nothing to amend, and that accordingly the 1949
amendment, Stats. 1949, 104, was likewise a nullity, and that for the same reason the 1951
amendment was also void.
[Headnotes 1-3]
The only act in question here is the act of 1951. In the 1951 enactment of section 46 1/2 it
must be said that the legislature (to quote the language used by this court in Worthington v.
District Court, 37 Nev. 212, 142 P. 230, 234, L.R.A. 1916A, 696), expressed its purpose
intelligently and provided fully upon the subject. Recognizing that there was a conflict of
authority upon the subject, this court adopted what it considered the weight of authority and
the better opinion, namely, that an amendatory statute is not invalid, although it purports to
amend a statute which had previously been amended or for any reason had been held invalid.
To meet the attack on the 1949 amendment that the same violated the due process clause by
reason of its failure to provide for notice {we are only advised by counsel that such attack
was made in the district court in an abortive proceeding under the 1949 act), a natural
and unobjectionable method of curing this defect was by an amendment rewriting the
section so as to include a requirement for notice, thus obviating the defect, if any.
violated the due process clause by reason of its failure to provide for notice (we are only
advised by counsel that such attack was made in the district court in an abortive proceeding
under the 1949 act), a natural and unobjectionable method of curing this defect was by an
amendment rewriting the section so as to include a requirement for notice, thus obviating the
defect, if any. State v. Silver Bow Refining Co., 78 Mont. 1, 252 P. 301. We conclude that the
attack on the 1947 amendment of the water law creating section 46 1/2 cannot be used in
attacking the 1951 statute if the last named is otherwise valid. Worthington v. District Court,
supra.
[Headnote 4]
It is next insisted that the 1951 amendment violates the constitutional requirements of
section 17, article IV, reading as follows:
Sec. 17. Each law enacted by the legislature shall embrace but one subject, and matter
properly connected therewith, which subject shall be briefly expressed in the title; and no law
shall be revised or amended by reference to its title only; but in such case, the act as revised,
or section as amended, shall be reenacted and published at length.
We have above quoted in full the title of the 1951 act which in turn quotes the title of the
1913 water law for the purpose, among other things, of providing a system of state control
and further prescribing the duties and powers of the state engineer and further providing
that the district court may appoint the state engineer and his assistants officers of the court to
administer final water decrees in certain cases. The last provision was enacted as an
amendment to the title of the 1947 act by the 1949 legislature. The 1951 legislature adopted
the title as amended in 1949. With our rejection of the first attack on the 1951 statute, based
upon the alleged invalidity of the 1947 and 1949 amendments, the second ground of attack
must likewise fail. Worthington v. District Court, supra; State v. Payne, 53 Nev. 193
District Court, supra; State v. Payne, 53 Nev. 193, 295 P. 770; Tonopah & Goldfield R. R.
Co. v. Nevada-California Transportation Co., 58 Nev. 234, 75 P.2d 727.
[Headnote 5]
It is next insisted that the 1951 act is invalid because the legislature could add section 46
1/2 in no other way than by rewriting the entire act; that as section 46 1/2 is an amendment of
the entire water law and not of any specific section, it was necessary, for a valid adoption of
section 46 1/2, to re-engross the entire 1913 water law. Four Nevada cases are cited to
support this contention. They do not so hold, although some early Louisiana and Indiana
cases adopted this view. Consistent legislative practice in almost all of the states, including
Nevada, has been to amend the original act, or the original act as amended, by rewriting one
or more of its sections, and this practice has had the overwhelming approval of the courts.
State v. Lawson, 40 Wash. 455, 82 P. 750; 1 Sutherland, Statutory Construction (3d Ed.
Horack) 406, sec. 1928, n. 6.
Petitioner's main contention however is that the Quinn River decree became final upon its
entry by the district court in 1919, that it contained no clauses reserving jurisdiction, that the
court has long since lost jurisdiction to modify the same and that the effect of the present
proceedings, under authority of section 46 1/2 as adopted in 1951, would amount to a
substantial modification of the decree.
Under section 6 of article VI of the state constitution, The district courts in the several
judicial districts of this state shall have original jurisdiction in all cases in equity; * * * The
district courts and the judges thereof shall have power to issue * * * all other writs proper and
necessary to the complete exercise of their jurisdiction; * * *. The original action of Pacific
Live Stock Co. v. Ellison Ranching Co., et al., 52 Nev. 279, 286 P. 120, was a suit in equity
to restrain the defendants from diverting water from the Quinn River in violation of the
asserted rights of the plaintiff.
River in violation of the asserted rights of the plaintiff. All of the water users on the stream
system were eventually made parties and each asserted his own rights and sought injunctive
relief against encroachment by the other parties to the action. Throughout it was regarded as a
proceeding in equity. The final decree is generally referred to as an equity decree as
distinguished from a decree made under the provisions of the general adjudication provisions
of the water law. This decree fixed the rights and priorities of all of the users on the stream
system, with appropriate injunctive provisions against violation of such rights. It contained no
provisions for an appointment of a watermaster or a commissioner or any other officer to
administer these rights. We are not informed whether any of the parties to the litigation
requested the inclusion of any such provisions. Perhaps neither the court nor any of the
parties considered it necessary. It is possible that it was considered that after the rights of the
parties had been fixed, they could themselves conform with the decree in the exercise of their
rights without supervision or administration by an officer of the court. In the present
proceeding no one has suggested that the appointment of a watermaster could not have been
properly incorporated in the decree. Such course was in fact definitely approved in
Montezuma Canal Co. v. Smithville Canal Co., 218 U.S. 371, 31 S.Ct. 67, 54 L.Ed. 1074,
and in Silkey v. Tiegs, 51 Idaho 344, 5 P.2d 1049, and the cases therein cited. Petitioners
insist however that to do so at the present time is to modify the decree after the court has lost
jurisdiction to make any modification.
It is said in 30 C.J.S. 1014, Equity, sec. 616, subtitle Enforcement and Performance of
Decrees: The jurisdiction of a court of equity to enforce its decrees is coextensive with its
jurisdiction to determine the rights of the parties, and it has power to enforce its decrees as a
necessary incident to its jurisdiction. Except where the decree is self-executing, jurisdiction of
the cause continues for this purpose, * * *.
of the cause continues for this purpose, * * *. A decree may be final as to the main equities of
the parties to the suit but it is not final as to proceedings for enforcement, and although it is so
far final as to be appealable, yet the court may make other orders or decrees to carry it into
effect. * * * The costs of enforcement may be distributed according to the equities of the
case.
In Butler County v. Pittsburgh H., B. & N. C. Railway Co., 298 Pa. 347, 148 A. 504, the
trial court had in an original equity suit entered a judgment compelling Butler county to
permit the railway company to cross a certain bridge with its cars and equipment on condition
that the company would protect and preserve the structure and make all ordinary repairs. A
number of years later the county petitioned the court for mandamus to compel the railway
company to comply with the conditions and requirements of the original decree. As against
objections to the jurisdiction, the Supreme Court of Pennsylvania held that the power of a
court of equity to enforce its own decrees is a necessary incident to the jurisdiction of the
court; that without such power a decree would in many cases be useless; that the powers of
equity to enforce a decree rest largely in the discretion of the court; that although the
customary processes were by mandatory injunction, attachment for contempt, writ of
sequestration or writ of execution, the court might designate an individual to perform its
order. Relying on Com. ex rel. Lieberum v. Lewis, 253 Pa. 175, 98 A. 31, and Winton's
Appeal, 97 Pa. 385, the court definitely held that the jurisdiction of the court in equity
continues for the purpose of enforcing the decree.
In Huber v. First National Bank, 251 Ill.App. 36, the jurisdiction of an equity court to enter
subsequent orders to enforce its original decree, although the original decree contained no
reservation of jurisdiction, was considered at length. The contention was made there, as in the
instant case, that the subsequent enforcement order or supplemental decree changed and
modified the original decree of foreclosure.
order or supplemental decree changed and modified the original decree of foreclosure.
Referring to the original decree, the court said: All of the rights of property in either party
were fixed. The supplemental decree in no manner changed or modified the judicial rights of
the parties. It did add to the former decree further specific terms as to the enforcement of the
decree, and that was perfectly proper. * * * While usually a court of equity has no power,
after final decree, to amend, modify or alter the principles of the decree, the generally adopted
rule is that it retains and possesses the power to control the time and manner of the execution
of its judgment and decrees. * * * [This] is elementary.
In Winton's Appeal, 97 Pa. 385, a decree in equity had been entered defining the rights of
the parties. Upon a subsequent petition to the equity court for an order to show cause why
certain further orders should not be made for the enforcement of the decree, it was, as here,
urged that the court had lost jurisdiction. The Supreme Court of Pennsylvania characterized
the supplemental petition as one strictly in aid of the decree and not seeking to change it or to
modify the principles upon which it was pronounced. As against the contention of the
appellant that the respondent was restricted to other remedies, the court said: The plaintiff
has mistaken the powers of a court of equity. It is not so helpless as he imagines. * * * Its
remedies are plastic, and may be moulded to meet the exigencies of the case.
[Headnote 6]
The employment of the services of a watermaster in administering the distribution of the
waters of a stream system under fixed rights and priorities is no stranger to the water users of
a number of the stream systems in this state nor to Nevada lawyers and judges. A simple
decree involving two appropriators who have diverted all of the waters of a small stream
could undoubtedly be enforced by contempt proceedings. A great variety of situations would
arise between such simple decree and one involving several hundred appropriators.
situations would arise between such simple decree and one involving several hundred
appropriators. Enforcement in such case might manifestly require other means. We think it
abundantly clear that the district court sitting as a court of equity had full and complete
authority, if it felt that the circumstances or the exigencies of the case warranted, to see that
its decree was enforced through the employment of a watermaster and, if available for the
purpose, through the services of the state engineer's office. By section 46 1/2 of the water law,
as amended in 1951, the legislature made available to the court in the case of such equity
decrees a new officer, namely, the state engineer. Prior to such act, there was no statutory
authority under which the court could have directed the state engineer to administer the
decree. Pacific Live Stock Co. v. Malone, 53 Nev. 118, 294 P. 538. The 1951 statute making
that officer available to the court, left it entirely within the discretion of the court whether it
should avail itself of his services, and only if one or more of the parties requested such
procedure and the court thought it to be for the best interests of the water users after notice
and hearing on such petition.
[Headnotes 7, 8]
It is said however that this is a modification of the decree itself; that in such administration
the state engineer could shut off the water of any water user believed to be diverting more
than specified in the decree; that he may order installation of headgates and measuring
devices or may designate the particular land upon which the water is to be used, though no
description is contained in the decree;
2
that he may direct that water be used out of one
particular ditch where numerous ditches have been used since the decree, and that an
aggrieved party would be without remedy other than to institute proceedings in the district
court under the provisions of sec. 75 of the water law. The complete answer to this
contention is that precisely the same criticism would have attached to the appointment of
a watermaster in the decree itself, with authority to such watermaster to administer the
distribution of the water in accordance with the rights, priorities, acreages, extent of
diversions in cubic feet per second, etc.
____________________

2
The decree itself is not under attack for this or any other reason.
contention is that precisely the same criticism would have attached to the appointment of a
watermaster in the decree itself, with authority to such watermaster to administer the
distribution of the water in accordance with the rights, priorities, acreages, extent of
diversions in cubic feet per second, etc. In neither case does a modification of the final
judgment result. In both cases the administrator is subject to the supervision and control of
the court. To limit the court to contempt proceedings or further equitable relief to enforce its
decree adjudicating the rights of 42 water users with 72 appropriations from the Quinn River
system involving its two main branches and over a dozen tributaries throughout varying
amounts of water flow in each season and varying from season to season, would unduly
restrict its power and authority to enforce its decree. Petitioners insist that as this additional
enforcement remedy did not exist at the time their rights and priorities were established under
the decree, those rights are infringed because the court does not remain restricted to
enforcement through contempt proceedings. This however is simply to insist upon a vested
right to have, or to resist, some particular form of remedy, and is without merit. Vineyard
Land & Stock Co. v. District Court, 42 Nev. 1, 171 P. 166; Humboldt Land & Cattle Co. v.
District Court, 47 Nev. 396, 224 P. 612; Crane v. Hahlo, 258 U.S. 142, 42 S.Ct. 214, 66
L.Ed. 514.
This court has often reiterated that the state has an interest in the orderly and economical
distribution and use of its public waters. Its legislature has now provided an additional
remedy whereunder the individual water user (the owner of the usufruct) and the district
courts sitting as courts of equity, may under certain circumstances avail themselves of the
services of the state engineer, a trained administrator, in administering equity decrees such as
the one here involved. It is we think another step toward its goal of bringing about a peaceful
and orderly distribution of the waters of the state to the persons whose rights of diversion
and use have been duly adjudicated by the courts. "In view of the conditions presented, it
can readily be understood why the enactment of a special statutory proceeding was
imperative, not only to the highest development of our state, but also to the proper
supervision of the water of our stream systems."
state to the persons whose rights of diversion and use have been duly adjudicated by the
courts. In view of the conditions presented, it can readily be understood why the enactment
of a special statutory proceeding was imperative, not only to the highest development of our
state, but also to the proper supervision of the water of our stream systems. In re Water
Rights in Humboldt River, 49 Nev. 357, 246 P. 692, 694. See, also: Application of Filippini,
66 Nev. 17, 202 P.2d 535.
Petitioners express the fear that administration by the state engineer will only entail more
frequent and costlier court appearances, and advance the thought that the history of
administrative tribunals indicates an increase in litigation growing out of their administration.
We think that we may rely on the district courts for prompt and effective correction of any
harsh, arbitrary and unwarranted acts of the state engineer in the administration of equity
decrees adjudicating water rights. See Jahn v. District Court, 58 Nev. 204, 73 P.2d 499. Even
contempt proceedings initiated by him would have to be supported by a showing that he was
distributing the water in accordance with the decree. State ex rel. Hinckley v. District Court,
53 Nev. 343, 1 P.2d 105.
[Headnote 9]
Petitioners also contend that section 46 1/2, as created by the 1951 amendment, seeks to
take away from petitioners rights vested in them under the original Quinn River decree
entered in 1919 to the extent that the legislature has sought to impose upon parties to said
original judgment costs, expenses, obligations and duties not provided for by said judgment.
* * * and [is] an attempt upon the part of the legislature to exercise judicial power in
connection with the modification of said final judgment. This contention is without merit.
As the assessment of costs of distribution and administration would have been entirely proper
in the original decree (Montezuma Canal Co. v. Smithville Canal Co., 218 U.S. 371, 31 S.Ct.
67, 54 L.Ed. 1074) and as the equity court was not foreclosed from making further orders
for the enforcement of its decree, the proportionate bearing of the costs by the parties
benefiting by the administration is manifestly proper.
equity court was not foreclosed from making further orders for the enforcement of its decree,
the proportionate bearing of the costs by the parties benefiting by the administration is
manifestly proper.
[Headnote 10]
Petitioners contend that the right of the district court to enforce the Quinn River decree by
contempt proceedings, as upheld by this court in McCormick v. District Court, 67 Nev. 318,
218 P.2d 939, would be abrogated, modified or curtailed by suffering the administration to be
had by the state engineer. Administration under section 46 1/2 however is only an additional
and cumulative means of enforcement, to be adopted by the court only if it finds such
methods to be to the best interests of the water users. The objection made is without any
convincing force.
[Headnote 11]
It is insisted however that the administration of the decree by the state engineer vests in
that officer power to construe the decree. Petitioners do not amplify their point, nor do they
call to our attention any provisions of the decree which are ambiguous, conflicting or
suggestive of the necessity for construction or interpretation. An attack in language of such
general nature does not throw upon the court the burden of examining the decree in detail to
ascertain whether the arrow may find its mark in any specific provision.
Petitioners attack section 46 1/2 as vesting original judicial powers in the state engineer
and appellate powers in the district court, contrary to the provisions of our constitution. This
they attempt to support by a discussion of various sections of the act but without reference to
the many cases reaching this court in which a similar attack has been considered, especially
after the 1913 act was amended in 1915 to cure the objections found in the opinions of the
majority of this court in Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803. This question
was put to rest by Bergman v. Kearney, 241 F.
241 F. 884, and Vineyard Land & Stock Co. v. District Court, 42 Nev. 1, 171 P. 166, in
which the point was considered in extenso.
The petition for a writ of prohibition is denied and the proceedings dismissed.
____________
69 Nev. 230, 230 (1952) Waite v. Burgess
VERN R. WAITE, Appellant, v. HOWARD
BURGESS, Respondent.
No. 3707
July 3, 1952. 245 P.2d 994.
Motion to dismiss appeal from the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge, department No. 2.
Action between Vern R. Waite and Howard Burgess. From a judgment adverse to Vern R.
Waite, he appealed, and Howard Burgess moved to dismiss the appeal for lack of
undertaking. The Supreme Court, Merrill, J., held that statute providing that adverse party
may except to sufficiency of sureties of appellant within five days after filing of undertaking,
and unless they or other sureties justify before judge of court below or clerk, within five days
thereafter, on notice to adverse party, to amounts stated in their affidavits, appeal shall be
regarded as if no such undertaking had been given, is mandatory only with respect to
individual action required, and in so far as statute relates to judicial functions, the statute is
directory only, and appeal will not be dismissed for lack of undertaking because judge is
unable to complete the justification within five days.
Motion denied.
See also 69 Nev. ......, 250 P.2d 919.
Geo. E. Franklin, Jr., of Las Vegas, for Appellant.
Hawkins, Cannon and Coulthard, of Las Vegas, for Respondent.
Legislation undertaking to require judicial action within fixed periods of time is an unconstitutional
legislative interference with judicial functions. Const. art. 3, sec. 1.
Statute providing that adverse party may except to sufficiency of sureties of appellant within five days
after filing of undertaking, and unless they or other sureties justify before judge of court below, or clerk,
within five days thereafter, on notice to adverse party, to amounts stated in their affidavits, appeal shall be
regarded as if no such undertaking had been given, is mandatory only with respect to individual action
required, and in so far as statute relates to judicial functions, the statute is directory only, and appeal will
not be dismissed for lack of undertaking because judge is unable to complete the justification within five
days. N.C.L.1929, sec. 9032; N.C.L.1931-1941 Supp., sec. 9385.74; Const. art. 3, sec. 1.
Where respondent on March 4, duly served and filed notice of motion for justification of appellant's
sureties, and following day counsel for appellant appeared before trial judge and requested that time be
fixed for such justification, and on March 7, the matter was brought up on law and motion calendar and
was set by trial judge for March 14, which was the first available date on calendar, respondent's motion to
dismiss appeal for lack of undertaking because more than five days elapsed before sureties justified, would
be denied, since it could not be said that sureties themselves failed to justify within five days. N.C.L.1929,
sec. 9032; N.C.L.1931-1941 Supp., sec. 9385.74; Const. art. 3, sec. 1.
OPINION
This is a motion to dismiss this appeal for lack of undertaking. The record discloses that
after the taking of the appeal by the serving and filing of notice and undertaking (with two
individuals serving as sureties), respondent on March 4, 1952 duly served and filed notice of
motion for justification of sureties. The following day counsel for appellant appeared before
the trial judge and requested that a time be fixed for such justification. The trial judge
directed that the matter be brought up on the law and motion calendar. On March 7, 1952 the
matter was brought up on law and motion calendar and was set by the trial judge for March
14, 1952, "said date being the first available date on the calendar of said Department 2 of
the Eighth Judicial District Court."
calendar and was set by the trial judge for March 14, 1952, said date being the first available
date on the calendar of said Department 2 of the Eighth Judicial District Court. On March
14, 1952 the sureties appeared and gave testimony and were held justified by the trial judge.
Respondent contends that justification was not accomplished within the five-day period
specified by law and that the result is as though no undertaking at all had been given.
Sec. 9385.74, N.C.L.1929, Supp. 1931-1941, provides in part as follows: The adverse
party may, however, except to the sufficiency of the sureties within five days after the filing
of the undertaking, and, unless they or other sureties justify before the judge of the court
below, or clerk, within five days thereafter, upon notice to the adverse party, to the amounts
stated in their affidavits, the appeal shall be regarded as if no such undertaking had been
given; * * *.
Sec. 9032, N.C.L.1929, provides: In all cases not otherwise provided for in this act,
where sureties are required to justify, they shall appear before the officer or person authorized
to take the justification, and may be examined under oath by such officer or person and the
adverse party, touching their qualifications as sureties, which examination shall be reduced to
writing and subscribed by the sureties if required. If, upon such examination, it shall appear to
such officer or person that said sureties, or either of them, have the necessary qualifications of
such, he shall so indorse upon the statement, and cause the same to be filed, and thereupon
the justification shall be complete.
The statutes contemplate that justification shall be accomplished by a combination of
individual and judicial action: action of the sureties in presenting themselves to the judge or
officer for examination; action of the judge or officer in determining that such examination
showed them to suffice as sureties. From a reading of the statutes it may be argued that
justification must be completed and the certificate thereof endorsed, all prior to the
expiration of the five-day period.
completed and the certificate thereof endorsed, all prior to the expiration of the five-day
period.
We cannot, however, regard this as the proper construction. As the facts in this case
themselves suggest, from such a construction it would follow that compliance with the
statutory provisions might well require a judge to set aside the presentation and consideration
of pending matters deemed by him more urgent in nature; to refuse through lack of time to
investigate evidence deemed pertinent; to fail to give to the determination of justification
itself the extent of consideration he might feel it warranted. In the light of our constitutional
division of the powers of government, sec. 51, N.C.L.1929, Const. art. 3, sec. 1, it is our view
that such an invasion of the sphere of the judicial department could not have been
contemplated by the legislature.
[Headnote 1]
It is recognized that legislation undertaking to require judicial action within fixed periods
of time is an unconstitutional legislative interference with judicial functions. State v. Johnson,
224 Ind. 540, 69 N.E.2d 592, 168 A.L.R. 1118; Atchison, Topeka & Santa Fe Ry. Co. v.
Long, 122 Okla. 86, 251 P. 486; Schario v. State, 105 Ohio St. 535, 138 N.E. 63, 64. In
Schario v. State, supra, it was stated: Whether or not justice is administered without denial
or delay' is a matter for which the judges are answerable to the people, and not to the General
Assembly of Ohio. Manifestly, when a case can be heard and determined by a court must
necessarily depend very largely upon the court docket, the quantity of business submitted to
the court, the nature, the importance, and the difficulties attending the just and legal solution
of matters involved.
[Headnote 2]
The statutes, we feel, should be construed as demanding diligence on the part of the
litigants rather than as an oppression upon the judge's duties of deliberation and of orderly
administration of justice. The mandatory aspect of the statutes should, then, be confined to
the individual action required.
aspect of the statutes should, then, be confined to the individual action required. So far as the
provisions may relate to judicial functions, they should be regarded as directory only. Accord:
Ratliff v. Sadlier, 53 Nev. 292, 299 P. 674, 676. As stated in that decision, And such
construction does no violence to the wording of the statute.
[Headnote 3]
Under such a construction it cannot here be said that the sureties themselves had failed to
justify within the time prescribed. Appellant through his counsel had, within that period, in
effect tendered his sureties for justification and had secured from the judge a time for their
examination at the earliest hour available. The entire matter of justification had, within the
period prescribed, been presented to the judge for orderly disposition by him at the hour
appointed by him. The acts of sureties and of appellant, so far as uncontrolled by the
procedural necessities of judicial action, had then been fully taken.
Hough v. Roberts M. & M. Co., 58 Nev. 245, 75 P.2d 731, cited to us by respondent
movant, is distinguishable. There no steps looking towards justification were ever taken, let
alone within the prescribed period. Although the case of Roush v. Van Hagen, 17 Cal. 121,
there cited and quoted, is indistinguishable from the case at bar upon the facts, the
constitutional aspect of the question was apparently neither presented to that court nor
considered by it. The opinion quoted Sedgwick as follows: When a statute fixes the time
within which an act must be done, the Courts have no power to enlarge it, although it relates
to a mere question of practice. So where an appeal, to be valid, must be made within ten days,
it is void if taken on the eleventh. The court recognized no distinction between judicial
action itself and nonjudicial acts of individuals such as comprise the taking of an appeal.
Subsequent California decisions in citing this authority appear to have confined its
application to cases involving the latter type of acts: cases where the required acts of the
sureties themselves were neither performed nor tendered within the time prescribed; or
where, in the absence of any indication that judicial necessities had dictated his course,
the judge had undertaken to extend the time for performance by the sureties.
involving the latter type of acts: cases where the required acts of the sureties themselves were
neither performed nor tendered within the time prescribed; or where, in the absence of any
indication that judicial necessities had dictated his course, the judge had undertaken to extend
the time for performance by the sureties. McCracken v. Superior Court, 86 Cal. 74, 24 P. 845;
Crowley Launch & Tugboat Co. v. Superior Court, 10 Cal.App. 342, 101 P. 935.
In his notice of motion to dismiss, respondent states: At the conclusion of said testimony,
the Court decided that the said sureties, and each of them, were worth an amount entitling
them to act as sureties on said Undertaking on Appeal, but that the form of said Undertaking
was insufficient and that a new Undertaking on Appeal should be given by the said
Defendant. Respondent contends that the sureties should, after filing of the amended
undertaking, have presented themselves once again to justify upon that undertaking. No
authority is cited in support of this proposition. The record does not contain the judge's order
in this respect. It would appear clear, however, that his decision and determination upon the
question of justification contemplated the filing of the amended undertaking and that the
sureties had justified themselves to act as such upon it.
The motion to dismiss the appeal is denied.
____________
69 Nev. 236, 236 (1952) Fisher v. State Ex Rel. Wait
BLANCHE FISHER, City Clerk of the City of North Las Vegas, Nevada, Appellant, v.
STATE OF NEVADA, on the Relation of GLEN R. WAIT, Respondent.
No. 3721
August 6, 1952. 246 P.2d 804.
department No. 2.
The State of Nevada, on the relation of Glen R. Wait, brought mandamus proceedings
against Blanche Fisher, city clerk of the City of North Las Vegas, Nevada, to compel her to
do certain acts required of her as clerk by ordinance establishing assessment district to defray
portion of costs of proposed sewer system. The Eighth Judicial District Court, Clark County,
A. S. Henderson, Judge, issued peremptory writ ordering clerk to comply with requirements
of the ordinance, and she appealed. The Supreme Court, per curiam, held that city was
empowered to form assessment district to defray expenses of construction of sanitary sewer.
Affirmed.
George E. Franklin, Jr., of Las Vegas, for Appellant.
Dotson & Earl, of Las Vegas, for Respondent, Glen R. Wait.
Municipal Corporations.
Where statute authorizing municipalities to form assessment district to defray expenses of improving
streets specified construction of sewers as among contemplated improvements, reference was not limited
to storm sewers but included sanitary sewers, which relate to street improvement in making possible
elimination of practice of dumping refuse in streets, and city was authorized to form assessment district to
defray expenses of constructing sanitary sewers. N.C.L.1929, sec. 1179.
OPINION
Per Curiam:
On March 18, 1952 the voters of the City of North Las Vegas, Clark County, Nevada, in
special election authorized the issuance of negotiable sewer bonds for the purpose of
constructing a sanitary sewer system along certain streets and alleys of that city.
authorized the issuance of negotiable sewer bonds for the purpose of constructing a sanitary
sewer system along certain streets and alleys of that city. On June 2, 1952 the city enacted
ordinance No. 78 providing for the formation of an assessment district to defray a portion of
the cost of the proposed sewer system. The provisions of the ordinance required certain
actions on the part of the city clerk including the execution and publication of a notice of
intention to form the assessment district. The clerk refused to execute the notice or perform
the other acts required of her by the ordinance upon the ground that the ordinance was
invalid, being in conflict with sec. 1179, N.C.L.1929. Upon her refusal to act a writ of
mandate was sought from the district court of Clark County by respondent Wait as a resident
and property owner of the city. On July 7, 1952 a peremptory writ of mandate was issued by
the district court providing: Now Therefore, You, the said Blanche Fisher, City Clerk of the
City of North Las Vegas, State of Nevada, are hereby commanded to execute the notice
contained in Ordinance No. 78 of said City as required by said notice and to publish said
Notice as provided therein, and to cause said Notice to be posted in such places as provided
therein and that you do each and everything required of you by said Ordinance No. 78
appertaining to the Notice of Determination and intention to establish Sanitary Sewer
Improvement Assessment District Number One (1); and you are further commanded to make
known to this District Court, in and for the County of Clark, State of Nevada at the hour of 10
o'clock A.M., on the 9th day of July, 1952, how you have executed this Writ and have you
then and there this Writ.
From the judgment of the court directing the issuance of that writ the city clerk has taken
this appeal.
Section 1179, N.C.L.1929, deals with the power of municipalities to form assessment
districts and provides:
Such part of the expenses of improving any streets, lanes, avenues or alleys by grading,
paving, graveling, curbing, parking, constructing sidewalks or crosswalks, or otherwise
improving the same, as the council shall determine, may be paid from the general fund or
district street fund, from the proper street district, or the said cost or a portion thereof, as
the council shall determine, may be defrayed by special assessments upon lots and
premises abutting upon that part of the street or alley so improved or proposed so to be,
or the lands abutting upon such improvement and such other lands as in the opinion of
the council may be benefited by the improvement.
lanes, avenues or alleys by grading, paving, graveling, curbing, parking, constructing
sidewalks or crosswalks, or otherwise improving the same, as the council shall determine,
may be paid from the general fund or district street fund, from the proper street district, or the
said cost or a portion thereof, as the council shall determine, may be defrayed by special
assessments upon lots and premises abutting upon that part of the street or alley so improved
or proposed so to be, or the lands abutting upon such improvement and such other lands as in
the opinion of the council may be benefited by the improvement. When the city council shall
determine to make any public improvement, such as laying pavements, constructing sewers,
drains, sidewalks and crosswalks, curbing, macadamizing, oiling, graveling or grading any
streets, avenues or alleys or in any way improving the same, and shall determine to defray the
whole or any part of the costs or expenses thereof by special assessment, they shall so declare
by ordinance, stating the improvements and what part or portion of the expenses thereof shall
be paid by special assessments and what amount shall be paid out of the general fund, street
fund, district street fund or any other fund.
Appellant's sole contention upon this appeal is that the section by its very language
purports to relate to the improving of streets, lanes, avenues and alleys; that the word sewer
as used therein should therefore be construed, in the light of the context of the section, to be
limited to storm sewers for proper surface drainage of thoroughfares and may not be
construed to include sanitary sewers such as are proposed by ordinance No. 78.
In our view there is no merit in this distinction. The purpose of sanitary sewers is to make
possible the elimination of the ancient and unsanitary practice of dumping refuse and filth
into the streets themselves. It can, therefore, hardly be contended that sanitary sewers have
no relation to the improvement of streets.
sewers have no relation to the improvement of streets. That the word sewers as used in the
statute was not intended to be confined to underground drains is clear from the fact that the
statute enumerates drains as well.
The judgment of the district court is affirmed.
____________
69 Nev. 239, 239 (1952) Western Nat'l Ins. Co. v. Trent
WESTERN NATIONAL INSURANCE COMPANY, Appellant, v.
ROBERT LEE TRENT, Respondent.
No. 3691
August 22, 1952. 247 P.2d 208.
department No. 1.
Robert Lee Trent sued the Western National Insurance Company for breach of a contract
of insurance against damage to plaintiff's automobile. From a judgment of the Eighth Judicial
District Court, Clark County, Frank McNamee, Judge, for plaintiff, and an order denying a
new trial, defendant appealed. The Supreme Court, Merrill, J., held that plaintiff's testimony
that a document containing statements that plaintiff would accept specified sum in
satisfaction of all his claims under the contract and that he released defendant from all claims
for damage to the automobile and authorized payment by defendant to a third party for
repairing it was in blank when signed by plaintiff and that blanks for amount of loss and sum
agreed to be accepted, names of insurer and party making repairs, and date on which damage
occurred were filled in by defendant, without plaintiff's knowledge, approval or authorization,
after letting the repair contract, was not inadmissible as varying terms of written instrument
by parol, but admissible as tending to negative existence of a contract of accord and
satisfaction alleged by defendant.
Affirmed.
Taylor and Gubler, of Las Vegas, for Appellant.
John W. Bonner, of Las Vegas, for Respondent.
1. Evidence.
Insured's testimony that document containing statements that he would accept specified sum in
satisfaction of all his claims under automobile damage insurance contract and that he released insurer from
all claims for damage to insured automobile and authorized payment by insurer to third party for repairs
thereto was in blank when signed by insured and that blanks for amounts of loss and sum accepted, names
of insurer and such third party, and date on which damage occurred were filled in by insurer, without
insured's knowledge, approval or authorization, after letting repair contract, was not inadmissible as
varying terms of written instrument by parol, but admissible as tending to negative existence of alleged
contract of accord and satisfaction.
2. Evidence.
Parol testimony is admissible to negative existence of contract, as parol evidence rule presupposes valid
and binding agreement.
3. Evidence.
An instrument may be shown by parol evidence to have been executed in blank and subsequently filled
out without authority or improperly in material respect.
4. Insurance.
The facts that insured addressed his complaints of unsatisfactory repair of his damaged automobile,
covered by insurance policy, to company making repairs instead of insurer, and that all negotiations for
settlement of dispute as to whether repairs were satisfactory were carried on between such company and
insured, did not demonstrate conclusively that insured acknowledged and accepted terms of alleged accord
and satisfaction, based on company's estimate of cost of repairs before making thereof, in absence of any
contention of estoppel or waiver or any proof of elements thereof.
5. Accord and Satisfaction.
To support plea of accord and satisfaction, meeting of minds of parties thereto must be clearly proved.
6. Insurance.
In insured's action against insurer for breach of automobile damage insurance contract, judgment for
plaintiff in sum exceeding amount of damages alleged in complaint, if defendant exercised option in
contract to keep automobile, or in sum less than that alleged, if defendant elected not to keep automobile,
was not erroneous as unsupported by pleadings and excessive, where alternative judgment for lesser sum
was unquestionably supported by pleadings.
OPINION
This is an action upon a contract of insurance. Respondent was the plaintiff below;
appellant was the defendant. The parties will be so designated in this opinion.
On February 16, 1949, plaintiff's automobile was damaged in an upset. The car was
covered against such injury by a contract of insurance between plaintiff and defendant
company. Immediately following the accident plaintiff gave notice thereof to an agent of
defendant company in Las Vegas, Nevada. Thereafter, repair was undertaken by the A. C.
Grant Company of Las Vegas. Plaintiff, upon examining the car, refused to accept it as
satisfactorily repaired. Negotiations failing, this action was brought for breach of contract.
Following trial before the court without a jury, judgment was rendered in favor of plaintiff in
the alternative: should defendant elect to keep the car (as was defendant's option under the
contract) plaintiff to have judgment in the sum of $2,150; should defendant elect not to keep
the car, plaintiff to have judgment in the sum of $1,345. From that judgment and from order
of the court denying new trial defendant has appealed.
Defendant contends that its obligation under the contract of insurance was reduced to the
fixed sum of $472.30 by accord and satisfaction reached prior to the performance of repairs
and based upon an estimate made by the Grant company. In support of its contention it
offered in evidence a document signed by plaintiff entitled Sworn Statement In Proof Of
Loss directed to defendant company. The document as offered in evidence was a printed
form containing certain blanks filled in by typewriting. Defendant relies upon that portion of
the document which reads:
The actual loss and damage to above described automobile as a result of said loss was
$522.30. * * *
Insured hereby claims of this company and will accept from this company in full release and
satisfaction in compromise settlement of all claims under this policy the sum of $472.30,
[being the amount of the loss less $50 deductible premium].
Upon the reverse side of the document was a second instrument also signed by plaintiff
and entitled Certificate of Satisfaction and Authorization To Pay Other Than Assured. This
stated, The loss or damage for which this claim is made has been made good to my entire
satisfaction and I hereby release and discharge the Western National Insurance Company
from all claims and demands for loss or damage which occurred on or about the 16th day of
February, 1949 and authorize payment to A. C. Grant Paint & Body Shop whose receipt for
same shall be a complete acquittance.
The italicized portions of the above quotations were typewritten completions of the blank
printed form.
Plaintiff testified at the trial, over objection by defendant, that the documents when signed
by him were in blank and were signed upon the representation of defendant's agent that they
constituted simply a proof of loss establishing that damage had been sustained, which proof
was necessary before repair could be undertaken; that subsequently bids were solicited by
defendant for the necessary repair and the contract of repair let by defendant to the Grant
company as low bidder; that the italicized portions of the above quotations were thereupon
filled in by defendant without knowledge, approval or authorization of plaintiff.
This testimony was disputed by defendant's agent but apparently was believed by the trial
court which found: That the proof of loss submitted to the defendant by plaintiff was at the
request of defendant signed in blank by plaintiff and delivered to defendant in that form; that
plaintiff received no consideration nor was there any meeting of minds, or new contract
entered into, nor was there any accord and satisfaction agreed upon by virtue of the
execution and delivery of said proof of loss signed in blank as aforesaid."
virtue of the execution and delivery of said proof of loss signed in blank as aforesaid.
[Headnotes 1-3]
Defendant's principal assignment of error upon this appeal is that the court erred in
admitting plaintiff's testimony as to the condition of the document when he signed it, in the
absence of any showing of fraud, since such testimony tended to vary by parol the terms of a
written instrument contrary to the parol evidence rule.
Such is not the case. Plaintiff is not contending that the terms of the accord and
satisfaction were other than those set forth in the Sworn Statement In Proof Of Loss.
Plaintiff contends that no accord and satisfaction ever existed. His testimony tends to
negative the very existence of such a contract rather than to vary its terms. It is well
recognized that parol testimony is admissible for such a purpose, for the parol evidence rule
presupposes a valid and binding agreement. See 32 C.J.S. 934 (Evidence, sec. 972 et seq.); 20
Am.Jur. 955 (Evidence, sec. 1094). It may, accordingly, be shown by parol that an instrument
in a material respect was executed in blank and was subsequently filled out without authority
or improperly. Jones v. Coulter, 75 Cal.App. 540, 243 P. 487; Hager v. Sidebottom, 130 Ky.
687, 113 S.W. 870; Saunders v. Commercial Credit Trust, 192 Minn. 272, 256 N.W. 142;
Richards v. Day, 137 N.Y. 183, 33 N.E. 146, 23 L.R.A. 601, 33 Am.St.Rep. 704.
Defendant asserts the general rule that if one signs an instrument containing blanks he
must be understood to entrust it to the person to whom it is delivered to be filled in by that
person. It must be borne in mind, however, that we are not here dealing with a case of
estoppel or of reliance upon apparent authority by an innocent third party. The parties to this
dispute are the parties to the supposed agency relationship itself. As between them the
question is as to their agreement: as to the extent of the actual authority to fill in the blanks.
As between them the contention remains available that the blanks were improperly filled
in contrary to the understanding of the parties and this contention may be established by
parol evidence.
between them the contention remains available that the blanks were improperly filled in
contrary to the understanding of the parties and this contention may be established by parol
evidence. Saunders v. Commercial Credit Trust, supra; Richards v. Day, supra.
[Headnotes 4, 5]
Defendant contends that the findings are unsupported by the evidence in that it is
established that plaintiff, until this action was brought, did not address his complaints to
defendant but to the Grant company; that all negotiations for settlement of the dispute were
carried on between that company and plaintiff. Defendant contends that this demonstrates
conclusively that plaintiff acknowledged and accepted the terms of the accord and
satisfaction. In the absence of any contention of estoppel or waiver or of any proof of the
elements thereof, it cannot be said that plaintiff by his conduct conclusively demonstrated an
acceptance of the accord and satisfaction. His primary interest was in the repair of his car and
in this connection the Grant company was the natural object of his complaints. His actions in
attempting to settle the dispute directly with that company cannot be said to establish an
agreement to look solely to that company for redress or to be inconsistent with his present
contention of liability in defendant. To support a plea of accord and satisfaction the proof
must be clear that there was a meeting of the minds of the parties. Nor should it be
maintained as a pitfall into which the unwary may fall by some act wholly unintended to
express his acquiescence in a transaction, wherein his lack of experience or lack of
knowledge of technical law might debar him from a right of action * * *. Wolf v. Humboldt
County, 36 Nev. 26, 131 P. 964, 965, 45 L.R.A., N.S., 762.
[Headnote 6]
Defendant contends that the judgment is not supported by the pleadings in that the
complaint alleges damages in the sum of $1,885 while judgment is in the sum of $2,150 and
thus is excessive.
sum of $2,150 and thus is excessive. That judgment, however, is optional with defendant and
is dependent upon its election to retain the automobile. The alternative judgment which is
dependent upon proof of damage is in the sum of $1,345 and is unquestionably supported by
the pleadings.
The judgment and order of the district court are affirmed with costs.
September 18, 1952.
Per Curiam:
Rehearing denied.
____________
69 Nev. 245, 245 (1952) Gascue v. Saralegui Land & Livestock Co.
DOMINIC GASCUE and HUGO FANUCCHI, Appellants, v. SARALEGUI LAND AND
LIVESTOCK COMPANY, a corporation, and EMILY SARA LEGUI CARRICABURU,
ARNOLD CARRICABURU, and PETER SARALEGUI, Respondents.
No. 3712
September 18, 1952. 247 P.2d 874.
Motion by respondents to dismiss appeal of appellants and counter-motion of appellants to
remand record on appeal for correction and amendment.
The Supreme Court, per curiam, held that fact that bill of exceptions filed contained no
certificate by clerk of trial court to papers making up judgment roll which were contained as
part of bill of exceptions was a defect or informality within statute prohibiting dismissal of
appeal for defect or informality in appellate proceedings until appellant has been given
opportunity to amend or correct such defect, and appellant was entitled to have record
remanded for correction.
Motion to dismiss, denied; motion to remand, granted.
John P. Thatcher, and Kearney and Adams, of Reno, for Appellants.
Lester D. Summerfield and Harlan L. Heward, of Reno, for Respondents.
Appeal and Error.
Fact that bill of exceptions filed contained no certificate by clerk of trial court to papers making up
judgment roll which were contained as part of bill of exceptions was a defect or informality within
statute prohibiting dismissal of appeal for defect or informality in appellate proceedings until appellant has
been given opportunity to amend or correct such defect, and appellant was entitled to have record
remanded for correction. N.C.L.1931-1941 Supp., secs. 9385.77, 9385.92; Rules of Supreme Court, rule 7.
OPINION
Per Curiam:
This is on motion by the respondents to dismiss the appeal of the appellants, and
counter-motion of the appellants to remand the record on appeal for correction and
amendment.
Respondents' motion to dismiss is based upon the fact that the bill of exceptions filed in
this matter contains no certificate by the clerk of the trial court to the papers making up the
judgment roll which are contained as a part of the bill of exceptions, such certificate being
required by the provisions of sec. 9385.92, N.C.L.1929, 1931-1941 Supp.
Appellants' motion is based upon the provisions of sec. 9385.77, N.C.L.1929, 1931-1941
Supp., providing as follows: No appeal shall be dismissed by the supreme court for any
defect or informality in the appellate proceedings until the appellant has been given an
opportunity, upon such terms as may be just and within a reasonable time to be fixed by the
court, to amend or correct such defect, and shall within such time have failed to comply with
any terms imposed and correct the defect, and upon Rule 7 of the rules of this court which
provides, For the purpose of correcting any error or defect in the transcript from the court
below, either party may suggest the same, in writing, to this court, and, upon good cause
shown, obtain an order that the proper clerk certify to the whole or part of the record as
may be required, or may produce the same, duly certified, without such order."
defect in the transcript from the court below, either party may suggest the same, in writing, to
this court, and, upon good cause shown, obtain an order that the proper clerk certify to the
whole or part of the record as may be required, or may produce the same, duly certified,
without such order.
In our view it is clear that the lack of certificate is a defect or informality within the
meaning of sec. 9385.77 and Rule 7 of this court, and that the record, accordingly, should be
remanded for correction in that respect. Such is the action which this court has in the past
taken in similar cases. State v. Bouton, 26 Nev. 34, 62 P. 595; Shirk v. Palmer, 48 Nev. 449,
232 P. 1083, 236 P. 678, 239 P. 1000.
The motion of respondents to dismiss the appeal is denied. The motion of appellants is
granted and the record herein is ordered remanded to the clerk of the trial court with the
direction that within two weeks from date hereof it be corrected and amended in the respects
specified and returned to the clerk of this court.
____________
69 Nev. 247, 247 (1952) State Ex Rel. Doyle v. Koontz
STATE OF NEVADA, on the Relation of HOWARD DOYLE and JAMES R.
HENDERSON, and ERNEST S. BROWN, Relators and Petitioners, v. JOHN KOONTZ, as
Secretary of State of Nevada, Respondent.
No. 3723
September 19, 1952. 248 P.2d 412.
Original proceeding by the State, on the relation of Howard Doyle and others, for a writ of
mandate commanding John Koontz, as Secretary of State, to print on the ballots for the next
general election an entire initiative petition for approval of an act relating to employment. The
Supreme Court, per curiam, held that the constitutional provision that if the legislature takes
no action on an initiative measure within a specified time, the Secretary of State shall
submit it to the qualified electors at the next general election, does not impliedly require
that the entire initiative petition be printed on the ballots, but the printing of enough
thereof to identify the measure and show its character and purpose is sufficient.
time, the Secretary of State shall submit it to the qualified electors at the next general
election, does not impliedly require that the entire initiative petition be printed on the ballots,
but the printing of enough thereof to identify the measure and show its character and purpose
is sufficient.
Petition denied, alternative writ of mandate vacated, and proceedings dismissed.
Ernest S. Brown and William P. Horgan, both of Reno, for Relators.
W. T. Mathews, Attorney General, George P. Annand, William N. Dunseath and John W.
Barrett, Deputy Attorneys General, all of Carson City, for Respondent.
1. Statutes.
The constitutional provision that if no action be taken by legislature on initiative measure within specified
time, secretary of state shall submit it to qualified electors at next general election, does not impliedly
require that entire initiative petition be printed on ballots, but only that enough thereof be printed to
identify measure and show its character and purpose. Const. art. 19, sec. 3.
2. Statutes.
The purpose of constitutional provision that if no action be taken by legislature on initiative measure
within specified time, secretary of state shall submit it to electors at next general election, and statutes
enacted to facilitate operation of such provision, is to submit to electors the question whether proposed
measure should be adopted or rejected, and such submission is properly made by printing title of proposed
act, with brief explanation sufficient to identify measure and show its character and purpose, on ballots.
N.C.L.1929, secs. 2438-2539, 2471, 2473, 2570-2580, 2575; Const. art. 19, sec. 3.
OPINION
Per Curiam:
This proceeding presents the sole question as to whether an initiative petition, when
submitted to the electors by the secretary of state after the legislature fails to take action
thereon, must be printed in full upon the ballots or may be submitted by title accompanied
with a brief statement of the purport thereof.
There was submitted to the 1951 session of the state legislature an initiative petition
proposing the enactment of an act popularly referred to as the Right to Work Act. The
legislature having failed to act upon the said initiative petition within the time provided by
constitutional and statutory provisions hereinafter referred to, the respondent secretary of state
advised petitioners that he intended to have ballots printed for the submission of the said
initiative petition to the qualified electors for approval or rejection at the next ensuing general
election by printing upon the ballot the title of the said proposed act, together with a brief
explanation thereof. Relators thereupon made demand in writing upon the secretary of state
that he print the petition in full upon the ballot, which written demand the secretary of state
again rejected upon advice of the attorney general. It is conceded that unless commanded to
do so by this court the secretary of state will not print the entire petition on the ballot. No
question is raised as to the propriety of the remedy sought.
What is known as the initiative amendment to the state constitution was proposed to and
passed by the 1909 legislature, agreed to and passed by the 1911 legislature, and approved
and ratified by the people at the general election of 1912. It now appears as section 3 of
article 19 of the state constitution, N.C.L.1929, sec. 207. Among other things, it reserves to
the people the power to propose and enact laws independent of the legislature, and provides
methods for the submission to the legislature of such proposed legislation. It further provides:
If said initiative measure be rejected by the legislature, or if no action be taken thereon
within said forty (40) days, the secretary of state shall submit the same to the qualified
electors for approval or rejection at the next ensuing general election. The last sentence of
the section reads as follows: The provision[s] of this section shall be self-executing, but
legislation may be especially enacted to facilitate its operation.
The legislature of 1921, Stats. 1921, 108, passed An act prescribing the procedure to be
followed in the presentation and adoption of acts initiated by the people.", now secs.
act prescribing the procedure to be followed in the presentation and adoption of acts initiated
by the people., now secs. 2570-2580, N.C.L.1929. Section 2575 repeats the provision above
quoted, when no action is taken upon the petition by the legislature within forty days. So far
as the same affects the present situation, the legislative act, secs. 2570-2580 N.C.L., appears
to do no more than codify the provisions of the constitutional amendment. The language of
the constitution is maintained virtually intact.
The general election law of 1917, Stats. 1917, 358, N.C.L.1929, secs. 2438-2539, bears
directly upon the question. Section 2471, being sec. 34 of said election law, requires the
secretary of state to certify to each county clerk any proposed constitutional amendment or
other question * * * to be submitted to the popular vote, sending to the county clerks copies
of such questions to supply to each inspector of election, to post three copies in each precinct
and to publish the same three times in a newspaper. Section 2473, being sec. 36 of the
election law, provides in part: Whenever any question is to be submitted to the vote of the
people, it shall be printed upon the ballot in such manner as to enable the electors to vote
upon the question in the manner hereinafter provided, with a brief statement of the purport of
such question.
Relators, maintaining that sec. 3 of article 19 of the constitution is self-executing, but
conceding the right of the legislature to enact legislation to facilitate its operation, insist
first that the clear wording of the constitution providing that if said initiative measure is not
acted upon by the legislature, the secretary of state shall submit the same to the qualified
electors at the next ensuing general election, leaves no doubt as to the requirement that the
entire initiative petition must be printed on the ballot; and that the provisions of sec. 36 of the
election law above quoted as to how the question shall be printed upon the ballot have
reference only to ensuing provisions as to manner of printing, size of type, etc.
only to ensuing provisions as to manner of printing, size of type, etc.
We must reject these contentions. The secretary of state, if not otherwise ordered by this
court, will place the matter on the ballot as follows:
Question No. 1
Initiative Petition
SHALLAn act relating to employment; prohibiting the denial of employment because of
nonmembership in a labor organization; prohibiting agreements excluding any person from
employment because of nonmembership in a labor organization; prohibiting strikes or
picketing to induce violation of this Act; making illegal compelling or attempting to compel a
person to join a labor organization or leave his employment against his will; prohibiting
conspiracies to cause the discharge of any persons because of nonmembership in a labor
organization; and prescribing penalties for the violation thereof.be approved?
Yes...............
No................
(EXPLANATION OF QUESTION No. 1)
The initiative measure, if adopted, will make it unlawful to deny any person the opportunity
to obtain or retain employment because of nonmembership in a labor organization, and will
prohibit any written or oral agreement whereby any person is excluded from employment
because of nonmembership in a labor organization, or the compelling by any person, labor
organization or officer or agent thereof, the joining by any person of an organization or to
engage in a strike against his will. Prohibits a conspiracy by two or more persons to cause the
discharge of any person or cause him to be denied employment because he is not a member of
a labor organization.
[Headnote 1]
It is not claimed that the brief statement of the purport of such question is deficient. It is
not contended that if so placed upon the ballot it would not be "in such manner as to
enable the electors to vote upon the question."
that if so placed upon the ballot it would not be in such manner as to enable the electors to
vote upon the question. It is not contended that the question as to the approval or rejection of
the initiative petition would not in such case be submitted to the voters. It is most seriously
contended however that the constitutional provision through the language hereinabove quoted
requires that said initiative measure be submitted to the electors and that compliance with this
requirement can only be had by placing the entire measure upon the ballot.
Such authorities as have considered the question support us in rejecting this theory. While
it is generally conceded that constitutional and statutory provisions requiring a description of
the proposed law or measure to be printed upon the ballot are mandatory and must be
complied with and that a fair portrayal of the chief features of the proposed law must be
stated in words of plain meaning so as to be readily understood by electors, it is not required
that the proposal be printed in full if enough is printed to identify the measure and show its
character and purpose. 18 Am.Jur. 298, Elections, sec. 180.
In State Ex Rel. Thompson v. Winnett, 78 Neb. 379, 110 N.W. 1113, 1118, 10 L.R.A.
(N.S.) 149, the Nebraska constitution required that a proposed constitutional amendment be
submitted to the electors for approval or rejection and it was contended that this required the
printing of the entire measure upon the ballot. The court in rejecting this contention said:
The attorney general suggests that the entire proposed amendment to the Constitution
should be printed in full upon the official ballot.' Of course, there is no ground for such a
supposition. The provision of the Constitution is that the amendment shall be submitted to the
electors for approval or rejection, but this does not require that the whole amendment so
submitted shall be upon the ballot. Enough was printed upon the ballot to identify the
amendment referred to, and to show its character and purpose; and that is all that is
required."
to identify the amendment referred to, and to show its character and purpose; and that is all
that is required.
[Headnote 2]
In our own constitution we are impressed by the complete absence of any express
requirement that the entire initiative petition be printed upon the ballot. That such
requirement is however implied by the provision that the secretary of state submit the same
to the electors and that the antecedent of the same is said initiative measure is not
convincing. The entire purpose of both the constitutional provisions and the statutes is to
submit to the electors the question as to whether the proposed measure should be adopted or
rejected. Such submission is, in our opinion, properly made in the manner contemplated by
the respondent secretary of state.
The petition is denied, the alternative writ vacated and the proceedings dismissed.
____________
69 Nev. 253, 253 (1952) State v. Echeverria
THE STATE OF NEVADA, Respondent, v.
DOMINGO ECHEVERRIA, Appellant.
No. 3696
September 24, 1952. 248 P.2d 414.
Appeal from Sixth Judicial District Court, Humboldt County; Merwyn H. Brown, Judge.
Domingo Echeverria was convicted of murder of the first degree and he appeals from
judgment and from order denying new trial. The Supreme Court, Eather, J., held that it lacked
authority to reduce punishment.
Judgment and order denying new trial affirmed with direction.
Donald M. Leighton, of Winnemucca, for Appellant.
W. T. Mathews, Attorney General, Geo. P. Annand, John W.
John W. Barrett, and Wm. N. Dunseath, Deputy Attorneys General, all of Carson City, and
James A. Callahan, District Attorney, of Winnemucca, for Respondent.
Homicide.
Supreme Court lacked authority to reduce punishment of an appellant who had been convicted of murder
in the first degree and whose punishment had been fixed at death by jury, such power being vested
exclusively in board of pardons and parole commissioners by constitution. N.C.L.1943-1949 Supp., sec.
10068; Const. art. 5, sec. 14.
OPINION
Appellant was convicted of murder of the first degree and his punishment fixed at death by
the jury. His appeal is from the judgment and from the order denying his motion for a new
trial.
On October 16, 1951, an information was filed in the Sixth judicial district court of the
State of Nevada in and for the county of Humboldt, charging the appellant, Domingo
Echeverria, with the crime of murder.
It was alleged in said information that the said Echeverria, on the 23d day of September,
1951, in the county of Humboldt, State of Nevada, did without authority of law, wilfully,
unlawfully, and with malice aforethought, kill and murder one Elizabeth Catlett, by striking
her with a length of pipe, thereby mortally wounding her, of which mortal wound she died on
the 23d day of September, 1951.
On October 17, 1951, following a preliminary examination, Donald M. Leighton, Esq., an
attorney at law, was appointed by the court to defend appellant, and thereafter appellant
entered his plea of not guilty, and thereupon, on the 17th day of October, 1951, the case was
set down for trial by jury for the 5th day of November, 1951. On November 6, 1951, the jury
returned a verdict of guilty of murder in the first degree and fixed the penalty at death.
fixed the penalty at death. On the 10th day of November, 1951, appellant moved for a new
trial on the ground that the verdict was contrary to the evidence. The matter was submitted
without argument and the motion was denied. Thereupon, the court sentenced appellant to
death during the week beginning January 20, 1952 and ending January 26, 1952.
The appellant filed notice of appeal on the 21st day of January, 1952, from the judgment
and from the order overruling appellant's motion for a new trial. The appeal was made upon
the record without transcript of the evidence.
The points made in support of the appeal are as follows:
1. That the defense attorney did not have sufficient time to fully prepare the appellant's
defense, due to the following circumstances:
a. Consultations with the appellant were conducted through an interpreter, and, as a result,
were ineffective and cumbersome.
b. The motive or cause of the crime is extremely complex and technical and hidden from
the perception of anyone but a trained expert in the field of psychiatry.
c. The events of September 23, 1951, upon which the appellant was tried, can best be
understood and judged by a study of the complete medical and mental history of the
appellant.
d. Without sufficient time to develop the underlying causes, the defense was based solely
upon the facts developed by witnesses to the events immediately preceding and succeeding
the occurrence of the homicide.
2. That the jury, at the time of arriving at its verdict, was affected by passion and
prejudice, due to the following circumstances:
a. The atrocious nature of the crime.
b. The nearness of the time of arrest to the time of trial.
c. Public sentiment.
The errors relied upon by the appellant in this case can not be considered by this court for
the reason that there is no record which can be looked into properly bringing them up.
In this regard we desire to point out that appellant did not within 20 days after judgment,
or within 20 days after the decision upon the motion for a new trial, serve and file a bill of
exceptions as required by the provisions of sec. 11029.01, N.C.L. Supp. 1943-1949. In fact
the record is silent that the court was ever requested pursuant to sec. 11029.03, N.C.L. Supp.
1943-1949, to order the preparation of the bill of exceptions, and no request was made.
Furthermore, a bill of exceptions was not prepared, served and filed by appellant in
accordance with subdivision 2, sec. 11029.02, N.C.L. Supp. 1943-1949.
It is true that sec. 11029.01, supra, has been held to be directory, and correctly so; but if
not so settled and signed within the time, some reasonable excuse should be given for the
delay. Where there is a good reason or excuse for delay in preparing and presenting the bill
for settlement, the showing should be made to the court below, and the judge should be
liberal in securing to the accused in such case all the advantages which the law awards to him.
State of Nevada v. Plunkett, 62 Nev. 258, 263, 142 P.2d 893, 149 P.2d 101. In this case the
record is silent that the court was ever requested to settle the bill of exceptions. What the
excuse was we are not permitted to determine for the reason that the record is not before us.
Had appellant after expiration of the statutory time involved, presented a bill of exceptions
for settlement, together with affidavits and evidence excusing the delay, the court upon
presentation could have settled such bill of exceptions. This was not done.
Counsel for appellant states in his brief that The appellant is a penniless Spanish Basque,
incapable of understanding the English language, spoken or written, and incapable of
speaking English except for the basic conversational terms and expressions.
and incapable of speaking English except for the basic conversational terms and expressions.
He is without means to employ his own counsel and is represented by counsel appointed by
the court. He is charged and convicted of having perpetrated a hideous crime, which, by its
atrociousness, charged the community with passion. He was brought to trial within the
community where the crime was committed, six weeks after the crime was committed and
nineteen days after defense counsel was appointed to represent him at the trial. He does not
appeal for his innocence, but for a review of the mitigating circumstances which justify a
reduction of his punishment from a sentence of death to a sentence of life imprisonment.
In view of the recent decisions entered by this court we cannot as a matter of law reduce
appellant's punishment, which is appellant's sole request on this appeal. This was decided in
the case of State v. Butner, 67 Nev. 436-442, 220 P.2d 631, 634.
The power to commute the sentence from death to life imprisonment is vested exclusively
in the board of pardons and parole commissioners by the provisions of section 14 of article V
of the state constitution. State v. Moran, 43 Nev. 150, 182 P. 927; State v. Butner, supra.
Initially, it is the exclusive function of the jury to fix the penalty at either death or life
imprisonment. Sec. 10068, N.C.L. Supp. 1943-1949.
No error appearing in the record before this court the judgment and the order denying a
new trial are hereby affirmed, and the district court is directed to make the proper order for
the carrying into effect by the warden of the state prison of the judgment rendered.
____________
69 Nev. 258, 258 (1952) Lynn v. Lynn
LILLIAN LYNN, Appellant, v. JAY JACOB LYNN,
Respondent.
No. 3719
October 17, 1952. 248 P.2d 1078.
An appeal was taken from a judgment of the Second Judicial District Court, Washoe
County, Wm. McKnight, Judge, department No. 1, and from order denying motion for new
trial. The Supreme Court, per curiam, held that appeal from judgment was not taken within
time provided by law and that appeal from order denying new trial failed for want of
supporting records.
Appeals dismissed.
Griswold and Vargas, of Reno, for Appellant.
Samuel Platt, of Reno, for Respondent.
Where appeals from judgment and order denying motion for new trial were timely filed as regarded
appeal from order denying motion for new trial but not as regarded appeal from judgment, appeal from
judgment could not be maintained since appeal from judgment and from order would be regarded as
separate notwithstanding statutory provision permitting an appeal from judgment and order denying motion
for new trial to be taken by filing of single notice of appeal.
Where appeal was taken from judgment and from order denying motion for new trial, and no bill of
exceptions was filed, appeal being taken upon judgment roll alone, appeal from order denying new trial fell
for want of supporting records.
OPINION
Per Curiam:
This is an appeal from judgment of the trial court rendered July 13, 1943 and from its
order denying motion for new trial made March 24, 1952, notice of which was given April 1,
1952. This appeal was perfected May 27, 1952. No bill of exceptions was filed, the appeal
being taken upon the judgment roll alone. Motion to dismiss the appeal has been made by the
respondent and must be granted.
69 Nev. 258, 259 (1952) Lynn v. Lynn
[Headnotes 1, 2]
It is apparent that the appeal from the judgment was not taken within the time provided by
law. Barlow and Truett v. Western Pac. R.R., 68 Nev. 511, 238 P.2d 901. It is likewise
apparent that the appeal from the order denying new trial must fail for want of supporting
record. Barlow and Truett v. Western Pac. R.R., 69 Nev. ......, 244 P.2d 695.
Accordingly it is ordered that the appeals be dismissed.
____________________
[Reporter's Note: Petition for a writ of certiorari in the above case was denied by the Supreme Court of the
United States on March 9, 1953.]
____________
69 Nev. 259, 259 (1952) In Re Wright
In the Matter of NUBAR WRIGHT,
Attorney-at-Law
No. 3695
October 17, 1952. 248 P.2d 1080.
Review of recommendation of Board of Governors of State Bar of Nevada for disbarment
of accused attorney for professional misconduct. The Supreme Court, Merrill, J., held that the
evidence supported the finding of the Board of Governors that the attorney had been guilty of
the misconduct charged.
Affirmed; disbarment ordered.
See also 68 Nev. 324, 232 P.2d 398.
Morse & Graves, of Las Vegas, and Harlan L. Heward, of Reno, for Petitioner.
Harvey D. Dickerson, of Las Vegas, for Complainants.
1. Attorney and Client.
In proceeding against attorney for misconduct, evidence supported finding of board of governors that the
attorney had been guilty of the misconduct charged.
69 Nev. 259, 260 (1952) In Re Wright
In absence of showing of prejudice, board of governors was not incompetent to act on citation of attorney
for misconduct though less than a quorum heard all of the evidence, where it was not contended that the
transcript did not have the study of all members of the board.
Subornation of perjury, tampering with witnesses or otherwise practicing deception upon a court by
fraudulent devices is gross misconduct in the perverting or obstructing of justice and warrants disbarment.
For purposes of disbarment, an attempt or conspiracy to commit a crime demonstrates moral turpitude to
a like degree as the commission of the crime itself.
Record in disbarment proceeding disclosed nothing of mitigation, and order of disbarment would be
affirmed.
OPINION
Petitioner, a duly licensed and practicing attorney of Las Vegas, Nevada, was cited for
misconduct by the local administrative committee of the State Bar of Nevada for Clark
County which, after hearing, made its findings and conclusions that petitioner was guilty of
misconduct. After hearing and review by the Board of Governors, findings were made by that
board to the following general effect:
That petitioner did on March 15, 1950 in Las Vegas, Nevada, enter into an agreement with
one Wayne Carpenter to violate the laws of the State of Nevada by securing a divorce for said
Carpenter without the six weeks' residence prescribed by statute, upon perjured testimony of
said Carpenter corroborated by perjured testimony of a witness which petitioner agreed to
provide for the purpose; that petitioner set a fee of $1,500 for the performance of these
services, accepting and banking a check for $200 as retainer; that petitioner set a fee of $100
for the perjured testimony of the corroborating witness and attempted three times to make
contact with that witness by telephone.
69 Nev. 259, 261 (1952) In Re Wright
The board concluded that petitioner was guilty of misconduct and recommended
disbarment. From that recommendation and those findings and conclusions petitioner has
applied to this court for review.
[Headnote 1]
It appears from the record that the person known as Carpenter was in fact a private
detective from California privately employed by certain attorneys of Las Vegas to represent
himself to petitioner as a prospective client. He had communicated with petitioner by
telephone, pursuant to which conversation he had then flown to Las Vegas, been met at the
airport by petitioner and taken to a hotel room for private discussion of his case. The hotel
room to which he went had been secured for him in advance by his attorney employers. A
microphone had there been hidden and connected to recording devices in an adjoining room.
The agreement cited as misconduct was reached during the course of a four-hour conversation
between petitioner and Carpenter, the whole of which was overheard by listeners in the
adjoining room and was recorded and subsequently transcribed.
The record before the local administrative committee and the Board of Governors (which
is now before us) included testimony of the listeners and both the transcript and the recording
itself. Upon both hearings the recording was played in full. It has likewise received the
attention of all members of this court and supports beyond question the findings of the board
as we have set them forth.
During the course of these proceedings petitioner has asserted three principal defenses.
Before the administrative committee his contention was that he had entered into his
agreement with Carpenter deliberately but with no intention ever of carrying it through; that
he suspected that a trap was being laid for him and acted as he did with the sole purpose of
determining and exposing those who were attempting the entrapment.
69 Nev. 259, 262 (1952) In Re Wright
Our study of the record renders it impossible for us to accept this contention. The conduct
of the petitioner throughout his recorded conversation with Carpenter was not that of a man
wary of entrapment. The admissions there freely made by him do not confine themselves to
the instant act of misconduct but concern as well past actions and courses of conduct which
certainly never would have been admitted had the petitioner had the slightest cause to suspect
Carpenter. We are inescapably led to the conclusion that during the conversation in question,
he dealt with Carpenter in full confidence that the man was as he represented himself to be
and with every intention of carrying out his illicit agreement.
Before the Board of Governors, petitioner contended that he was so plied with liquor by
Carpenter that his mind became befogged and that in entering into his agreement he did not
know what he was doing; that he never would have entered into the agreement had he not
been intoxicated. This defense, too, we must reject.
In the first place, it is wholly and flagrantly inconsistent with the earlier defense, made
under oath before the administrative committee. A man who claims that from the outset he
had suspected and deliberately set out to expose his entrappers cannot, in the same breath, be
heard to say that he knew not what he was doing.
Furthermore the record again refutes this contention. Petitioner's constant admonitions as
to the necessity for caution and future silence; his explorations of factual danger zones; his
recognition of potential weak spots in the false story and advice as to explanations to be made
thereof; all bespeak a practitioner experienced in such matters and a mind fully alert to the
dangerous vulnerability of a perjured case and to the consequences of deliberate professional
misconduct. Before the board, petitioner at least three times testified that intoxication
overcame him during the second half of the four-hour conversation. The record demonstrates
that the agreement was fully discussed during the first two hours and was reached
immediately following dinner served in the room, the consuming of which occupied
approximately 30 minutes of that time.
69 Nev. 259, 263 (1952) In Re Wright
was reached immediately following dinner served in the room, the consuming of which
occupied approximately 30 minutes of that time.
Petitioner's principal defense before this court is that of entrapment. It is first contended
that the record does not show any foundation or basis for such resort to a decoy. This
contention we must reject. It is clear from the record that Carpenter's employers believed and
had reasonable cause to believe not only that petitioner was a person disposed to commit the
offense, but that he had already committed a similar offense on at least one occasion. That
actual proof of such earlier offense does not appear in the record does not destroy the
foundation of such cause for belief.
Next it is contended that the offense was committed at the instigation and subject to the
persuasion and inducement of Carpenter; that the criminal design originated not with
petitioner but with Carpenter himself; citing Sorrells v. U.S., 287 U.S. 435, 53 S.Ct. 210, 77
L.Ed. 413, 86 A.L.R. 249. We are satisfied from the record, however, that such was not the
case. The record discloses that Carpenter merely presented to petitioner the opportunity to
commit the offense which opportunity was freely accepted by petitioner. Carpenter's course
was simply to state his problem: his need for divorce; his need for urgency; then, in effect:
That's my problem. You tell me what I've got to do and what it will cost. It was petitioner
who then asked, What is the maximum you can stay?; who explained the necessity for a
corroborating witness as to the fact of six weeks' residence; who outlined the perjured
testimony necessary from that witness; who fixed the amount of the fee, explaining the fact
that it was six times his usual charge due to the risk involved.
In this respect petitioner again refers to the use of alcohol. It is clear that a considerable
amount was consumed during the course of the conversation, all of it provided by Carpenter.
Petitioner contends this must be regarded as improper inducement and enticement.
69 Nev. 259, 264 (1952) In Re Wright
In this we cannot agree. Improper it most certainly was; an inducement, however, it was not.
We cannot and do not condone such use of liquor by a decoy. Could we believe that
petitioner would not have submitted to the offered temptation had it not been for the liquor
with which he was plied; could we but believe that his normal resistance to temptation was
thereby weakened; we would not hesitate in rejecting the findings of the board. The record,
however, in the respects upon which we have already remarked, does not permit us to reach
such a conclusion.
Petitioner next invokes a matter of general principle and policy. Accepting that evidence
secured as was that before us is not thereby rendered incompetent in a criminal proceeding, it
is contended that use of these methods by agencies of the bar to secure evidence against one
of its members is not to be tolerated.
Certain it is that the professional mind revolts at the invasion of professional privacy
inherent in a surreptitiously recorded conversation between an attorney and his supposed
client. Certain it is, too, that one cannot but be highly offended by the use of alcohol for no
apparent reason other than to weaken possible resistance to a proposed entrapment. However,
such matters as respect for the profession and for its dignity and the mutual courtesy and
confidence of its members cannot be enforced by compulsion but must, by the bar itself, be
earned by meritorious conduct and reputation. We may not, then, when our conduct is called
to question, assume to ourselves such matters of special privilege as a grant of immunity from
repugnant, though lawful, methods of proof.
[Headnote 2]
Finally petitioner has questioned the competency of the board to act in this matter. It is
pointed out that the matter was considered by the board in three separate meetings, a quorum
being present on each occasion. Three of the seven members who unanimously voted upon
the findings, conclusions and recommendation were absent from the second meeting, at
which time the recording was played and counsel were heard in argument.
69 Nev. 259, 265 (1952) In Re Wright
absent from the second meeting, at which time the recording was played and counsel were
heard in argument. It is contended that those three members were thereby disqualified,
leaving less than a quorum (six members) qualified to act. It is not contended that the
transcript did not have the study of all members. In our view petitioner's contention is
unrealistic and impractical. If a majority of a board of busy lawyers, serving without pay and
as an arm of this court, in a proceeding of this nature taking several days, were compelled to
recess every time one of them was called from the meeting or otherwise engaged, the
functioning of the board might well prove an impossibility. In the absence of any showing of
prejudice we must hold this contention to be without merit.
[Headnote 3]
The findings and conclusions of the Board of Governors are, therefore, affirmed. We look,
then, to its recommendation of disbarment. It is clear that subornation of perjury, tampering
with witnesses or otherwise practicing deception upon a court by fraudulent devices is gross
misconduct in the perverting or obstructing of justice and warrants disbarment. In Re Bailey,
40 Nev. 139, 161 P. 512; People v. Beattie, 137 Ill. 553, 27 N.E. 1096, 31 Am.St.Rep. 384;
See 5 Am.Jur. 418, 419 (Attorneys At Law, secs. 262, 263); 9 Cal.Jur.Sup. 504 (Practice Of
Law, sec. 58); Ann. 14 A.L.R. 868; 45 Am.St.Rep. 82. Our question, then, is whether
mitigating circumstances exist in this matter which have escaped the Board of Governors and
which would warrant reduction of the recommended penalty.
[Headnote 4]
It is to be noted that the contemplated crime or unlawful practice was not actually
consummated. It is recognized, however, that an attempt or conspiracy to commit a crime
demonstrates moral turpitude to a like degree as the commission of the crime itself. In Re
Coffey, 123 Cal. 522, 56 P. 448; In Re Shepard, 35 Cal.App. 492, 170 P. 442. The conduct of
petitioner constituted more than contemplation; more than a mere wrongful thought or
indiscreet utterance; more than mere willingness or disposition to commit a wrongful act.
69 Nev. 259, 266 (1952) In Re Wright
than contemplation; more than a mere wrongful thought or indiscreet utterance; more than
mere willingness or disposition to commit a wrongful act. It was in itself an overt, wrongful
act comparable to conspiracy.
In his conversation with Carpenter, after dealing at length with the risk he assumed in
following the proposed course; after making it clear that he would rather lose [his] right arm
than lose [his] license, petitioner stated: Well, I take a chance any time where it's safe.
From the record as to his subsequent conduct we are convinced that his failure to follow
through with his agreement was due solely to the fact that his subsequent investigation of
Carpenter had belatedly convinced him that the man was not what he had represented himself
to be. Petitioner's actions certainly were not those of contrition guided by a sober
reawakening of moral principles. Rather they were the actions of a man suddenly become
wary of exposure; of a man confronted with the probability that the chance he had taken
was not well taken; of a man repentant not of wrongful but of careless conduct.
[Headnote 5]
We find nothing of mitigation in the record. We take notice of the fact that this is not
petitioner's first offense. Sixteen months ago he was by this court ordered suspended from the
practice of law for a period of six months for unethical conduct. In Re Wright, 68 Nev. 324,
232 P.2d 398.
It is ordered that petitioner, Nubar Wright, be disbarred from the practice of law in the
State of Nevada and that his name be stricken from the roll of attorneys of this court.
November 13, 1952.
Per Curiam:
Rehearing denied.
____________________
[Reporter's Note: In re Nubar Wright. Petition for a writ of certiorari in the above case was denied by the
Supreme Court of the United States on October 12, 1953.]
____________
69 Nev. 267, 267 (1952) Hall v. Adair
T. T. HALL, Doing Business as HALL'S HARDWARE, Appellant, v. JOE ADAIR,
Defendant; and T. J. McLAUGHLIN, Sheriff of White Pine County, State of Nevada,
Respondent.
No. 3651
October 17, 1952. 249 P.2d 231.
Appeal from an order of the Seventh Judicial District Court, Harry M. Watson, Judge.
Action by a judgment creditor against sheriff for funds which were taken by attachment
and execution from third person who allegedly owed them to judgment debtor and against
which laborers employed by third person had filed notice of preferred claims. The Seventh
Judicial District Court, White Pine County, Harry M. Watson, Judge, denied an order against
the sheriff, and the judgment creditor appealed. The Supreme Court, Badt, C. J., held that
statute allowing laborers a preferred claim was enacted to secure the claims of laborers as
against those of a judgment creditor of the employer, but that it did not give them a
preference over a fund in the hands of a sheriff as the result of a levy in a suit by a third party
against a fourth party, in which an indebtedness from their employer to such fourth party has
been garnished.
Order reversed; case remanded with directions.
Gray & Horton, of Ely, for Appellant.
C. J. McFadden, of Ely, and Cooke & Cooke, of Reno, for Respondent.
1. Attachment; Execution.
Statute allowing laborers to file notice of claim against property which is subject to execution, attachment
and writ of similar nature was enacted to give them a preferred claim against the property of the judgment
debtor whose value they had by their labor enhanced, so that the first attachment or writ of execution on
behalf of some other creditor would not exhaust the debtor's property. N.C.L.1929, sec. 9041.
2. Garnishment.
Under statute giving laborers preference, upon the filing of notice, against property subject to
execution, attachment and writ of similar nature, an original garnishee, the debtor of
the defendant, is neither a party to the original action or to the intervention by the
laborers and he has no opportunity to defend against any claim made against him in
those proceedings.
69 Nev. 267, 268 (1952) Hall v. Adair
notice, against property subject to execution, attachment and writ of similar nature, an original garnishee,
the debtor of the defendant, is neither a party to the original action or to the intervention by the laborers
and he has no opportunity to defend against any claim made against him in those proceedings. N.C.L.1929,
sec. 9041.
3. Garnishment.
Statute giving laborers preference, upon the filing of notice, against property subject to execution, and
attachment, did not give them preference over fund which was held by their employer for a third person
and which was subject to attachment and execution in favor of the third person's judgment creditor.
N.C.L.1929, sec. 9041.
4. Sheriffs and Constables.
On motion by judgment creditor against sheriff for funds, which had been taken by attachment and
execution from third person who allegedly owed them to judgment debtor, but against which laborers
employed by third person had filed notice of preferred claim, where third person made no appearance,
sheriff could not raise question of whether the funds were in fact those of the third person. N.C.L.1929,
secs. 2153, 9041.
5. Appeal and Error; Sheriffs and Constables.
On motion by judgment creditor against sheriff for funds, which were taken by attachment and execution
from third party who allegedly owed them to judgment debtor, but against which laborers who claimed to
have been employed by third person filed notice of preferred claim, affidavit, which was not received in
evidence and in which judgment debtor deposed that funds were not owed to him but were owed by third
person to a contractor, would have no effect since statute allowing preferred claim was for benefit of
laborers, and motion to remand to include affidavit would be denied. N.C.L.1929, secs. 2153, 9041.
OPINION
Hall sued Adair, obtained a default judgment, and levied on funds in the hands of one Bert
Paris, which had theretofore been attached. Paris did not dispute his indebtedness to Adair,
nor did he protest the levy or intervene or in any way become a party to the litigation. Hall
demanded of the sheriff that the latter pay over to him on his judgment and execution
sufficient of the funds levied upon to satisfy the same.
69 Nev. 267, 269 (1952) Hall v. Adair
the funds levied upon to satisfy the same. In the meantime one Scow, on behalf of himself
and some 11 other persons, filed with the sheriff a claim that they had performed services for
Paris and were entitled to a preferred claim against the fund under the provisions of sec.
9041, N.C.L.1929. The sheriff refused, and Hall sought, under the provisions of sec. 2153,
N.C.L.1929, an order of the court requiring such payment. After a hearing upon the motion,
the court held that the claimants were entitled to the protection and relief afforded by the
statute and denied the order. This appeal from such denial presents the sole question as to
whether the laborers, specifically claiming to have performed their labor for Paris, had a
preferred claim under the statute against the funds collected by the sheriff from Paris by
reason of Hall's judgment against Adair and the levy made thereunder.
We are clearly of the opinion that they had not. There is nothing in the record to indicate
any connection between the labor performed for Paris and the debt of Paris to Adair or to the
transaction which resulted in that debt. There is nothing in the record attacking the validity of
either the debt from Adair to Hall or the debt from Paris to Adair. The written opinion and
decision of the trial court indicates that in the action of Hall v. Adair, Scow filed a third-party
claim contending that the debt from Paris was properly owing not to Adair but to Scow. This
claim was rejected by the trial court and no appeal from such rejection was taken. The
language of the learned trial judge is illuminating in this regard. He said: Nor is it helpful to
recall that on April 28th, two days after levy of the attachment, the same Alf Scow made duly
acknowledged claim that the attached moneys belonged to him as an absolute owner as a
contractor in connection with the shearing of the Paris sheep, the law in such case not
providing any preference of course. It is true this claim was made in the way of a third-party
claim, which was denied on the showing made but in one breath Scow claims the proceeds
as his own and in the next attempts to preserve the individual claims of the wage earners,
by attempting to assert their individual claims to a preference provided by law."
69 Nev. 267, 270 (1952) Hall v. Adair
the showing made but in one breath Scow claims the proceeds as his own and in the next
attempts to preserve the individual claims of the wage earners, by attempting to assert their
individual claims to a preference provided by law.
[Headnotes 1, 2]
Upon the record, therefore, Paris's debt was properly owing to Adair and the money
realized therefrom was Adair's property and subject to the attachment and subsequent levy of
execution by Hall. Section 9041, N.C.L. 1929, as construed and discussed in the early case of
Alexander v. Archer, 21 Nev. 22, 24 P. 373 (where the section will be found quoted in full),
was enacted to secure the claims of laborers who had by their labor contributed to the
enhancement of the value of their employer's property, and to give them a preferred claim
against the property of the judgment debtor, whose value they had thus enhanced, so that the
first attachment or writ of execution on behalf of some other creditor would not exhaust the
debtor's property. The filing of the preferred claim and the statutory service on the creditor,
the debtor and the sheriff was in that case said to be in the nature of an intervention with
notice that the labor claimant had an interest in the action as against both the plaintiff and the
defendant, with a lien upon the fund resulting from the plaintiff's attachment of the
defendant's property. The original garnishee, the debtor of the defendant, is neither a party to
the original action or the so-called intervention. He has no opportunity to defend against any
claim made against him in those proceedings.
[Headnote 3]
In short, the preference which the statute contemplates in such a case as this would be a
preference over Hall as between debts owed by Adair to Hall on the one hand, and to the
labor claimants on the other. Here there is no contention that Adair owes anything to the labor
claimants. The preference which the sheriff seeks here to enforce is a preference over Adair
as between debts owed by Paris to Adair on the one hand or to the labor claimants on the
other.
69 Nev. 267, 271 (1952) Hall v. Adair
here to enforce is a preference over Adair as between debts owed by Paris to Adair on the one
hand or to the labor claimants on the other. Such preference is not afforded by the statute.
[Headnote 4]
In the oral argument of the appeal respondent sheriff, conceding that the labor claims were
against Paris and not against Adair, insisted that the vital question was whether the proceeds
in his hands were the property of Adair or of Paris, and that Hall had failed to prove that they
were owned by Adair. But the history of the case (so far as disclosed by the record) and the
absence of Paris from the proceedings preclude this inquiry. This court in an earlier case,
construing the same section before it was amended to require service of notice of the labor
claims on the creditor and debtor, said:
The proceeds of sale under execution are the property of the judgment creditor to the extent
of his judgment, and the judgment debtor is not only the owner of the surplus, but he has a
right to insist that no part of the proceeds shall be applied to the payment of any claim against
him that has not been ascertained and determined by due process of law. The officer levying
the execution is accountable to the debtor and creditor for the entire proceeds of the sale, and
the legislature could not, if it would, absolve him from such accountability by directing him
to apply the proceeds to the satisfaction of claims, the validity of which has neither been
admitted by them, nor established by legal process. Coscia v. Kyle, 15 Nev. 394.
[Headnote 5]
At the time of the argument and submission of this case on the merits, respondent also
submitted his motion to remand the record to the district court so as to include therein an
affidavit of Adair purporting to show that the attached funds were in no event due from Paris
to Adair, but were payable by Paris to Alf Scow, contractor for the shearing of the Paris
sheep, on which job the labor claimants in question were the shearers, packers, etc.
69 Nev. 267, 272 (1952) Hall v. Adair
job the labor claimants in question were the shearers, packers, etc. It appears that this
affidavit was offered in support of Scow's third-party claim, was marked for identification,
was not received in evidence, but was filed in the case. The motion to remand the record for
the inclusion of this affidavit must be denied. Even if it were considered, it could not affect
the result of this appeal. If it attempts to show ownership by Alf Scow of the money paid to
the sheriff by Paris, Scow, as a contractor employing the laborers, is not within the protection
of the statute. The Adair affidavit, even if it had been admitted in evidence by the trial court
in support of the labor claims (when as a matter of fact it was rejected by the trial court when
offered in support of Scow's third-party claim), and even if it were accepted by this court,
would serve to refute the earlier Scow affidavit to the effect that he was a shearer entitled to a
preference of $147.90 for wageswages apparently due to him from himself as shearing
contractor. And we must again note the absence of Paris from any of the proceedings.
As a further ground for reversal, appellant contends that the labor claim filed by Scow on
behalf of himself and other labor claimants was neither verified as required by statute nor
served upon the parties as required. In view of our disposition of the first ground of appeal, it
becomes unnecessary to discuss such assignment.
The order appealed from is reversed and the case remanded, with directions for the entry
of an order directing the sheriff to pay over to the judgment creditor such part of the
$1,817.95 in his hands as the result of the levy of execution, necessary to satisfy the plaintiff's
judgment for $1,242.14 and costs. Appellant is allowed his costs in this court.
____________
69 Nev. 273, 273 (1952) Davison v. Gowen
EARL F. DAVISON, also Sometimes Known as and Called EARL F. DAVIDSON,
Appellant, v. FRANK GOWEN, COUNTY OF CLARK, STATE OF NEVADA,
JOHN DOE, MARY DOE and DOE CORPORATION, Respondents.
No. 3703
October 22, 1952. 249 P.2d 225.
department No. 1.
Action to quiet title to land which plaintiff had forfeited for failure to pay taxes after 1932
and which was offered for sale for delinquent taxes in 1934. The defects in the 1936 tax deed
to defendant's predecessor were nonjurisdictional. The Eighth Judicial District Court, Clark
County, department No. 1, Frank McNamee, Judge, rendered judgment for defendant and
denied new trial, and plaintiff appealed. The Supreme Court, Eather, J., held that plaintiff was
barred by failure to act for 14 1/2 years.
Judgment and order affirmed.
Taylor & Gubler, of Las Vegas, for Appellant.
Geo. E. Franklin, of Las Vegas, for Respondent, Frank Gowen.
Roger D. Foley, of Las Vegas, for Respondent, County of Clark.
Taxation.
Where defects in 1936 tax deed were nonjurisdictional, claim of former owner, who had forfeited the
land for failure to pay the taxes after 1932, was barred by his failure to act for a period of 14 1/2 years after
property had originally been offered for sale for delinquent taxes in 1934. N.C.L.1929, sec. 6449.
OPINION
This is an action to quiet title to lands sold for delinquent taxes. The parties will be
referred to as they appeared in the court below: appellant as plaintiff, respondents as
defendants.
appeared in the court below: appellant as plaintiff, respondents as defendants.
Plaintiff acquired the land in question in 1928 by tax sale. Thereafter he paid taxes for the
years 1928 through 1932, since which date he has not paid taxes. The property was again sold
for delinquent taxes in 1934, and, no bidder appearing, was purchased by the county, a
certificate of such sale being issued September 11, 1934. In the absence of redemption a tax
deed to the county was executed September 11, 1936. More than 12 years later on December
31, 1948, pursuant to resolution of the board of county commissioners, the property was
advertised for sale. On March 2, 1949, the sale was held and the property purchased by
defendant Gowen. On the same day, his interest in the property apparently once again
aroused, plaintiff brought this action to quiet title. Subsequently, on March 9, 1949, the sale
was confirmed by the commissioners and the following day a deed to defendant was
executed.
The action was tried without a jury and on October 6, 1949, judgment was rendered in
favor of defendants. From that judgment and from order denying new trial this appeal is
taken.
The parties stipulated to waive oral argument and to submit the appeal on briefs, and it
was so ordered.
The assignment of errors is general in character, plaintiff's contention (apparently) being
that the 1936 tax deed to the county was void by virtue of defects in the sale proceedings, in
the certificate of sale, and in the deed itself.
Section 6449, N.C.L.1929 (as it stood in 1934), provides that the deed shall be primary
evidence of the regularity of the proceedings pursuant to which it was executed. The section
then provides:
* * * No tax heretofore or hereafter assessed upon any property, or sale therefor, shall be
held invalid by any court of this state on account of any irregularity in any assessment, or on
account of any assessment or tax roll not having been made or proceeding had within the
time required by law, or on account of any other irregularity, informality, omission,
mistake or want of any matter of form or substance in any proceedings which the
legislature might have dispensed with in the first place if it had seen fit so to do, and that
does not affect the substantial property rights of persons whose property is taxed; and all
such proceedings in assessing and levying taxes, and in the sale and conveyance therefor,
shall be presumed by all the courts of this state to be legal until the contrary is
affirmatively shown.
the time required by law, or on account of any other irregularity, informality, omission,
mistake or want of any matter of form or substance in any proceedings which the legislature
might have dispensed with in the first place if it had seen fit so to do, and that does not affect
the substantial property rights of persons whose property is taxed; and all such proceedings in
assessing and levying taxes, and in the sale and conveyance therefor, shall be presumed by all
the courts of this state to be legal until the contrary is affirmatively shown. No action or
counterclaim for the recovery of lands sold for taxes shall lie unless the same be brought or
interposed within three years after the execution and delivery of the deed therefor by the
treasurer, any law to the contrary notwithstanding.
The section thus contains curative provisions together with a special three-year statute of
limitations.
With reference to such statutes it is stated in 51 Am. Jur. 997 (Taxation, sec. 1158) in part
as follows:
The majority rule is that if there were jurisdictional or fundamental defects in the sale
which rendered the proceedings absolutely void, the statute will not sustain the tax deed,
irrespective of whether it is or is not regular and valid on its face.
The preceding section (sec. 1157) states in part as follows:
* * * the generally accepted rule is that such special statutes of limitation do not run
where, by reason of some jurisdictional defect, the tax deed is absolutely void upon its
facenot merely voidable but void. * * *
If the general rule then, is to be applied, the defects here asserted must be fundamental or
jurisdictional defects such as would render the deed absolutely void. Otherwise plaintiff is
clearly barred by his failure to act for a period of 14 1/2 years. Haskins v. Roseberry, 9 Cir.,
119 F.2d 803, 805 (dealing with our statute as we have quoted it).
The defects asserted by plaintiff are not separately, or in some instances, clearly
enumerated.
in some instances, clearly enumerated. We have, however, to the best of our ability, carefully
scrutinized each asserted defect. No one of them, we feel, can be characterized as
jurisdictional or so fundamental as to render the deed void. Rather, they would appear to fall
within the category of irregularity, informality, omission, mistake or want of any matter of
form or substance in any proceedings which the legislature might have dispensed with in the
first place if it had seen fit so to do, and that does not affect the substantial property rights of
persons whose property is taxed. Haskins v. Roseberry, supra.
The judgment and order denying new trial are affirmed with costs.
____________
THE STATE OF NEVADA on the Relation of H. J. CRUMMER, Relator, v.
THE FOURTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA,
in and for the County of Elko and the Honorable TAYLOR H. WINES,
Judge Thereof, Respondents.
No. 3718
October 23, 1952. 249 P.2d 226.
Prohibition proceeding was brought against court to prohibit it from proceeding further in
an action in which the relator was the defendant. The Supreme Court, Merrill, J., held that
statutes confer jurisdiction on courts in actions in personam against residents, who are outside
of the state, by service of process other than personal service.
Petition for writ of prohibition denied, and proceedings dismissed.
See also 68 Nev. 527, 238 P.2d 1125.
Hawkins, Rhodes and Hawkins, of Reno, for Relator.
Woodburn, Forman & Woodburn, and Gordon R. Thompson, of Reno, and Orville R.
Wilson, of Elko, for Respondents.
1. Courts.
State, through its courts, has jurisdiction over person of one domiciled within state, even though he may
be absent from state.
2. Courts.
Courts do not possess jurisdiction apart from and independent of the state, and are but instrumentalities
through which state itself exercises its own jurisdiction over a person.
3. Courts.
State by constitution and statute has conferred on its courts general authority to exercise the whole of its
jurisdiction.
4. Process.
Exercise by state of jurisdiction through its courts over its domiciliaries, other than by personal service of
process, cannot be had in absence of express statutory provision.
5. Process.
State may confer jurisdiction on its courts in actions in personam against residents, who are absent from
state, by providing method of service of process other than personal service. N.C.L.1931-1941 Supp., secs.
8582, 8583.
6. Process.
Statute providing that when person on whom service is to be made resides out of state, or has departed
from state, or cannot, after due diligence, be found within state, or conceals himself to avoid service of
summons, and fact shall appear, by affidavit, to satisfaction of court, court may grant order that service be
made by publication of summons, does not apply to actions in personam against nonresidents over whom
the state possesses no jurisdiction. N.C.L.1931-1941 Supp., sec. 8582.
7. Process.
Statute providing that when person on whom service is to be made resides out of state, or has departed
from state, or cannot, after due diligence be found within state, or conceals himself to avoid service of
summons, and fact shall appear, by affidavit, to satisfaction of court, court may grant order that service be
made by publication of summons, and statute providing that when publication is ordered, personal service
of copy of summons and complaint, out of state, shall be equivalent to completed service by publication,
are sufficient to confer jurisdiction on courts of action in personam against resident outside state.
N.C.L.1931-1941 Supp., secs. 8582, 8583.
8. Process.
Statute providing that when person on whom service is to be made resides out of state, or has
departed from state, or cannot, after due diligence be found within state, or conceals
himself to avoid service of summons, and fact shall appear, by affidavit, to
satisfaction of court, court may grant order that service be made by publication of
summons, and statute providing that when publication is ordered, personal service of
copy of summons and complaint, out of state, shall be equivalent to completed
service by publication, are sufficient to give adequate notice to resident outside state.
N.C.L.1931-1941 Supp., secs.
be made resides out of state, or has departed from state, or cannot, after due diligence be found within
state, or conceals himself to avoid service of summons, and fact shall appear, by affidavit, to satisfaction of
court, court may grant order that service be made by publication of summons, and statute providing that
when publication is ordered, personal service of copy of summons and complaint, out of state, shall be
equivalent to completed service by publication, are sufficient to give adequate notice to resident outside
state. N.C.L.1931-1941 Supp., secs. 8582, 8583.
9. Process.
Order made on January 31, 1952 for publication of a summons in action in personam against resident,
who was outside of state, was sufficiently supported by affidavits, where affidavits placed resident at his
father's ranch in neighboring state on May 19, 1950, twice in December, 1951, and on January 11, 1952,
and showed that on June 26, 1951 resident testified on deposition that he was looking after ranch in
neighboring state. N.C.L.1931-1941 Supp., secs. 8582, 8583.
OPINION
Petitioner seeks a writ prohibiting further proceedings in an action before respondent court
in which action petitioner is the defendant. The question presented is whether that court, by
substituted service of process, has acquired personal jurisdiction over petitioner.
Two sections of our statutes are involved. Sec. 8582, N.C.L.1929, Supp. 1931-1941,
provides in part as follows: 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, * * * such court or judge may grant
an order that the service be made by the publication of the summons. Sec. 8583,
N.C.L.1929, Supp. 1931-1941, provides in part as follows: When publication is ordered,
personal service of a copy of the summons and complaint, out of the state, shall be equivalent
to completed service by publication * * *.
The action involved is one in personam: one for breach of contract and money damages.
breach of contract and money damages. Summons was duly issued. Affidavits were then filed
for the purpose of establishing that defendant, although a domiciled resident of this state, had
departed from the state and could not, therefore, be found within the state. An order based
upon this ground was thereupon made by respondent court for service of process by
publication of summons pursuant to sec. 8582, N.C.L. Subsequently summons was served
upon the defendant personally within the state of California pursuant to sec. 8583, N.C.L. The
defendant then moved to quash service of process, which motion was denied. Petition for writ
of prohibition was then made to this court and an alternative writ issued.
In considering whether under the statutes of this state and the facts of this case, respondent
court has acquired jurisdiction in personam over the petitioner, three general questions are
presented:
(1) Whether this state has jurisdiction over the person of petitioner while absent from the
state.
(2) If so, whether the state by statute has provided for the exercising of such jurisdiction
through its courts.
(3) If so, whether respondent court has proceeded in a proper manner to exercise such
jurisdiction.
[Headnote 1]
Question Number 1. It is conceded by petitioner that this question is no longer an issue
but has been put to rest by the Supreme Court of the United States in Milliken v. Meyer, 311
U.S. 457, 61 S.Ct. 339, 343, 85 L.Ed. 278. Since petitioner is domiciled within this state, this
state has jurisdiction over his person even though he may be absent from the state. See also:
Restatement of the Law, Conflict of Laws, sec. 79; Restatement of the Law, Judgments, sec.
16. The basis for such jurisdiction (a departure from the old physical power to compel
performance theory; see: Dodd, Jurisdiction in Personal Actions, 23 Ill.L.Rev. 427) is clearly
set forth in Milliken v. Meyer, supra, where it is stated: As in case of the authority of the
United States over its absent citizens * * * the authority of a state over one of its citizens
is not terminated by the mere fact of his absence from the state.
authority of the United States over its absent citizens * * * the authority of a state over one of
its citizens is not terminated by the mere fact of his absence from the state. The state which
accords him privileges and affords protection to him and his property by virtue of his domicil
may also exact reciprocal duties. Enjoyment of the privileges of residence within the state,
and the attendant right to invoke the protection of its laws, are inseparable' from the various
incidences of state citizenship. * * * The responsibilities of that citizenship arise out of the
relationship to the state which domicil creates. * * * One such incident of domicil is
amenability to suit within the state even during sojourns without the state, where the state has
provided and employed a reasonable method for apprising such an absent party of the
proceedings against him.
The existence and extent of the jurisdiction possessed by a state in such a case as this,
then, are not dependent upon a statutory declaration and taking to itself of jurisdiction. Such
jurisdiction is inherent and exists by virtue of the relationship between the state and its
domiciliary.
[Headnotes 2, 3]
Question No. 2. It is one thing to possess jurisdiction. It is another to exercise it. Courts
do not possess jurisdiction apart from and independent of the state. They are but
instrumentalities through which the state itself exercises its own jurisdiction over a person.
(In accord, see: 1 Beale, The Conflict of Laws, 326, sec. 74.1.) By constitution and statute the
state has affirmatively conferred upon its various courts authority to exercise the jurisdiction
of the state within specified limits. These limits, however, have to do with types of actions
and proceedings and establish the competency of the courts as among themselves to deal with
such specified matters. See: Restatement of the Law, Judgments, sec. 7. Within these bounds
of competency and in the absence of other specified limitations, the state must be regarded as
having conferred upon its courts general authority to exercise the whole of its
jurisdiction.
as having conferred upon its courts general authority to exercise the whole of its jurisdiction.
[Headnotes 4, 5]
In addition to authority, however, the courts must by statute be provided with the
necessary machinery. Thus it is recognized that exercise of jurisdiction through its courts by a
state over its domiciliaries (other than by personal service of process) cannot be had in the
absence of express statutory provision. See: Restatement of the Law, Judgments, sec. 8; sec.
16, comment b. It should also be recognized, however, that while in connection with such
statutory provision one sometimes sees reference to a state's conferring jurisdiction upon its
courts, this is not done by a formal declaration of bestowal or an express conferral of
authority. The requirement of statute does not go to the possession of jurisdiction (or to the
extent of the jurisdiction possessed) but to the manner and means of its exercise. The
requirement is founded not in the need for bestowal of authority already generally conferred
by constitution, but in the need for due process and for the express enlargement of the
common-law method for service of process which was limited to personal service. As stated
in Milliken v. Meyer, supra, the requirement is that the state has provided and employed a
reasonable method for apprising such an absent party of the proceedings against him. As
stated in the Restatement of the Law, Judgments, sec. 8, comment b, a state in cases such as
this, may confer jurisdiction upon its courts by providing a method of service of process
other than personal service. (Emphasis added in both instances.)
Such a method has been provided in this state by secs. 8582 and 8583, N.C.L., quoted at
the outset of this opinion. It is to the sufficiency of these provisions that petitioner's principal
contentions are directed.
[Headnotes 6, 7]
Petitioner contends that sec. 8582 has already been construed by this court not to apply
to actions in personam, citing Nahas v. Nahas, 59 Nev. 220, 90 P.2d 223, 92 P.2d 71S;
Perry v. Edmonds, 59 Nev. 60, S4 P.2d 711; Pacific States Sec. Co. v. District Court, 4S
Nev. 53
construed by this court not to apply to actions in personam, citing Nahas v. Nahas, 59 Nev.
220, 90 P.2d 223, 92 P.2d 718; Perry v. Edmonds, 59 Nev. 60, 84 P.2d 711; Pacific States
Sec. Co. v. District Court, 48 Nev. 53, 226 P. 1106. These cases, however, deal with actions
against nonresidents over whom the state itself possessed no jurisdiction. Since the purpose
of the section is to provide for the exercising through its courts of such jurisdiction as the
state itself possesses, it is obvious that the statute could not apply in such actions. While the
language used in the opinions might be regarded as broad enough to cover all actions in
personam, the scope of the decisions cannot be held to exceed that of the situations there
considered.
Petitioner next contends that this section may not be construed to apply to cases such as
this since the provision for publication of summons where the person to be served has
departed from the state, does not expressly limit its application to residents; that its
application, therefore, may cover nonresidents as well as residents; that it constitutes a single,
inseverable provision which, to be valid, must be valid in its entirety as to all it purports to
embrace; that if it be held applicable to actions in personam against residents, it must likewise
be held applicable to such actions against nonresidents and thus be wholly invalid; that it
should, therefore, be confined in its application to actions in rem and quasi in rem which may
apply to both residents and nonresidents. In this connection our attention is drawn by
comparison to the Wyoming statute under consideration in Milliken v. Meyer, supra. There
the statute specified that service by publication might be had in actions where the defendant,
being a resident of this state, has departed from the county of his residence * * *. W.C.S.
1920, sec. 5636. (Emphasis added.)
This, however, is to treat the section as an original bestowal of authority by the state upon
its courts in which light, as we have indicated, we do not regard it.
(Cf. Cella Commission Co. v. Bohlinger, 8 Cir., 147 F. 419, 421, 8 L.R.A., N.S., 537, cited
by petitioner, where the statute in question not only provided a method of service of process
upon all foreign corporations, but expressly stated without limitation that such service shall
be sufficient to give jurisdiction of the person * * *.) Nowhere does our statute purport to
define its jurisdictional limits nor characterize the jurisdiction which may be exercised under
it. It does no more, and purports to do no more, than provide a method by which such
jurisdiction as the state possesses may in certain cases be exercised through its courts. As
indicated by our earlier quotation from Milliken v. Meyer, it is not statutory language which
delineates the extent of the state's jurisdiction over persons, the exercise of which by the
courts has been generally authorized. Such jurisdictional limits are fixed by the relationship
between the person served and the commanding state; by the existence or lack of existence of
any personal duty to respond to the command of process.
[Headnote 8]
Petitioner next contends that the method of substituted service provided by secs. 8582 and
8583, N.C.L., is not calculated to give adequate notice. It is pointed out that under sec. 8583
personal service is not made mandatory but is merely made the equivalent of completed
service by publication. Upon the authority of McDonald v. Mabee, 243 U.S. 90, 37 S.Ct. 343,
61 L.Ed. 608, L.R.A. 1917F 458, it is contended that service by publication is insufficient.
Therefore, it is argued, under our statutes personal service outside of the state must be equally
insufficient.
We need not decide whether under McDonald v. Mabee service by publication would be
adequate under the facts of the case before us. In our view Milliken v. Meyer disposes of
petitioner's contention. Under the Wyoming statute personal service was no more mandatory
than under our statute. In the language of that opinion the test was whether the state had
"provided and employed a reasonable method."
test was whether the state had provided and employed a reasonable method. We need not
quibble over the significance of the word equivalent as used by our legislature. We do not
regard that choice of language as materially distinguishable from that of the Wyoming statute
which provided: In all cases where service may be made by publication * * * personal
service * * * may be made out of the state. W.C.S. 1920, sec. 5641. If petitioner's contention
were valid it might well have been said in Milliken v. Meyer that personal service was not
available since that was not a case where service might be had by publication. The fact of the
matter is that our statutes have provided personal service outside of the state as one method of
giving notice and that that was the method employed in this case. It is stated in Milliken v.
Meyer, While outside the state [Meyer] was personally served in accordance with a statutory
scheme which Wyoming had provided for such occasions. And in our view the machinery
employed met all the requirements of due process.
Question Number 3. Petitioner here contends that the trial court's order for publication of
summons was improper for the reason that it was not sufficiently supported by affidavit. That
order was made on January 31, 1952. The nearest identification of petitioner to that date was
made on January 11, 1952, when one affiant stated that on that date he spoke with petitioner
at his father's ranch in California. Petitioner contends that this lapse of 20 days is fatal to the
order since the nature or anticipated extent of petitioner's absence from the state after January
11 is not shown, nor whether his absence continued thereafter to January 31. The fact of his
continuing domicil in Nevada is not in issue.
In a decision involving an earlier action (since dismissed) between the same parties now
before respondent court, this court dealt with the same question here presented. State ex rel.
Crummer v. District Court, 68 Nev. 527, 238 P.2d 1125, 1126. In that case we pointed out
that the affidavit gave little assurance that the defendant's absence continued at the time
the order was signed" and that "the facts establishing the pertinent circumstances should
give reasonable assurance that those circumstances exist at the time the order is sought."
defendant's absence continued at the time the order was signed and that the facts
establishing the pertinent circumstances should give reasonable assurance that those
circumstances exist at the time the order is sought.
[Headnote 9]
The affidavits now before us do, we feel, give such assurance. They place petitioner at his
father's ranch in southern California on the occasion of four contacts made by one affiant: on
May 19, 1950, twice in December 1951, and on January 11, 1952. They show that on June 26,
1951, petitioner testified upon deposition in answer to an inquiry as to his occupation, that at
that time he was looking after a ranch in southern California. They show that that
deposition was taken in this state upon stipulation of counsel that petitioner in so appearing
would be exempt from service of process within this state. They show that upon one further
occasion in July 1951, petitioner attempted to secure a stipulation of exemption from service
of process in order that he might return to this state to attend the Reno rodeo. A showing was
thus made of a continuing absence on the part of petitioner for over a year and a half,
coupled, substantially, with a continuing presence and occupation at a given address in
California. The circumstances indicate absence of any immediate intent to return and tend
affirmatively to establish a probability to the contrary.
The petition for writ of prohibition is denied with costs. The alternative writ is vacated and
the proceedings dismissed.
____________
69 Nev. 286, 286 (1952) Herzog v. Herzog
FLORENCE G. HERZOG, Appellant, v. PAUL
HERZOG, Respondent.
No. 3679
October 23, 1952. 249 P.2d 533.
department No. 2.
Divorce suit by husband against wife, who was allegedly insane. From a judgment for
plaintiff, defendant appealed. The Supreme Court, Badt, C. J., held that where wife was
maintained without charge in hospital for insane in another state and children were cared for
by husband, finding of trial court that community property was in possession and control of
husband, and award of custody of children to husband was proper.
Affirmed.
G. William Coulthard, Guardian ad litem, of Las Vegas, for Appellant.
Emilie N. Wanderer, of Las Vegas, for Respondent.
1. Divorce; Evidence.
In action for divorce where there was competent testimony of seven doctors and psychiatrists as to
insanity of defendant, evidence was sufficient to sustain finding that wife had been insane for two years
immediately prior to commencement of action, but was insufficient to require finding that husband had
deserted wife.
2. Divorce.
Where insane wife was maintained without charge in hospital in another state and husband cared for
children, finding of trial court in divorce action, that community property was in possession and control of
husband and the award of custody of children to husband was proper disposition of community property.
N.C.L.1943-1949 Supp., sec. 9463.
3. Divorce.
In divorce action brought against wife, who had allegedly been insane for more than two years prior to
commencement of action, who was maintained without charge in hospital in another state and whose only
expense was for minor articles, trial court did not abuse its discretion in not ordering husband to provide
support for wife. N.C.L.1929, sec. 9460.
4. Divorce.
Where court did not order that husband contribute to support and maintenance of insane wife and amount
required by wife for minor items was not shown, trial court did not abuse its discretion in not ordering
husband to give statutory bond provided for in case of divorce on ground of insanity. N.C.L.1929, sec.
9460.
5. Divorce.
Statutory provision that divorce decree on ground of insanity shall not release successful party from
contributing to support and maintenance of defendant does not require the retention of jurisdiction by trial
court to modify decree, and failure of trial court to retain jurisdiction for purpose of possible future order
for support of insane wife was not an abuse of discretion. N.C.L.1929, sec. 9460.
6. Divorce.
A statute authorizing divorce for insanity and providing that divorce decree shall not relieve successful
party from contributing to support and maintenance of defendant leaves unimpaired the husband's duty to
support and maintain divorced wife and duty may be enforced by later procedure. N.C.L.1929, sec. 9460.
OPINION
Paul Herzog obtained a divorce from Florence G. Herzog on the ground of the latter's
insanity. The court rejected appellant's cross complaint for desertion. Appellant, through her
guardian ad litem, assigns 20 separate errors in support of her appeal. Many of these are
repetitious and many obviously without merit.
[Headnote 1]
1. The record contains so much competent testimony of some seven doctors and
psychiatrists as to the insanity of the defendant over a period of years that we should not be
justified in spending any time in discussing appellant's contention that the evidence is
insufficient to justify the decision and findings that appellant has been continuously insane
for more than two years immediately preceding the commencement of the action, and that the
statutory requirement for corroboration was not met.
was not met. This is so even if we exclude the testimony attacked by the appellant as
incompetent. For like reasons we do not discuss the sufficiency of the evidence to justify the
court's rejection of the defendant's cross complaint on the grounds of desertion.
Many assignments of error are directed to specific findings of fact and conclusions of law
made by the court on the ground that such findings and conclusions were without the issues
made by the pleadings and were not supported by the evidence. In almost every case of such
assignment appellant confines herself to such bare assertion. A careful examination of the
record shows no prejudicial error in any of the respects assigned.
2. Appellant's most serious attack is made upon the court's disposition, or its failure to
make disposition, of the community property of the parties. It was admitted by the pleadings,
as specifically stated by the court, that the parties owned community property consisting of an
automobile, $20,000 in cash and United States defense bonds, and certain insurance policies
for $48,000 insurance in which the three minor children of the parties were named as
beneficiaries. There was also a house and lot at Kenosha, Wisconsin, which produced a $60
net monthly rental and which stood in the names of both parties. The children were of the
respective ages of 13, 10 and 7 years at the time of the trial. The defendant wife was at the
time, and had been for several years prior thereto and apparently still is, confined in the Elgin
State Hospital in the state of Illinois. The plaintiff, who is himself a doctor of medicine,
testified that the state of Illinois maintained and supported his wife at the Elgin State Hospital
without charge, but that he kept a sum of money on deposit there, available for the purchase
of personal items for his wife. At the conclusion of the case the trial court announced its
decision from the bench to the effect that the prayer of plaintiff's complaint for a divorce on
the ground of his wife's insanity should be granted and that he should have the custody of the
minor children.
custody of the minor children. The court then denied a request of the guardian ad litem for a
finding with reference to the community property, and denied his request for a requirement
that the plaintiff give bond to meet the needs of the insane defendant.
Section 9463, N.C.L.1943-1949 Supp., provides in part as follows:
In granting a divorce, the court may award such alimony to the wife and shall make such
disposition of the community property of the parties as shall appear just and equitable, having
regard to the respective merits of the parties and to the condition in which they will be left by
such divorce, and to the party through whom the property was acquired, and to the burdens, if
any, imposed upon it, for the benefit of the children. The court may also set apart such portion
of the husband's property for the wife's support and the support of their children as shall be
deemed just and equitable.
It is insisted by appellant that the failure of the court to assign to her any part of the
$20,000 in cash and securities in the possession of respondent was in violation of the
requirement of the statute, because, by reason of such divorce, upon the plaintiff's death the
defendant will not succeed to any part of his estate and will be entirely without provision for
support, and because of the possibility that the state of Illinois may modify its policy of
providing for the insane defendant without charge or the defendant may for some reason be
removed to some other institution which would or might require payment for her support.
Against these contentions it is asserted by the respondent husband that the matters
complained of were entirely within the discretion of the court and that its discretion as
exercised was amply justified by the conclusive showing of the defendant's insanity, the
negative prognosis as to recovery, the absence of any indication that the Elgin State Hospital
at Illinois would not continue to provide for the defendant indefinitely, the attitude of
respondent in providing for the personal needs of appellant at the institution and the
necessity for the expenditure of the community funds for the benefit of the children.
in providing for the personal needs of appellant at the institution and the necessity for the
expenditure of the community funds for the benefit of the children.
In the early case of Lake v. Bender, 18 Nev. 361, 394, 4 P. 711, 730, 7 P. 74, under the
statutes then existing but not materially changed as to the purpose under consideration, it was
held that the matter of division of property is left to the legal discretion of the trial court, and
this court ought not to interfere unless the discretion given has been abused. Later cases have
approved this view. Walker v. Walker, 41 Nev. 4, 164 P. 653, 169 P. 459; Buaas v. Buaas, 62
Nev. 232, 147 P.2d 495.
[Headnote 2]
It would appear that in the present case the trial court exercised its discretion by, in effect,
awarding all of the community personal property to the husband, for the reasons first that the
insane defendant, supported by the state of Illinois, did not require the same, and secondly
that the husband required the same for the benefit of the children. The court accomplished
this by the simple finding that this property was in the possession and control of the husband
rather than by awarding it to him as community property, for the benefit of the children. If
this court would not reverse the awarding of the community property to the husband for the
benefit of the children as an abuse of discretion under the circumstances of the case, there is
no greater occasion for reversal simply because the court handled the matter as it did. It
should be further noted in support of the exercise of the court's discretion, first that the
Wisconsin property owned by both parties was left undisturbed, with the rentals apparently
still available to the wife, and secondly that under our statute, hereinafter discussed, the
decree does not relieve the husband of his liability for the support of his wife. We think it
clear that the court took into consideration all of the factors mentioned in the statute.
3. Appellant assigns error in the court's failure to make any order for the husband's
support of the wife.
make any order for the husband's support of the wife. Section 9460, N.C.L.1929, after
authorizing a divorce on the ground of the defendant's insanity existing for two years prior to
the commencement of the action and requiring corroborative evidence of such insanity, reads
in part: * * * a decree granted on this ground shall not relieve the successful party from
contributing to the support and maintenance of the defendant, and the plaintiff in such action
shall give bond therefor in an amount to be fixed by the court; * * *
[Headnote 3]
The court adopted the plaintiff's proposed finding to the effect that the defendant wife was
provided by Elgin State Hospital with full maintenance and support, including medical and
psychiatric care and hospitalization, without any charge or expense whatsoever to herself or
to others, saving only incidental expenses for minor items of clothing, candy, sundries and the
like, which expenses have been provided by the plaintiff, and that it is not true that
defendant requires $200 per month for her support and maintenance. Appellant had objected
to this finding and submitted a proposed finding to the effect that she was without means and
that $200 per month was required for her support. What has been said above with reference to
disposition of the community property applies with like force to this assignment of error. The
learned district judge stated from the bench: From the testimony of the doctor [plaintiff and
respondent herein] there is no fixed sum of money due that hospital. She does require some
money for delicacies and minor things. He says he keeps money there for that purpose. No
specific amount has been offered in evidence. I think he will still comply with the
requirements of the institution in Illinois, whatever [they] may be, and of course keep a sum
of money on deposit for her. I don't know what kind of wants they are, I suppose a dress or a
nightgown, whatever it might be from time to time. This correctly reflects the testimony as
we read it.
reflects the testimony as we read it. Such testimony, in our opinion, justifies such exercise of
the court's discretion.
[Headnote 4]
4. It is contended that, under the provisions of the statute last quoted, requirement for
bond on the part of the plaintiff is mandatory and that the court's refusal to exact a bond was
error. The bond required by the statute is to secure the plaintiff's contributing to the support
and maintenance of the defendant. If the court has for sufficient reason refused to include in
its decree a provision requiring the plaintiff to contribute to the support and maintenance of
the insane defendant, there remains nothing to be secured by the bond. The same reasoning
applies to the requirement that a sum of money be kept on deposit at the hospital to take care
of delicacies and minor things * * * a dress or a nightgown * * *. As there was no evidence
to indicate the amount of such deposit and as the court was therefore unable to require a
deposit to be maintained in any specific sum, any bond required would necessarily have been
nominal. We find the assignment to be without merit.
[Headnotes 5, 6]
5. The court adopted plaintiff's proposed conclusion of law that the court retain
jurisdiction of the parties and the cause of action for the sole purpose of making such other
and further orders relative to the care, custody, support and maintenance of the minor children
of the parties hereto as may from time to time appear to be necessary and proper. Appellant
asserts error in the failure of the court to retain jurisdiction of the parties for the purpose of
making further orders relative to the support of the appellant. This assignment is predicated
on the wording of sec. 9460, N.C.L.1929, supra, to the effect that the decree shall not relieve
the plaintiff from contributing to the defendant's support and maintenance. It is also asserted
that the court's action was an abuse of its discretion. We do not consider the point well taken.
well taken. Other than in the defendant's proposed findings and conclusions the record does
not disclose any contention in the trial court that it should retain jurisdiction for the purpose
indicated. The proceedings on motion for new trial do not assert this failure as an error in law.
The question of the court's retention of jurisdiction has on several occasions had the attention
of the legislature. Section 9462, N.C.L.1929, gave the court the right, upon good cause
shown, to change the custody of the minor children. As later amended, the court was
authorized by sec. 9462, N.C.L.1943-1949 Supp., during the pendency of the action or at the
final hearing or any time thereafter during the minority of the children, to make further orders
for their custody, care, education, maintenance and support, and at any time thereafter to
modify or vacate such orders. To date, however, the legislature has refrained from providing a
statutory retention of jurisdiction to modify orders for the support and maintenance of the
wife and has left the retention of such jurisdiction to the discretion of the court granting the
decree. The specific provision of sec. 9460 to the effect that a divorce decree on the ground of
insanity shall not relieve the successful party from contributing to the support and
maintenance of the defendant obviously does not result in the retaining of jurisdiction to
modify the decree. See Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638. The quoted clause left
unimpaired the legal duty of the plaintiff to support the defendant, and such duty can be
enforced in her behalf by whatever procedure and in whatever forum might be available. State
v. Brown, 213 Ind. 118, 11 N.E.2d 679, 113 A.L.R. 1243. In the court's failure to reserve
jurisdiction for the purpose of possible future orders for the support of the wife, we find no
abuse of discretion.
The judgment and the order denying new trial are affirmed. No costs are allowed.
____________
FLOY EMILY BROWNFIELD, Appellant, v. F. W. WOOLWORTH CO., a Corporation
Organized and Existing Under the Laws of the State of New York, Respondent.
No. 3699
October 24, 1952. 248 P.2d 1078.
Appeal from the Second Judicial District Court, Washoe County; Harold O. Taber, Judge,
department No. 3.
Personal injury action. The Second Judicial District Court, Washoe County, Harold O.
Taber, Judge, department No. 3, in trial, without jury, entered judgment for plaintiff in sum
$1,233.20, and plaintiff appealed on ground that damages awarded were inadequate but
record was limited to the judgment roll. The Supreme Court, Merrill, J., held that
determination could not be made that findings failed to support judgment even though
findings upon their face appeared inconsistent.
Affirmed.
See also 69 Nev. 143, 242 P.2d 810, 69 Nev. 297, 251 P.2d 589.
Woodburn, Forman & Woodburn, and Gordon R. Thompson, of Reno, for Respondent.
1. Trial.
Purported finding that plaintiff's injuries caused extreme physical and mental pain and suffering to
plaintiff's damage in sum of $1,000 did not constitute the trial court's conclusion and decision but was a
finding.
2. Damages.
In a personal injury action, elements of pain and suffering are wholly subjective and, because of their
nature, determination of their monetary value falls peculiarly within the province of finder of facts.
In personal injury action, which was tried without jury, where findings upon their face appeared
inconsistent, but the record was limited to the judgment roll, the supreme court could not say that the
judgment was not supported by the findings or inconsistent therewith.
could not say that the judgment was not supported by the findings or inconsistent therewith.
Upon appeal in personal injury action, even if the supreme court were disposed, in absence of any record
of evidence, to prefer one of trial court's findings over another and conclude that judgment awarded
inadequate damages, the proper remedy would be to remand case for a new trial.
The supreme court may not invade province of the factfinder by arbitrarily substituting a monetary
judgment in a specific sum felt to be more suitable.
In personal injury action, where plaintiff failed to move for new trial, such relief, even if the supreme
court were disposed to grant it, would not be available upon appeal.
OPINION
This is an action brought by appellant as plaintiff for personal injuries resulting from
negligence. The appeal is taken from judgment of the trial court on the ground that the
damages awarded are inadequate in the light of the findings (the trial having been had before
the court without a jury); that the judgment, therefore, is not supported by the findings.
Judgment was in favor of appellant in the sum of $1,233.20. The record is limited to the
judgment roll. It does not appear that any motion for new trial ever was made.
No objection to the findings of fact was made by respondent, nor were any additions
thereto or modifications thereof proposed. The findings by reference adopt as true many of
the allegations of the complaint. In this manner they deal in detail with the nature of
respondent's negligence, with the manner in which that negligence proximately caused the
injury to appellant and, in particular detail, with the nature and extent of appellant's injuries.
By such reference the trial court has incorporated into its findings not only a wealth of factual
detail, but also much of appellant's descriptive language and reiteration respecting severe
pain, severe shock, constant pain, intense pain and agony, fear and anguish.
language and reiteration respecting severe pain, severe shock, constant pain, intense pain and
agony, fear and anguish. It is this elaborate detail, attributable to the findings, which,
appellant contends, renders the findings so complete as to eliminate all need for a transcript
of testimony in order that this court determine as matter of law that the judgment is
inadequate. This, however, is not the essential problem presented by this appeal.
[Headnotes 1, 2]
The findings also contain the following: That said injuries to the Plaintiff, Floy Emily
Brownfield, caused said Plaintiff, Floy Emily Brownfield, extreme physical and mental pain
and suffering, as above found, to the damage of said Floy Emily Brownfield in the sum of
One Thousand Dollars. This finding squarely supports the judgment. It would appear,
therefore, that rather than an inconsistency between the findings, standing as a whole, and the
judgment, the inconsistency is between the findings themselves.
Appellant contends, however, that the finding quoted is, properly speaking, no finding at
all, but rather the court's conclusion and decision from the facts. No authority is cited for this
proposition and we are unable to accept it as valid. This is not a case where the monetary
extent of damage can be calculated by reference to some objective standard and thus
ascertained as matter of law. The elements of pain and suffering are wholly subjective. It can
hardly be denied that, because of their very nature, a determination of their monetary
compensation falls peculiarly within the province of the jury or, as in this case, the trial court
as finder of fact.
[Headnote 3]
We are, then, confronted with findings which upon their face appear inconsistent. Under
these circumstances and in the absence of any record of the evidence we cannot assume that
either is correct or that either is erroneous or unfounded. Of necessity we must hold that
appellant has failed to sustain her proposition that the judgment is not supported by the
findings but is inconsistent therewith.
the judgment is not supported by the findings but is inconsistent therewith.
[Headnotes 4-6]
Further it should be clear that even were we disposed, in the absence of any record of the
evidence, to prefer one finding over another and conclude generally that the judgment was
inadequate, the proper remedy would be to remand for new trial. We may not invade the
province of the fact-finder by arbitrarily substituting a monetary judgment in a specific sum
felt to be more suitable. Appellant having failed to move for new trial, this relief, even were
we disposed to grant it, is not available.
Judgment is affirmed with costs.
December 22, 1952. 251 P.2d 589.
1. Damages; New Trial.
A court is powerless to reduce verdict in action for unliquidated damages and render
judgment for less amount, unless party in whose favor verdict was rendered consents to
reduction, but may order a remittitur, and upon refusal thereof, may set aside verdict and
award a new trial.
Where plaintiff failed to move for new trial, such remedy was not available in supreme
court even if damages were inadequate.
Rehearing denied.
See also 69 Nev. 143, 242 P.2d 810, 69 Nev. 294, 248 P.2d 1078.
Woodburn, Forman & Woodburn, and Gordon R. Thompson, of Reno, for Respondent.
In our view there is no merit in appellant's petition for rehearing, confined as it is to a
detailed reargument of points expressly considered in our opinion upon the merits, to all
of which we adhere.
for rehearing, confined as it is to a detailed reargument of points expressly considered in our
opinion upon the merits, to all of which we adhere. We would ordinarily, therefore, be
disposed to deny rehearing without opinion were it not for the fact that upon one point we
feel further expression might prove helpful and clarifying. In questioning our statement that
should we have been disposed to hold the judgment to be inadequate, the proper remedy
would be to remand for new trial, appellant has wholly misconceived the nature of action
taken by this court in certain cases. Lest that misconception prove general, this opinion is
written.
Cutler v. Pittsburg Silver Peak Gold Mining Co., 34 Nev. 45, 116 P. 418; Konig v.
Nevada-California-Oregon Ry., 36 Nev. 181, 135 P. 141, and Knock v. Tonopah & Goldfield
Ry. Co., 38 Nev. 143, 145 P. 939, L.R.A. 1915F, 3, were cases in which this court determined
that damages were excessive. This court did not, however, as asserted by appellant, modify
the judgment in accordance with its views as to what was suitable. On the contrary, the effect
of the action taken was to reverse and remand for new trial with provision made for an
alternative to new trial optional with the plaintiff (the party unfavorably affected). As such
alternative the court in effect authorized the plaintiff to make partial remission of judgment
and ordered that if such remission were made, the judgment be modified and reduced
accordingly and as so modified be affirmed. This is a far different thing from the outright
modification which appellant seeks of this court. See: Ann. 53 A.L.R. 779; 95 A.L.R. 1163.
As stated by the editors in the earlier annotation:
[Headnote 1]
The authorities, however, unanimously hold that a court is powerless to reduce the verdict
of the jury in an action for unliquidated damages and render judgment for a less amount,
unless the party in whose favor the verdict was rendered consents to the reduction, since a
reduction under such circumstances invades the province of the jury, the proper course, if
a remittitur [reduction] is refused, being to set aside the verdict and award a new trial."
a reduction under such circumstances invades the province of the jury, the proper course, if a
remittitur [reduction] is refused, being to set aside the verdict and award a new trial.
In Campbell v. Sutliff, 193 Wis. 370, 214 N.W. 374, 378, 53 A.L.R. 771, although the
proof established without controversy that the plaintiff was entitled to damages in some
amount for pain and suffering, the jury allowed nothing for that element. The trial court then
fixed such damages at $50. The opinion stated:
But in the case at bar the court has gone outside the realm of established practice and
assessed the damages for pain and suffering as a jury might have done, and entered judgment
for such amount without giving either party the option to consent to the entry of such
judgment or to submit to a new trial. Where damages in tort have been assessed by a jury, no
court, upon a motion for a new trial, is authorized, according to its own estimate of the
amount of damages which the plaintiff ought to have recovered, to enter an absolute
judgment for any other sum than that assessed by the jury.' Kennon v. Gilmer, 131 U.S. 22,
29, 9 S.Ct. 696, 699, 33 L.Ed. 110, 113, 114. Such an order clearly invades the province of
the jury, * * *. Also: Sigol v. Kaplan, 147 Wash. 269, 266 P. 154.
[Headnote 2]
The proper remedy, then, as we stated, is to remand for new trial. Under the circumstances
of each case (that remedy being available) the court may, as an alternative, consider the
desirability of a consent modification by the party unfavorably affected. As stated in our
opinion on the merits, however, the remedy of new trial is not available here.
Rehearing denied.
____________
69 Nev. 300, 300 (1952) City of Reno v. Fields
CITY OF RENO, NEVADA, a Municipal Corporation, and GEORGE COOK, Appellants, v.
WILLIAM E. FIELDS and PHYLLIS H. FIELDS, Husband and Wife, Respondents.
No. 3709
November 13, 1952. 250 P.2d 140.
Appeal from a judgment of the Second Judicial District Court, Washoe County; Harold O.
Taber, Judge, department No. 3. Action against city and another to enjoin operation and
maintenance of city dump as a nuisance near plaintiffs' residential property and for resulting
damages. From a judgment on a verdict for plaintiffs and denial of defendants' motion for
new trial, defendants appealed. The Supreme Court, Badt, C. J., held that amended complaint
was subject to further amendment over objection that amendment would change cause of
action for damage to realty to cause of action for personal injuries for which no claim had
been presented to city.
Affirmed.
Woodburn, Forman & Woodburn, of Reno, for Appellants.
Martin J. Scanlan, of Reno, for Respondents.
1. Municipal Corporations.
Amended complaint, based on claim presented to city for damages resulting from alleged maintenance of
city dump as a nuisance near plaintiffs' residential property, was subject to further amendment over
objection that amendment would change cause of action for damage to realty to cause of action for
personal injuries for which no claim had been presented to city. N.C.L.1929, secs. 1259, 1260.
One purpose of statutes requiring claims against incorporated cities to be presented to city council within
six months is to give city opportunity to investigate the facts surrounding such claim. N.C.L.1929, secs.
1259, 1260.
Claims against city need not be drawn with the technical nicety of a complaint and where the facts
constituting such claim are not disputed, at least as great liberality should be afforded the claim as is
afforded by courts in permitting amendment of pleadings in analogous instances.
afforded the claim as is afforded by courts in permitting amendment of pleadings in analogous instances.
N.C.L.1929, secs. 1259, 1260.
4. Action.
A cause of action for damage to person or property is the wrong done, not the measure of compensation
therefor or the character of the relief sought.
OPINION
William E. Fields and Phyllis H. Fields, his wife, own residential property east of the city
dump maintained by the city of Reno, and they sought an injunction against the operation and
maintenance of such dump as a nuisance and for resulting damages. They attached to their
amended complaint a copy of their claim for such damages theretofore presented to the city.
Such claim recited the plaintiffs' ownership of the property described in detail, alleged the
ownership by the city of certain lands in the same section of land and alleged that the city,
since December, 1946, and to date, has been maintaining and operating a dumping grounds
thereon in conjunction with one George Cook as lessee since August 9, 1949, and with other
lessees prior thereto, and by the city of Reno independently at other times, and have been
maintaining and operating said dumping grounds for waste material consisting of paper,
garbage, decayed vegetable and animal matter, trash and other refuse, and has allowed
residents of the city of Reno and Washoe county to deposit waste material such as
enumerated above and without any adequate plan for completely destroying or disposing of
the same by incinerator, chemicals, burial or other destroying facilities, or to sufficiently
enclose and confine such waste material within the confines of said dumping grounds, and in
consequence paper, weeds and much other loose material in the form of dirt and dust has
been and frequently is, with heavy high wind, blown and carried therefrom and upon the
property of the undersigned, thereby causing the undersigned much annoyance,
inconvenience and labor in unsuccessfully attempting to keep their home, premises and
property free and clear of any such waste material, refuse and other things, and which
has created and continues to create an unsanitary, unhealthy and unsightly condition of
said premises, and the dust storms may carry germs and other deleterious and poisonous
matter and which is a menace to the health of the undersigned, their child and other
persons living on the premises."
and upon the property of the undersigned, thereby causing the undersigned much annoyance,
property free and clear of any such waste material, refuse and other things, and which has
created and continues to create an unsanitary, unhealthy and unsightly condition of said
premises, and the dust storms may carry germs and other deleterious and poisonous matter
and which is a menace to the health of the undersigned, their child and other persons living
on the premises. The claimants then estimated their labor in cleaning their premises as
comprising 1,224 hours at $1 per hour, amounting to $1,224 and that the value of the
property owned by the undersigned, together with the improvements thereon, diminished in
value at least $5,000, to claimants' total damage in the sum of $6,224. The claim was duly
verified and filed, was disallowed by the city board and the action commenced. As an
affirmative defense the city pleaded failure of compliance with the municipal claim statute,
hereinafter quoted in full.
On the morning of the day set for the jury trial, pursuant to notice of motion filed the same
day, the plaintiffs presented a motion to amend their amended complaint in the following
respects: Paragraph VII of the amended complaint read as follows: That the creation and
continuation of said dump grounds and the manner in which the refuse and waste material is
partially disposed of and the smoke and smells arising from and being blown upon the
residential property of plaintiff has depreciated the value of said property to the extent of
$5,000.
The proposed further amendment was to make paragraph VII read as follows: That the
operation and maintenance of said dump grounds and the manner in which the refuse and
waste material was partially disposed of, and the refuse and waste material and the smoke and
odors from said dump grounds being blown upon the residential property of plaintiffs' has
caused plaintiffs annoyance, discomfort and inconvenience, and has deprived plaintiffs of
the comfortable enjoyment of the property, and has made their premises unsightly and
objectionable to their senses of sight and smell and a menace to their health, to the
plaintiffs' damage in the sum of $5,000."
plaintiffs annoyance, discomfort and inconvenience, and has deprived plaintiffs of the
comfortable enjoyment of the property, and has made their premises unsightly and
objectionable to their senses of sight and smell and a menace to their health, to the plaintiffs'
damage in the sum of $5,000.
The item of the prayer for $5,000 damages for creating, maintaining and operating a
nuisance and for damages caused to plaintiffs and plaintiffs' property was also sought to be
amended to claim $5,000 damages for creating, maintaining and operating the municipal
dump of the city of Reno, Nevada, as a nuisance, and to plaintiffs' damage for deprivation of
the comfortable enjoyment of their property.
Both defendants objected to the motion to amend, contending that, if granted, it would
substitute a cause of action for personal injuries for a cause of action for property damage and
that no claim was ever presented to the city of Reno for that character of injury as required by
sec. 1259, N.C.L.1929. The motion to amend was granted. The respective answers were
amended to reflect appropriate denials and the first affirmative defense of the city was
amended so as to plead the provisions of said section as a bar to plaintiffs' amended demand
for damages. No objection to the amendment was made in the trial court upon the ground of
its late presentation nor was any prejudice alleged by reason thereof nor was a continuance
sought, and no error is assigned in this court growing out of the late presentation of the
motion to amend.
The jury returned a verdict of $1,000 in favor of plaintiffs. Judgment was entered thereon
and defendants' motion for new trial denied. Appellants contend first that secs. 1259 and
1260, N.C.L.1929, make the filing of a claim with the city a condition precedent to suit; or, in
the alternative, that the failure to file such claim may be asserted as an affirmative defense to
the action. They further contend that the claim as filed with the city was one for damages to
their real estate; that the amendment permitted by the court to the amended complaint as
above recited permitted the plaintiffs to state a new and different cause of action,
namely, a cause of action for personal injuries; that as no claim had been filed with the
city for such personal injuries, the action must fail.
that the amendment permitted by the court to the amended complaint as above recited
permitted the plaintiffs to state a new and different cause of action, namely, a cause of action
for personal injuries; that as no claim had been filed with the city for such personal injuries,
the action must fail.
Sections 1259 and 1260, N.C.L.1929, read as follows:
All demands and accounts and all claims of whatsoever kind, character or nature, or
however the same may have originated against any incorporated city in this state, must be
presented to the city council of said city, duly authenticated, within six months from the time
such demands or accounts became due or payable, and within six months from the time the
acts from which said claims originated shall happen.
No demand, account, or such claim against any incorporated city in this state shall be
audited, considered, allowed or paid by the city council or any officer or officers of said
incorporated city unless the provision of section 1 of this act shall have been strictly complied
with.
As we are satisfied that the claim as filed with the city was in compliance with the statute
and that the amended complaint based upon such claim was properly subject to amendment,
in the discretion of the trial court, with reference to the nature of the damage suffered by the
plaintiffs and the measure thereof, and as such determination is decisive of the appeal, it will
be the only point necessary for our consideration. The gravamen of the claim filed with the
city was the maintenance of the nuisance described. We need not repeat the descriptive
language used. The result was described as causing the claimants much annoyance,
property free and clear of such waste material, rubbish and other things. This was further
recited to create an unsanitary, unhealthy and unsightly condition of the premises, and the
dust storms carrying germs and other deleterious and poisonous matter were said to be a
menace to the health of the plaintiffs, their child and other persons living on the premises.
storms carrying germs and other deleterious and poisonous matter were said to be a menace to
the health of the plaintiffs, their child and other persons living on the premises. The amended
complaint repeated these allegations. It is true that paragraph VII of the amended complaint
said that the acts of the city had depreciated the value of the plaintiffs' property to the extent
of $5,000, while the amendment to paragraph VII claimed that the situation had deprived the
plaintiffs of the comfortable enjoyment of the property and made the same unsightly and
objectionable to their senses of sight and smell and a menace to their health to their damage
in the sum of $5,000. To maintain that plaintiffs cannot recover because their claim filed with
the city was one for damage to real estate while their present amendment is a claim for
personal injuries is to substitute form for substance, and technical rules of pleading for
modern code requirements to state the facts constituting a cause of action. With rare
exceptions the courts have overwhelmingly permitted amendment under similar
circumstances.
[Headnotes 1, 2]
Appellants, conceding that the city was given notice of the alleged nuisance, insist that
they were not given notice of plaintiffs' demand for damages for injuries to health or for
annoyance, discomfort and loss of comfortable enjoyment of the property. Correctly stating
that one of the purposes of the statute is to give the city an opportunity to investigate the
facts surrounding the claim it is then contended that an intelligent investigation of the
claimed property depreciation would require the services of a qualified man regarding
property values, whereas under the amendment permitted by the court a different line of
investigation would have been obvious, such as the services of a doctor or persons connected
with the health and sanitation departments. Appellants say that such an investigation might
possibly have resulted in a recommendation for the payment of some amount.
some amount. We are not impressed by this argument. The wording of the claim as filed, the
wording of the amended complaint and the wording of the further amendment to paragraph
VII are all consistent with one statement of facts describing the nuisance as maintained by the
city and the effects thereof upon plaintiffs and the property of plaintiffs. Precisely the same
investigation was called for. If the city thought that the annoyance, discomfort,
inconvenience, deprivation of comfortable enjoyment, offensiveness to sight and smell and
menace to health resulting from the nuisance required a further and different investigation
than that called for by the allegations of the claim that the nuisance resulted in depreciating
the value of their property, it could have asked the court for a continuance for such purpose. It
did not do so and the reason is obvious. It had already been apprised of all of the facts of the
claim, and if the facts were as alleged, there remained for determination only the legal
liability of the city and the measure of plaintiffs' damagethe injunctive feature of the relief
sought being eliminated from consideration.
[Headnotes 3, 4]
Claims filed under statutes such as these need not be drawn with the technical nicety of a
complaint. More v. City of San Bernardino, 118 Cal.App. 732, 5 P.2d 661. And where the
facts constituting the claim are not changed, at least as great a liberality should be afforded
the claim as is afforded by the courts in permitting amendment of pleadings in analogous
instances. Cook v. City of Yakima, 21 Wash.2d 810, 153 P.2d 279, 281, refers to numerous
Washington cases and quotes particularly from Frasier v. Cowlitz County, 67 Wash. 312, 121
P. 459, as follows:
* * * The purpose of these provisions, as applied to a claim arising from a tort, is to
enable the municipality to investigate both the claim and the claimant while the occurrence is
recent and the evidence available, to the end that it may protect itself against spurious and
unjust claims.
the end that it may protect itself against spurious and unjust claims. When the claim
substantially complies with the legislative requirement and these ends are subserved, the
claim has accomplished the purpose intended.
In Friederichsen v. Renard, 247 U.S. 207, 38 S.Ct. 450, 451, 62 L.Ed. 1075, the court said:
The cause of action is the wrong done, not the measure of compensation for it, or the
character of the relief sought, and, considered as a matter of substance, the change in the
statement of that wrong in the amended petition cannot, in any just sense, be considered a
new or different cause of action. See also Finzer v. Peter, 120 Neb. 389, 232 N.W. 762, 73
A.L.R. 1170, citing numerous cases in which, under widely varying conditions, amendments
were permitted to change the nature of the relief sought or to set up a different measure of
damages. In Weyant v. Utah Savings and Trust Co., 54 Utah 181, 182 P. 189, 199, 9 A.L.R.
1119, the court said: The respondents had but one state of facts to present to the court, and it
is upon those facts that relief, if any is granted, must be based. It is the facts that are alleged
and established at the trial, when applied to the law, that determine the nature and extent of
the relief that a court may grant, and not the form of the action. And it was said in Scanlon v.
Galveston H. & S. A. Ry. Co., Tex.Civ.App., 86 S.W. 930, that when the case relied on for a
recovery is not changed, the cause of action is not changed by an amendment which claims
merely a different measure of damages. Numerous other cases are to like effect.
Appellants rely on Coen v. City of Los Angeles, 70 Cal.App. 752, 234 P. 426, in which an
original claim based upon plaintiff's alleged eviction from his property by the defendant was
held not to support a subsequent suit in which the facts showed that plaintiff had not been
evicted, had not been ousted from the premises, was still in possession of the property and
actually obtained a judgment (reversed by the appellate court) which did not even award him
possession of the property.
which did not even award him possession of the property. The court, however, recognized the
rule that the claim statute has been met where the claim sued upon is substantially the claim
first presented to the city and indicated that if the court's judgment had been for damages for a
trespass, even under the claim as filed based upon an eviction, and if it had limited such
damages to those accrued up to the date of the filing of the claim with the city, such judgment
would have been affirmed. It is our opinion that the case supports our theory.
The parties have briefed and argued the question as to whether a claim against the city for
damages arising out of facts constituting a nuisance must be filed under the requirements of
sec. 1259, N.C.L.1929. As we have concluded that such a claim was in any event filed, it
becomes unnecessary for us to discuss such proposition.
It is our opinion that the court was not in error in permitting plaintiffs to amend their
amended complaint in the manner described, nor was it in error in denying defendants'
motion for new trial upon the contention that the plaintiffs had not presented to the city a
claim for damages for personal injuries.
The judgment and the order denying the motion for new trial are affirmed with costs.
____________
69 Nev. 309, 309 (1952) Pfister v. Shelton
FERN PFISTER, Appellant v. GORDON G. SHELTON, WESTERNER CLUB, a
Copartnership, CATHERINE HORDEN, and E. GEORGETTI, Respondents.
No. 3706
November 24, 1952. 250 P.2d 239.
department No. 2.
Personal injury action. From a judgment for defendants, plaintiff appealed, and from order
of trial court denying motion for new trial. The Supreme Court, Merrill, J., held that upon the
record before them it was impossible to ascertain that any error which might have been
committed was prejudicial to the substantial rights of the defendants.
Affirmed.
L. O. Hawkins and Gordon L. Hawkins, of Las Vegas, for Appellant.
Morse & Graves, of Las Vegas, for Respondent Gordon G. Shelton.
Taylor & Gubler, of Las Vegas, for Respondents Westerner Club, a copartnership,
Catherine Horden, and E. Georgetti.
A judgment will not be reversed by reason of an erroneous instruction, unless upon consideration of the
entire case, including the evidence, it appears that such error has resulted in a miscarriage of justice.
Where evidence of asserted negligence of defendant and contributory negligence of plaintiff did not
appear in record on review, it could not be determined that contributory negligence instruction, even if
erroneous, resulted in misleading the jury upon a substantial point and was prejudicial.
Presumption of prejudice may be proper in cases where the record of the evidence discloses that the
erroneous ruling may have affected the verdict but the presumption cannot stand in place of a missing
record.
OPINION
This is an action brought by appellant as plaintiff for personal injuries resulting from
negligence. The verdict of the jury and judgment of the court below were for respondents,
defendants below. This appeal is from that judgment and from order of the trial court denying
motion for new trial.
The errors assigned all relate to instructions given to the jury by the trial court. Many
separate points are raised in an effort to show that certain instructions do not properly state
the law or might tend to mislead or confuse the jury. We need not discuss these points
separately or specifically. A general disposition can be made on the basis that upon the record
before us it is impossible to ascertain that any error which may have been committed was
prejudicial to the substantial rights of the appellant. The bill of exceptions before us contains
no record or statement of the evidence upon the basis of which the jury's verdict was
rendered.
Of the points raised the most serious (and which we therefore use as exemplary of our
disposition of all points presented) relates to an asserted conflict between two instructions
dealing with matters of the preponderance of the evidence and burden of proof with respect to
the defense of contributory negligence. It is contended that one instruction properly but
incompletely states the law; that the other erroneously states the law contrary to the statement
contained in the first; that this conflict must necessarily have confused and misled the jury.
[Headnote 1]
It has frequently been stated that a judgment will not be reversed by reason of an
erroneous instruction, unless upon a consideration of the entire case, including the evidence,
it shall appear that such error has resulted in a miscarriage of justice. Shuey v. Asbury, 5
Cal. 2d 712, 55 P.2d 1160, 1161; Wood v. Moore, 64 Cal.App.
2d 144, 148 P.2d 91; Hilbert v. Olney, 17 Cal.App.2d 135, 61 P.2d 941.
[Headnote 2]
It appears from the pleadings that the asserted negligence of the respondents (as a result of
which appellant alleged that she fell and was injured) consisted in their failure to remove
from a pedestrian walk abutting a construction area small particles and pieces of rock, gravel
or grains of sand or similar debris. Respondents denied negligence and further asserted that
the walk in question was barricaded and that appellant knowingly had crossed the barricade in
order to obtain access to the walk. In the absence of the evidence, the very nature of the
alleged negligence and of the affirmative defense thereto renders it impossible for us to state
that the asserted error (if, indeed, it were error) resulted in the misleading of the jury upon a
material and substantial point and was prejudicial.
It is entirely possible that the evidence was clear to the effect that respondents were not
themselves negligent; in which event error relating to an instruction upon contributory
negligence could not conceivably have been prejudicial. It is entirely possible that, even were
contributory negligence a factor in the jury's decision, the evidence upon that point rendered
the case so clear as to eliminate any need to resort to a determination of questions bearing
upon the preponderance of the evidence or burden of proof. See: Wood v. Moore, supra.
These are possibilities which, in the light of the pleadings, cannot be dismissed as improbable
or remote. In the absence of any showing as to the existence or degree of conflict in the
evidence upon these essential issues, it is impossible for us to determine prejudice. Cf.
Mikulich v. Carner, 69 Nev. 50, 240 P.2d 873; State v. Kassabian, 69 Nev. 146, 243 P.2d
264. Nor, we feel, may prejudice be presumed.
[Headnote 3]
Such a presumption may be proper in cases where the record of the evidence discloses that
the erroneous ruling may have affected the verdict."
ruling may have affected the verdict. People v. Bonier, 179 N.Y. 315, 72 N.E. 226, 229, 103
Am.St.Rep. 880; See: 3 Am.Jur. 493, Appeal and Error, sec. 926. A presumption of
prejudice, however, in our view should not be called blindly to stand in place of a missing
record which, if before us, might well speak to the contrary. Ross v. Kay Copper Co., 20
Ariz. 576, 184 P. 978; Town of Leroy v. M'Connell, 8 Kan. 273; Morgan v. Bankers Trust
Co., 63 Wash. 476, 115 P. 1047; Wood v. Wood, 25 Wyo. 26, 164 P. 844. We therefore hold
that reversible error has not been demonstrated by appellant.
The judgment and order of the trial court are affirmed with costs.
____________
VERN R. WAITE, Appellant, v. HOWARD
BURGESS, Respondent.
No. 3707
December 1, 1952. 250 P.2d 919.
department No. 2.
Action for work performed and materials furnished in construction of dwelling house and
garage, wherein defendant interposed separate and affirmative defense of alleged failure of
plaintiff to be duly licensed contractor. From a judgment in favor of plaintiff, defendant
appealed upon the judgment roll alone. The Supreme Court, Eather, J., held that the findings
were authorized by the pleadings and supported the judgment rendered.
Affirmed.
See also 69 Nev. 230, 245 P.2d 994.
George E. Franklin, Jr., of Las Vegas, for Appellant.
Hawkins. Cannon and Coulthard, of Las Vegas, for Respondent.
Where appeal was upon judgment roll alone so that supreme court had no evidence before it, it would be
guided by the findings of fact and conclusions of law filed by the presiding judge in the lower court.
2. Licenses.
In action for work performed and materials furnished in construction of dwelling house and garage,
wherein defendant pleaded separate and affirmative defense that plaintiff was not licensed contractor and
builder, findings were authorized by the pleadings and supported judgment rendered in favor of plaintiff.
N.C.L.1943-1949 Supp., sec. 1474.32A.
Where appeal is upon the judgment roll, without evidence for the supreme court, every intendment must
be drawn in favor of the judgment.
OPINION
Howard Burgess, hereinafter called plaintiff, brought suit to recover the sum of $4,023.95
for work performed and materials furnished Vern R. Waite, hereinafter called defendant, in
the construction of a dwelling house and garage in Las Vegas, Nevada.
The amended complaint after the usual formal matters, alleged that on or between August
15, 1948, and December 31, 1948, at the special instance and request of defendant, plaintiff
performed work, labor and services for the defendant in the construction of a dwelling house
and garage, and also purchased materials and supplies to be used and which were used in said
construction, and employed labor to work on said construction; that there now remains due
and owing from the defendant to plaintiff on said materials, supplies and labor, the unpaid
balance of $4,023.95.
Appellant, defendant in the lower court, states that the entire basis of the appeal is the
contention that respondent, plaintiff in the lower court, failed wholly and completely to
comply with sec. 1474.32A, N.C.L. 1943-1949 Supp., and is therefore prevented from
bringing and maintaining the within action. That section deals with the necessity for holding
a contractor's license.
deals with the necessity for holding a contractor's license.
The action was tried without a jury and on February 29, 1952, judgment was rendered in
favor of the plaintiff. From that judgment this appeal is taken.
The parties stipulated to waive oral argument and to submit the appeal on briefs, and it
was so ordered.
[Headnote 1]
The appeal is upon the judgment roll alone so we do not have any evidence before us.
Therefore it is necessary for us to be guided by the findings of fact and conclusions of law
filed by the presiding judge in the lower court.
[Headnote 2]
The court found that the plaintiff was duly licensed by the Nevada state contractors board
as a contractor and builder within the State of Nevada during and for the year 1948, said
license being license No. 1937; that on and between August 16, 1948, and December 31,
1948, plaintiff performed work, labor and services for the defendant in and about the
construction of a dwelling house and garage; that said services were performed by said
plaintiff from August 16, 1948 to December 31, 1948;
That the defendant failed to establish or prove that plaintiff was prohibited from bringing
or maintaining the cause of action set forth in plaintiff's amended complaint as alleged in said
defendant's separate, further and affirmative defense set forth in his answer to plaintiff's
amended complaint, and defendant is entitled to no relief by reason of the matters and things
alleged in his answer.
In our opinion the findings in this case are authorized by the pleadings and support the
judgment rendered, since the appeal is on the judgment roll only.
As was stated in Hunter v. Sutton, 45 Nev. 430, 439, 205 P. 785, 787:
The findings follow closely the averments of the complaint, and they contain specific
findings negativing the facts alleged in the answer of the defendant; they also seem to
reflect the opinion of the trial court upon the evidence, the weight of the testimony, and
its views as to the law applicable thereto."
facts alleged in the answer of the defendant; they also seem to reflect the opinion of the trial
court upon the evidence, the weight of the testimony, and its views as to the law applicable
thereto.
[Headnote 3]
In Robison v. Mathis, 49 Nev. 35, 45, 234 P. 690, 693, and again in Bushard and Redfield
v. Washoe County, 68 Nev. 222, 231, 236 P.2d 793, 797, the court stated:
* * * as this appeal is on the judgment roll the evidence is not before us, and every
intendment must be drawn in favor of the judgment.
For the foregoing reasons the judgment of the trial court is affirmed and respondent is
awarded his costs.
December 19, 1952.
Per Curiam:
Rehearing denied.
____________
69 Nev. 315, 315 (1952) Waters v. Harper
MARY I. WATERS, Appellant, v. C. A. HARPER, SEYMOUR J. HARPER,
EVOLYN REED TALBOT and ESTHER DENNISON, Respondents.
No. 3704
December 4, 1952. 250 P.2d 915.
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Action to establish a constructive trust of properties held and claimed by defendant under a
deed and bill of sale. From a judgment adverse to the defendant, the defendant appealed. The
Supreme Court, Merrill, J., held that evidence sustained finding that plaintiff's decedent, who
held title to property before death by virtue of a joint and mutual will executed by decedent
and his wife in favor of themselves and plaintiffs after death of survivor, conveyed property
to defendant with intent to defeat agreement by transfer to defendant in lieu of
testamentary disposition, and not with intent to provide for decedent's needs and comfort
during decedent's lifetime, and conveyances were breach of agreement.
intent to defeat agreement by transfer to defendant in lieu of testamentary disposition, and not
with intent to provide for decedent's needs and comfort during decedent's lifetime, and
conveyances were breach of agreement.
Judgment affirmed.
F. Grant Sawyer, of Elko, for Appellant.
Orville R. Wilson, of Elko, and Kenneth L. Mann, of Elko, for Respondents.
1. Wills.
Parties may bind themselves to leave property in an agreed manner.
2. Wills.
Whether testators who have executed a joint will, or separate wills, containing mutual and reciprocal
provisions, are restricted from disposing of property during their respective lifetimes is a question primarily
of construction of agreement under which will or wills were executed.
3. Wills.
Generally courts do not consider that parties to a joint and mutual will intended to restrict either party
from disposing of property in good faith by transfers effective during his or her lifetime, unless a plain
intention to such effect is expressed in will or in contract pursuant to which it was executed.
4. Wills.
Evidence sustained finding that a decedent, who had title to property before death by virtue of a joint and
mutual will executed by decedent and his wife in favor of themselves and their children after death of
survivor, conveyed property to defendant with intent to defeat agreement by transfer in lieu of testamentary
disposition, and not with intent to provide for decedent's needs and comfort during decedent's lifetime, and
conveyances were breach of agreement.
5. Vendor and Purchaser.
Services rendered by defendant to decedent during lifetime of decedent, for which services defendant had
been paid, could not be considered as consideration passing from defendant to decedent for deed and bill of
sale by which decedent transferred property to defendant during decedent's lifetime.
6. Trusts.
In suit to establish a constructive trust in plaintiffs' favor of properties which plaintiffs' decedent
transferred to defendant during decedent's lifetime in breach of a contract between decedent and decedent's
wife evidenced by joint and mutual will executed by decedent and his wife, evidence
sustained finding that defendant who cared for decedent until death of decedent
gave no consideration for transfer, so that equitable rights of plaintiffs who were
entitled to the property under joint and mutual will were not cut off.
will executed by decedent and his wife, evidence sustained finding that defendant who cared for decedent
until death of decedent gave no consideration for transfer, so that equitable rights of plaintiffs who were
entitled to the property under joint and mutual will were not cut off.
7. Wills.
Where parties bind themselves to leave property in an agreed manner, beneficiaries of such agreement
may enforce agreement by suit in equity.
8. Trusts.
Where decedent breached contract evidenced by joint and mutual will executed by decedent before his
death and by decedent's wife, whereunder plaintiffs were to take properties upon death of survivor of
decedent and his wife, the breach being accomplished by execution by decedent of a codicil bequeathing
properties to defendant who was caring for decedent, and by execution by decedent of a deed and bill of
sale in favor of defendant, plaintiffs, as beneficiaries of breached contract, were entitled to maintain suit
against defendant to have a trust in favor of plaintiffs impressed upon such property without awaiting
probate of will and codicil and distribution of property to defendant thereunder.
OPINION
This is a suit brought by respondents as plaintiffs below for the establishment of a
constructive trust of certain properties held and claimed by appellant under deed and bill of
sale. The suit was tried to the court with an advisory jury which, however, upon completion
of the case, was not utilized by the court but was dismissed. The court then made if findings
and entered judgment in favor of respondents that the deed and bill of sale under which
appellant claimed be cancelled and that appellant execute a quitclaim deed and bill of sale of
such property to respondents. From that judgment and from order denying new trial this
appeal is taken.
The facts show that in 1943 A. L. Harper and Elizabeth Harper, his wife, possessing an
estate consisting entirely of community property, executed a joint and mutual will. It provided
that upon the death of either of them, all property then possessed should go to the survivor
"to use the same as such survivor may see fit and become the property of said survivor
absolutely."
of them, all property then possessed should go to the survivor to use the same as such
survivor may see fit and become the property of said survivor absolutely. It then provided
that any property which may be owned by the survivor at his or her death should go to the
four children of the parties (the respondents herein). The will then provided: In order to
deprive either of us of the right to revoke this our joint and mutual will, we hereby declare
that this will is executed in pursuance of an agreement and a contract between us, and that
each promise and agreement of each of us is a consideration for each promise and agreement
of each of us to the other; and it is the agreement and contract between each of us that this
will is and shall be irrevocable.
Elizabeth Harper died in 1947 and A. L. Harper entered into sole possession and control of
the properties of the estate. In July, 1948, appellant was employed by Harper as housekeeper
and practical nurse for $25 a week plus room and meals and continued to serve in such
capacity until Harper's death. In October, 1950, Harper executed three instruments: a deed to
appellant of the house in which he was living; a bill of sale of the household furnishings
located in that home; a codicil to the joint will bequeathing to appellant the house and
furnishings covered by the deed and bill of sale in grateful appreciation for the services
rendered to me by Mary I. Waters. The deed and bill of sale were duly recorded and the
documents delivered to appellant.
On February 21, 1951, Harper died. Respondents were notified by appellant of her
contended ownership and this suit was brought. Incompetency of Harper to execute the
transfers and undue influence brought to bear upon him were both asserted by respondents.
These matters were, however, dismissed from the case by action of the trial court and we
proceed upon the assumption that no basis existed for such assertions.
Three principal questions are presented by this appeal. First: whether Harper was
precluded by contract from making the transfers to appellant.
[Headnote 1]
It is elementary that parties may bind themselves to leave property in an agreed manner.
See: 57 Am.Jur. 468, 469 (Wills, secs. 694, 695). It is clear from the express language of the
will that such an agreement had been reached by the parties. What is not clear is whether that
agreement precluded alienation of estate property by the survivor during his lifetime. The will
contains no express prohibition of alienation.
[Headnotes 2, 3]
The general rule relative to the right of alienation in such cases is expressed in 57 Am.Jur.
479 (Wills, sec. 710) as follows: Whether testators who have executed a joint will, or
separate wills, containing mutual and reciprocal provisions are restricted from disposing of
the property during their respective lifetimes is a question primarily of the construction of the
agreement under which the will or wills were executed. It may be stated generally that the
courts do not consider that the parties to a joint and mutual will intended to restrict either
party from disposing of property in good faith by transfers effective during his or her lifetime,
unless a plain intention to this effect is expressed in the will or in the contract pursuant to
which it was executed.
We have no quarrel with the rule as so expressed. The essential question in our view is
whether the transfer here considered can be characterized as one in good faith. See: Ann. 108
A.L.R. 867. The testator, having contracted against testamentary disposition save in the
agreed manner, can hardly be said to have acted in good faith if the purpose of the alienation
was to defeat the agreement by transfer in lieu of testamentary disposition; and this,
regardless of apparent justification for his desire to depart from the terms of the will. On the
other hand, if the true purpose of the alienation was to provide for his needs and comfort
during his lifetime, good faith could hardly be denied. The essential determination, we feel, is
between these two situations.
That determination has been made by the trial court which expressly found as fact that
the purpose of the alienation was to defeat the agreement and, in contemplation of death
and in lieu of testamentary disposition, to provide for appellant during the testator's
lifetime.
which expressly found as fact that the purpose of the alienation was to defeat the agreement
and, in contemplation of death and in lieu of testamentary disposition, to provide for
appellant during the testator's lifetime. If the record provides support for this finding, we shall
not be disposed to disturb it.
Error has been assigned relative to testimony admitted by the court respecting
conversations had with the deceased. We need not decide upon this matter since, in our view,
the record provides support for the court's finding without resort to such testimony.
Appellant contends that a contract existed between herself and Harper by the terms of
which she agreed to care for Harper during his lifetime in exchange for the property following
his death. No direct evidence of such an agreement appears in the record (sec. 8966, N.C.L.
1929, prohibits a person from testifying when the other party to the transaction is dead) and
the following undisputed facts render unlikely its existence in good faith.
At the time of execution of the transfers Harper was 86 years of age, in poor health,
crippled and feeble. The transferred property was of a value in excess of $12,000. Appellant
had been caring for Harper for wages of $25 a week plus room and meals. It would appear
unlikely that it had become reasonably necessary to make such substantial provision in order
to continue to receive her services. There had been disputes and bickerings between Harper
and certain of his children. He had revoked, as to one son, the right of access to his
safe-deposit vault and expressed suspicion as to the motives of that son's advice on estate
matters. He had expressed a desire to exclude a daughter from his will and had obtained legal
advice as to his right to do so. The will upon its face showed many erasures indicating
dissatisfaction with certain of its provisions. The language of the codicil itself indicated
considerations of appreciation rather than a contractual obligation.
All of this would tend strongly to indicate that Harper's true purpose in making the
transfers was to effect, what then seemed to him under the circumstances then existing, a
more proper and equitable division of his estate among those deserving recognition. This
right, regardless of apparent justification for its exercise, no longer remained to him.
[Headnote 4]
We conclude that the record supports the trial court in its finding in this regard; that, upon
the first question before us, the transfers to appellant were in breach of the contract between
Harper and his wife.
The second question here presented is whether appellant in good faith gave such
consideration for the deed and bill of sale as to cut off respondents' equitable rights arising
from Harper's breach of contract. The trial court found that appellant had no knowledge of the
existence of the contract. It further found, however, that appellant gave no consideration for
the transfer.
[Headnotes 5, 6]
The record is lacking in direct evidence upon the point of consideration. Appellant relies
upon the presumption of consideration and prima-facie proof thereof established by the
formal recitals of consideration in the deed and bill of sale. As against such presumption we
feel that the trial court is supported in its finding by the language of the codicil executed at
substantially the same time as the deed and bill of sale. The codicil recites the execution of
the other instruments and states that testamentary provision is made in event those transfers,
for any reason, should be held invalid. It is hardly reasonable to suppose that the
consideration for the transfers and for the testamentary disposition would not be the same.
The consideration recited in the codicil is clearly expressed: * * * in grateful appreciation for
the services rendered to me. For those services appellant had already been compensated.
They may not be regarded as consideration passing from her to Harper.
to Harper. See: Goldsworthy v. Johnson, 45 Nev. 355, 374, 204 P. 505, 511.
Appellant points to evidence that after execution of the deed and bill of sale, and for the
period of three or four months until Harper's death, she received no wages. The evidence is
not positive upon this point, but in any event this fact standing alone is insufficient to warrant
rejection of the finding in question. It does not necessarily follow that appellant was obligated
by contract to provide her services without charge. Moreover, the very facts we have
mentioned as reflecting upon Harper's intent in making the transfers, would to some extent
also place appellant upon notice that any consideration given by her was wholly
disproportionate to the value received, and reflect to that extent upon the bona fides of her
position in the eyes of equity.
The final question presented is whether, at the time of bringing suit, respondents had any
existing interest upon which such suit might be based. At the time suit was commenced the
will had not been admitted to probate as Harper's will. Respondents could not, therefore,
claim as heirs or potential heirs or representatives of Harper as their rights to take under the
will had not been determined. Appellant contends that the court of equity in entertaining this
suit has usurped the functions of a probate court; that by finding, through the will itself, an
enforceable contract to exist, it has in effect admitted the will to probate and denied probate
to the codicil; that any right in respondents to claim under the instrument must await action
by the probate court upon the will and codicil.
[Headnotes 7, 8]
As we have mentioned earlier in this opinion, it is elementary that parties may bind
themselves to leave property in an agreed manner. It is likewise clear that the beneficiaries of
such an agreement may enforce it by a suit in equity. See: Ann. 169 A.L.R. 9, 55 et seq.
Respondents in this suit are not claiming under the will as heirs of Harper.
as heirs of Harper. They are claiming as beneficiaries of a contract. The will, then, in this suit
has no status as a will. It appears simply as evidence of the existence of a contract. Even
should the will be denied probate, the contractual rights of respondents would continue to
exist. Even had no will been executed, their rights (if such could otherwise be established)
would continue.
Appellant asserts the proposition that where the breach of contract consists of revocation
of a mutual will, the revoking will or codicil must first be admitted to probate before any
action may lie for specific performance or establishment of trust. Allen v. Bromberg, 147 Ala.
317, 41 S. 771. True, this suit might have awaited probate of the will and codicil and
distribution of the property to appellant thereunder. Here, however, the breach consisted not
only in execution of the codicil. It consisted also in execution of the deed and bill of sale.
Appellant now claims title by virtue of those transfers. Equity, then, need not await probate of
the codicil in order that an interest arise upon which a trust might be impressed.
Nor may it be said that the procedure here adopted permits the property to escape
administration contrary to the intent of the contract that it go by testamentary disposition. By
its judgment the trial court provided that possession of the property be delivered to Harper's
legal representative for purposes of probate.
True, if probate of the will ultimately were to be denied and the estate were to go by
intestacy, rights of others not party to this suit might thereupon arise. Such matters, however,
are clearly beyond the issues of this suit and the effectiveness of the decree rendered, which
are limited to an establishment of the right to the property involved as between appellant and
the beneficiaries of the Harper contract.
Other questions are raised by appellant's assignment of errors relative to rulings upon
evidence and to specific findings by the court which, it is contended, are not supported by
the evidence.
not supported by the evidence. In our view none of the questions so raised could materially
affect the decision of the trial court in the light of our holding upon the questions discussed.
The judgment and order are affirmed with costs.
____________
69 Nev. 324, 324 (1952) Schultz v. Provenzano
CLEVELAND SCHULTZ, Appellant, v. BERNARD
V. PROVENZANO, Respondent.
No. 3700
December 8, 1952. 251 P.2d 294.
Appeal from a judgment of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge, department No. 2.
Suit for rent. From a judgment for plaintiff, defendant appealed. The Supreme Court, Badt,
C. J., held that where court did not make findings on defendant's special defenses, the finding
of court that defendant had waived alleged breaches, set forth in defendant's special defenses,
by continuing in possession, made immaterial findings on express issues raised by special
defenses, since it is not necessary to make findings on immaterial issues.
Affirmed.
Cleveland Schultz, Jr., of Las Vegas, for Appellant.
Davis Zenoff, of Las Vegas, for Respondent.
1. Trial.
In suit for rent, where court did not make findings on tenant's special defenses, the finding of court that
tenant had waived alleged breaches set forth in tenant's special defenses, by continuing in possession, made
immaterial findings on express issues raised by special defenses, since it is not necessary to make findings
on immaterial issues.
2. Landlord and Tenant.
In action for rent, where tenant's theory of defense was that acts of landlord constituted a constructive
eviction, and pleadings and briefs indicated that so-called acts of constructive eviction
extended over a long period of time, but tenant had remained in possession and trial
court found that tenant's conduct constituted a waiver of any breaches by landlord,
whether finding was considered as finding of a waiver or a finding that tenant's
theory of constructive eviction had failed, landlord's failure to specifically plead
waiver was not fatal.
pleadings and briefs indicated that so-called acts of constructive eviction extended over a long period of
time, but tenant had remained in possession and trial court found that tenant's conduct constituted a waiver
of any breaches by landlord, whether finding was considered as finding of a waiver or a finding that
tenant's theory of constructive eviction had failed, landlord's failure to specifically plead waiver was not
fatal.
In suit for rent, where trial judge made finding of waiver by tenant of alleged breaches of lease by
landlord, and there was no transcript before supreme court, supreme court would assume that issue of
waiver was tried and evidence was introduced by plaintiff, without objection, showing conduct which
would constitute waiver, and pleading could be deemed amended to allege waiver.
Fact that trial judge held case under advisement for 11 months before making his decision and did not
comply with statute requiring court trying question of fact to make decision within 30 days after submission
did not constitute ground for reversal. N.C.L.1931-1941 Supp., sec. 8783; N.C.L.1929, sec. 8433.
Where only support for motion for new trial was affidavit by counsel for defendant purporting to show,
by a recital of events both prior and subsequent to submission of case, that trial judge must have forgotten
much of what had transpired, and affidavit also purported to recite an asserted error in ruling upon offer of
certain evidence, error assigned to denial of motion for new trial presented no ground for reversal.
OPINION
Provenzano sued Schultz for the last three months' unpaid rental at $250 a month on a
three-year written lease. From a judgment in plaintiff's favor and from the order denying
defendant's motion for new trial, the defendant has appealed. No record of the evidence
adduced at the trial is before us.
Annexed as an exhibit to plaintiff's complaint was a copy of the lease in question from
which it appeared that the leased property comprised three rooms to be used as law offices,
and that the lessor agreed that the premises should be placed in tenantable and good
condition, and would "supply without cost to the lessees water, heat, cooling and electric
current for lighting purposes," and would make all necessary repairs to the plumbing, gas,
water, steam or other pipes in or about the premises.
premises should be placed in tenantable and good condition, and would supply without cost
to the lessees water, heat, cooling and electric current for lighting purposes, and would make
all necessary repairs to the plumbing, gas, water, steam or other pipes in or about the
premises. The defendant's answer admitted the execution of the lease, but alleged that
plaintiff agreed to look to defendant and one George Rudiak for the payment by each of one
half of the rent. He admitted that he had remained in possession until the beginning of the last
three-month period and admitted the nonpayment of the rent. Other allegations of the
complaint were denied.
As a second defense, defendant alleged that he believed all rentals had been paid to
plaintiff; as a third defense, that plaintiff had agreed that defendant could surrender the
premises at any time without liability for further rental; as a fourth defense, that heat was not
furnished when required and that cooling was not furnished when required; as a fifth defense,
that the lessor neglected to furnish water or adequate current for lighting; as a sixth defense,
that the lessor had removed defendant's name from the office building directory and that
lessor had wrongfully installed unsightly water mains in one of the rooms, which prevented
the lessee from maintaining his furniture in such portion and thereby made the premises
unsuitable for law offices. The reply put all these matters in issue.
The court made general findings in favor of the plaintiff, but instead of finding specifically
on the special defenses, found as follows:
That defendant, by continuing into possession of the premises after alleged breaches of
agreement on the part of plaintiff, waived said breaches, that in the event acts of constructive
eviction existed on the part of plaintiff, defendant, by his subsequent conduct, waived the said
acts.
As a conclusion of law the court found:
That the defendant waived, by his conduct and other circumstances, any breaches of
conditions of the written lease agreement on the part of plaintiff to be performed."
circumstances, any breaches of conditions of the written lease agreement on the part of
plaintiff to be performed.
[Headnote 1]
Appellant specifies as error the failure of the court to make findings on the affirmative
defenses, and cites numerous authorities supporting the general rule that it is the duty of the
court to make findings on all of the material issues raised by the pleadings. It is unnecessary
to discuss this proposition, for the reason that the finding of waiver rendered immaterial the
findings on the express issues raised by the special defenses. It is well recognized that it is
unnecessary to make findings on immaterial issues. 24 Cal.Jur., sec. 187, 942. This has been
expressed by many courts in many ways. * * * [W]hen there are sufficient findings on issues
made in the case to support a judgment, it is immaterial that there is no finding, or an
erroneous finding, on some other issue which, if made, or differently made, would not compel
any different conclusion from that reached by the findings which were actually made.
Wolfsen v. Smyer, 178 Cal. 775, 175 P. 10, 13. The findings actually made required a
judgment in plaintiff's favor and it is evident that this could not have been changed by a
disposition, either way, of the issues raised by the special defenses. Such further findings
were therefore immaterial. Hertel v. Emireck, 178 Cal. 534, 174 P. 30. Especially must this
be so where the evidence has not been brought before this court. Id.; Gray v. Wells, 118 Cal.
11, 50 P. 23. Innumerable cases are to the same effect and need not be cited.
[Headnote 2]
But appellant contends that the finding of waiver cannot thus lightly make the other
findings immaterial, for the reason that the plaintiff's reply did not specifically plead waiver,
and that to be available as a defense, waiver must be specifically pleaded. There are many
variations to this rule and many exceptions to it and the decisions are not harmonious. The
decisions vary with the facts as to whether the estoppel or waiver be an estoppel in pais, a
waiver, an estoppel by deed, an estoppel raised by prior adjudication, etc.
the facts as to whether the estoppel or waiver be an estoppel in pais, a waiver, an estoppel by
deed, an estoppel raised by prior adjudication, etc. We need not pursue these distinctions. For
an interesting discussion see annotation at 120 A.L.R. 8. The entire theory of defendant's
defense as alleged in his answer to the complaint and as indicated by his briefs in this court
was that the acts of the plaintiff landlord constituted a constructive eviction. The evidence, as
we have noted, is not before us. But the pleadings and briefs indicate that these so-called acts
of constructive eviction extended over a long period of timepossibly throughout the entire
term of the lease. There was no eviction. Defendant elected to remain as a tenant of the
premises and continued to pay the rent until he surrendered the rooms three months before the
end of the three-year term. Under such a situation, whether considered as a waiver of the acts
complained of or simply a finding that defendant's entire theory of a constructive eviction had
failed, we cannot consider the failure to plead waiver as fatal.
[Headnote 3]
For another reason we are not impressed with this assignment of error. Without the
transcript before us we must assume that the issue of waiver was tried and evidence
introduced by the plaintiff, without objection, showing the continuous occupancy of the
premises far beyond a reasonable time within which defendant could have asserted his
constructive eviction, and that waiver thus became an issue in the case. Andrew v. Miller, 216
Iowa 1378, 250 N.W. 711. Not knowing that any objection to proof of waiver was made or
the court's attention called to the absence of a plea of waiver by proper objection to testimony,
the pleading could well be deemed amended to allege waiver. St. Paul F. & M. Ins. Co. v.
Mittendorf, 24 Okla. 651, 104 P. 354, 28 L.R.A. (N.S.) 651; Barnsdall Nat. Bank v. Dykes,
136 Okla. 226, 277 P. 219; Churchill v. Baumann, 95 Cal. 541, 30 P. 770.
[Headnote 4]
After the trial, argument and submission of the case to the court, the district judge held the
matter under advisement for over 11 months before making his decision. Appellant asserts
that this wholly unjust and unreasonable delay constituted such irregularity and abuse of
discretion that it was error for the court to deny appellant's motion for new trial. Upon this
assignment appellant relies on sec. 8783, N.C.L.1931-1941 Supp., requiring the court trying a
question of fact to make its decision within 30 days after submission, and upon sec. 8433,
N.C.L.1929, requiring a district judge, before receiving any monthly salary, to file an affidavit
reciting that no matter remains undecided which has been submitted for a period of more than
90 days. Appellant emphasizes the fact that the issues of fact and of law were simple and the
amount involved inconsiderable, and that the record is devoid of any explanation of the long
delay. The situation thus presented constitutes no ground for reversal. Ratliff v. Sadlier, 53
Nev. 292, 299 P. 674.
[Headnote 5]
Defendant moved for a new trial on the grounds of (1) irregularity in the proceedings; (2)
misconduct of the prevailing party; (3) excessive damages appearing to have been given
under the influence of passion or prejudice; (4) insufficiency of the evidence to justify the
decision and that same is against law; and (5) error in law occurring at the trial and excepted
to by the defendant. The sole support of this motion, so far as disclosed by the record, was an
affidavit by counsel for defendant purporting to show, by a recital of events both prior and
subsequent to the submission of the case, that the trial judge must have forgotten much of
what had transpired. The affidavit is apparently intended as a substitute for a transcript of the
evidence. It also purports to recite an asserted error in ruling upon an offer of certain
evidence. The assignment presents to this court no ground for reversal. Other matters
presented by appellant have been considered and found to be without merit.
by appellant have been considered and found to be without merit.
The judgment and the order denying appellant's motion for new trial are affirmed with
costs.
January 30, 1953.
Per curiam:
Rehearing denied.
____________
69 Nev. 330, 330 (1952) State v. Elges
THE STATE OF NEVADA, Respondent, v.
KENNETH L. ELGES, Appellant.
No. 3693
December 29, 1952. 251 P.2d 590.
Appeal from the Second Judicial District Court, Washoe County; William McKnight,
Judge, department No. 1.
Defendant was convicted of the crime of abortion by means of an instrument, and from
that judgment and an order denying a new trial, he appealed. The Supreme Court, Merrill, J.,
held that the evidence sustained the conviction.
Judgment and order affirmed.
Morgan Anglim, and Griswold & Vargas, of Reno, for Appellant.
Jack Streeter, District Attorney, Washoe County, Reno, for Respondent.
1. Abortion.
Conviction for abortion by means of an instrument was sustained by evidence. N.C.L.1929, secs. 10129,
10975.
2. Criminal Law.
Where nature and conclusiveness of evidence as to offense charged were such that jury could not in good
conscience have found otherwise than that defendant was guilty, error, if any, in
admission of testimony relating to other offenses did not require reversal of abortion
conviction.
69 Nev. 330, 331 (1952) State v. Elges
found otherwise than that defendant was guilty, error, if any, in admission of testimony relating to other
offenses did not require reversal of abortion conviction. N.C.L.1929, sec. 11266.
OPINION
Defendant Elges, a duly licensed physician and surgeon of Reno, Nevada, following jury
trial, was found and adjudged guilty of the crime of abortion by means of an instrument.
From that judgment and from order denying new trial this appeal is taken.
The crime is defined by sec. 10129, N.C.L.1929, as follows: Every person who, with
intent thereby to produce the miscarriage of a woman, unless the same is necessary to
preserve her life or that of the child whereof she is pregnant, shall* * * Use, or cause to be
used, any instrument or other means; Shall be guilty of abortion, * * *.
One Golding, an alleged contact man for defendant Elges, was originally named as
codefendant and such was his status throughout the trial. Upon submission of the state's case,
he changed his plea to guilty and was subsequently sentenced upon that plea. The court in
instructing the jury charged it not to consider testimony as to conversations had by witnesses
with Golding or evidence as to his actions.
[Headnote 1]
No evidence was presented by defendant Elges, the case going to the jury upon the
evidence presented by the state alone. Defendant's first contention is that that evidence was
insufficient to warrant a verdict of guilty and that the court erred in refusing his request for a
directed verdict of acquittal. In this regard he asserts, first, that the state did not prove the use
of an instrument and, second, that there was not sufficient corroboration under the
requirement of sec. 10975, N.C.L.1929 that the defendant shall not be convicted upon the
testimony of the woman upon * * * whom the offense shall have been committed unless she
is corroborated by other evidence."
69 Nev. 330, 332 (1952) State v. Elges
shall have been committed unless she is corroborated by other evidence.
The woman upon whom the offense was committed, whom we shall call by her given
name, Juanita, testified as follows: In May, 1950, she was residing in the bay area of
California. She was married and had three children. Domestic difficulties had been
encountered and she was contemplating a divorce. (By the time of trial the parties had been
divorced.) She became pregnant and felt that under the circumstances she simply could not
afford a fourth child. On May 17, 1950, she went with her husband to Daly City, California,
where she met Golding. On May 19, 1950, she flew to Reno and called at defendant's office.
In the reception room were two other women who had flown to Reno on the same plane with
her. When she was called she entered defendant's office, paid him a fee of $350 and
submitted to the operation at his hands. Just prior to the performing of the operation she saw
an instrument in the hands of defendant, describing it as from 8 to 10 inches long, smaller
around than an ordinary pencil and with a sort of hook at the end. During the operation she
felt extreme pain in her abdomen. That night she returned to her home in California, after
which she experienced hemorrhaging, general weakness and fainting spells, increasing in
frequency. On May 26, 1950, she consulted her family physician, was hospitalized, and a
curettement was performed.
In corroboration, the doctor who had performed the curettement testified. Prior to May 19,
1950, he had examined Juanita, finding her pregnant but otherwise in excellent health. There
was no indication that continuing pregnancy or normal birth of a child would endanger her
health. On May 26, 1950, he examined her, finding her an extremely sick person. She was
hospitalized immediately and he performed a curettement, finding that she had a marked
amount of placental tissue in the uterus with remnants of the fetus remaining, the baby that
had been partially dismembered"; that she had severe pelvic peritonitis secondary to an
induced abortion brought about "by instrumentation in the uterus."
69 Nev. 330, 333 (1952) State v. Elges
bered; that she had severe pelvic peritonitis secondary to an induced abortion brought about
by instrumentation in the uterus. In answer to an inquiry whether in his opinion she was
aborted by the use of some foreign instrumentation being inserted in her uterus he replied
Yes.
Juanita's husband testified to the trip to Daly City on May 17 and to meeting Golding at
that time; to driving Juanita to the airport on May 19; to furnishing her with $350 for the
operation. He further testified: after Juanita returned to her home she was hemorrhaging and
passing blood clots and couldn't stand up and she was in pain a lot, and I got scared and called
our family doctor and told him what had taken place and he said to get her to the South San
Francisco hospital right away and he would meet us there.
One of the two women seen by Juanita in defendant's reception room testified
corroborating Juanita's presence in defendant's office on May 19, 1950.
Nothing can be clearer, in our view, than that Juanita's testimony was amply corroborated
within the requirements of our statute; that the corroboration tended to connect the defendant
with the offense; that the testimony of Juanita and of the doctor supplied evidence of
instrumentation; that the court was not in error in refusing to direct a verdict for the
defendant.
The state did not choose to stand upon the testimony outlined, however. It proceeded to
present testimony of six other women (one of whom was the witness present in the reception
room with Juanita), all of whom testified to having made the Daly City contact with Golding
and the trip to Reno and to receiving an abortion operation at the hands of defendant. With
reference to this testimony the court instructed the jury as follows:
Such evidence was received for a limited purpose only; not to prove distinct offenses or
continual criminality, but for such bearing, if any, as it might have on the question whether
the defendant is innocent or guilty of the crime charged against him in the indictment.
69 Nev. 330, 334 (1952) State v. Elges
of the crime charged against him in the indictment. You are not permitted to consider that
evidence for any other purpose, * * *. The value, if any, of such evidence depends on whether
or not it tends to show that the defendant entertained the intent which is a necessary element
of the alleged crime for which he is now on trial * * *. State v. Vertrees, 53 Nev. 509, 112 P.
42.
Defendant contends that, notwithstanding the court's instruction, this testimony was
improperly admitted and was highly prejudicial; that its admission accordingly was reversible
error.
The question of the admissibility of such testimony in such a case as this has frequently
had the consideration of the courts. Generally it may be stated that in cases of abortion the
courts are in substantial agreement that evidence of other offenses is competent and relevant
upon the issue of the defendant's intent in committing the acts charged where such intent is an
issue in the case. See: Ann. 15 A.L.R.2d 1080. There is division in the authorities, however,
as to just when such intent is so placed in issue as to become a proper subject of proof by
evidence of such a character. See: Ann., supra, 15 A.L.R.2d, P. 1089. One line of authority
holds that since criminal intent in every case is an essential ingredient of criminal abortion
(especially under a statute such as ours), the state has an affirmative duty to prove such an
intent; that evidence of other offenses may, therefore, be introduced as such proof upon the
state's case in chief. See: Ann., supra, p. 1091. Another line of authority (to which a major
portion of appellant's brief is devoted and exemplified by State v. Wilson, 113 Ore. 450, 230
P. 810, 233 P. 259, 39 A.L.R. 88 and State v. Cragun, 85 Utah 149, 38 P.2d 1071), holds that
such evidence is inadmissible unless and until absence of criminal intent is affirmatively
asserted by the defendant. See: Ann., supra, p. 1089.
69 Nev. 330, 335 (1952) State v. Elges
Defendant also points out that in no instance was it shown that the other abortion
operations were not necessary to preservation of life. He contends that such evidence could
not, in any event, therefore, bear upon the question of criminal intent since such intent was
not established as to such operations.
[Headnote 2]
In our view, however, the question of inadmissibility of this evidence upon any of the
grounds asserted by defendant need not be decided in this case. In any event we should be
compelled to hold that its admission was not prejudicial under sec. 11266, N.C.L.1929. That
section 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.
Since the evidence of the offense with which defendant was charged went to the jury
without contradiction or explanation by the defendant, there was no issue in the evidence
upon which the testimony of other offenses might have swayed the jury. Nor, as we have
discussed, was there any deficiency in proof of the offense charged. Further it is to be noted
that there is no indication that the testimony of Juanita or of her corroborators for any reason
was unworthy of belief by the jury. Not only does it remain uncontradicted. In no respect was
it impeached; nor was it shaken by cross-examination. Yet, in effect what we are asked to
conclude is that had it not been for the testimony relating to other offenses the jury might well
have disbelieved every witness as to the offense charged. Not that it might have believed
witnesses to the contrary effect, but might simply have disbelieved the undisputed
testimony of the state's witnesses for no apparent or asserted reason at all.
69 Nev. 330, 336 (1952) State v. Elges
witnesses to the contrary effect, but might simply have disbelieved the undisputed testimony
of the state's witnesses for no apparent or asserted reason at all. We find ourselves wholly
unable to accept such a proposition.
A similar contention was made in People v. Busby, 40 Cal.App.2d 193, 104 P.2d 531, 535,
where the defendant had been indicted for child stealing and abduction and the child was the
principal witness against him. Hearsay testimony was improperly admitted. The defendant
contended that the testimony of the child might not have been believed by the jury had it not
been for the fact that the inadmissible evidence reflected unfavorably upon his character. The
court, relying upon a constitutional provision similar to our sec. 11266, stated: In a close
case there is little doubt that the admission of this evidence might be held to be reversible
error, but in the instant case the evidence * * * is so uncontradicted and so overwhelming that
if appellant had been pictured by the evidence as a paragon of virtue, the jury could have
reached no other verdict. The admission of this evidence has not resulted in any miscarriage
of justice and was not reversible error. * * *
In People v. Dial, 28 Cal.App. 704, 153 P. 970, 972, the court agreed with the defendant
that evidence of other offenses should not have been admitted. It held, however, that the error
was not prejudicial, stating, The accusation against defendant is established by the testimony
of two witnesses who testify directly to the commission of the acts charged in the
information. The record fails to show that these witnesses were impeached or contradicted in
any particular. No evidence was offered by the defendant, except the testimony of one witness
which was confined to one of these earlier transactions. The evidence left no room for doubt
in the minds of the jurors. They were bound to find the defendant guilty and could not have
done otherwise without violation of their oaths.
In State v. Skaug, 63 Nev. 59, 66, 161 P.2d 708, 711, 163 P.2d 130, it was stated by this
court: * * * 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.
69 Nev. 330, 337 (1952) State v. Elges
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. Section 11266 N.C.L. prevents a reversal.
This same principle has been applied in abortion cases. In People v. Northcott, 45
Cal.App. 706, 189 P. 704, 710, the Supreme Court of California under the constitutional
provision to which we have referred, refused to review a decision of the district court of
appeals as to the admissibility of testimony concerning other abortion operations performed
by the defendant. The court's refusal was based upon language of the court of appeals that the
record * * * leaves no doubt of the guilt of the defendant. To the same effect is Thacker v.
State, 55 Okla.Crim.App. 161, 26 P.2d 770.
If, then, upon completion of the state's case, excepting the testimony as to other abortion
operations, the nature and conclusiveness of the evidence as to the offense charged were
such that the jury could not in good conscience have found otherwise than that he was guilty
(and we are satisfied that such is the case), the only logical conclusion is that the error, if any,
was not prejudicial. State v. Skaug, supra.
State v. McKay, 63 Nev. 180, 187, 188, 165 P.2d 389, 167 P.2d 476, 479, dealt with the
asserted error of requiring the defendant under charge of first-degree murder to appear before
the jury throughout the trial in handcuffs. The defendant there contended that the sufficiency
of the evidence could not logically negative the idea that prejudice may have influenced the
jurors, since there is no conceivable yardstick in the law to judge the degree of prejudice in
the minds of the jurors. This court, speaking through Mr. Justice Horsey, rejected this
contention, refusing to recognize in the defendant any fanciful right to play upon the
sympathy or credulity of the jurors, and * * * to endeavor to have them depart from their
sworn duty, and thereby defeat justice, and of which the handcuffing may have rendered him
less capable, * * *."
69 Nev. 330, 338 (1952) State v. Elges
may have rendered him less capable, * * *. The opinion states, The jurors having done no
more than their sworn duty, it cannot be presumed in favor of appellant that if appellant had
been free from handcuffs, they would have done less than their duty. * * * The appellant, of
course, had no right to have justice miscarry in his favor. No person has that right. That
language, we feel, precisely expresses our position in the instant case.
Judgment and order are affirmed.
Badt, C. J., concurs.
Eather, J., dissenting.
I dissent.
This case was originally assigned to the writer for the preparation of the opinion of the
court. In view of the position taken by the majority of the court, I am herewith setting forth
the original draft prepared and presenting it as the dissenting opinion, adding thereto such
observations as I deem proper in view of the attitude of the prevailing opinion.
I think the judgment of conviction should be reversed, and that the defendant should have
a new trial, for error in the admission of evidence, over appellant's objections, from six other
women who testified that appellant had performed abortions upon them at times prior to the
act specified in the indictment, and also in the admission of evidence of similar offenses
which were not charged in the indictment. In my opinion the admission of such evidence was
prejudicial to appellant and the error requires that the conviction be set aside and a new trial
awarded.
Appellant was charged with the crime of abortion under sec. 10129, N.C.L., in that he used
or caused to be used upon the body of a woman then pregnant, certain instruments, wilfully,
unlawfully and feloniously, and with intent to produce a miscarriage, not necessary to
preserve the life of the woman or the child. He pleaded not guilty and offered no evidence at
the trial.
69 Nev. 330, 339 (1952) State v. Elges
not guilty and offered no evidence at the trial. The state gave evidence that the operation was
not necessary to save life, inasmuch as the prosecuting witness was in good health. The jury
returned a verdict of guilty, which the trial judge refused to disturb.
At the trial, the state offered and the trial court accepted, over appellant's objections,
evidence from six other women who testified that appellant had performed abortions upon
them at times prior to the act specified in the indictment. In my opinion the admission of such
evidence was prejudicial to appellant and the error requires that the conviction be set aside
and a new trial awarded.
It is well settled that evidence that accused had committed another crime independent of
and unconnected with the one for which he is on trial is inadmissible; State v. Skaug, 63 Nev.
59, 161 P.2d 708, 163 P.2d 130. There are some exceptions to the rule, and, in State v.
McFarlin, 41 Nev. 486, 172 P. 371, we referred to People v. Molineux, 168 N.Y. 264, 61
N.E. 286, 62 L.R.A. 193, where the court stated and discussed the exceptions. We said in that
case that evidence of other crimes would be accepted only when it would tend to establish
one of the following: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common
scheme or plan, embracing the commission of two or more crimes so related to each other
that proof of one tends to establish the others; or (5) the identity of the person charged with
the commission of the crime.
There is no suggestion of mistake or accident in the present case, nor is there any question
as to the identity of the person charged. Those two exceptions may now be laid aside. As
there is evidence of the general good health of the prosecuting witness and, therefore, that the
miscarriage was not necessary to save life and as there was testimony that appellant was paid
for the operation, the motive seems to have been established and there was no need for resort
to other crimes to prove motive.
69 Nev. 330, 340 (1952) State v. Elges
motive. To claim the aid of the fourth exception relating to a common plan or scheme, it is
necessary to show that the other crimes bear such a close relation to the one charged in the
indictment that proof of one tends to establish the others. The evidence offered against
appellant concerning the other crimes clearly shows that each, if committed, was a separate
and independent act. I see no common design or scheme. If a person bent on murder steals a
gun or other weapon to accomplish his purpose, the scheme or design is apparent and proof of
the stealing of the weapon is allowed at the trial for murder. The other abortions charged to
appellant by the testimony admitted in this case have no relation to the crime laid in the
indictment.
There remains the exception relating to intent. Appellant offered no testimony. By his plea
he contended he was not guilty of the entire charge. If he had admitted doing the act and
claimed, for example, that he believed it to have been necessary or that it was a mistake or an
accident, evidence of other and similar acts might be admitted to show his intent to do an
unlawful act. From the relevant evidence in this case, it seems quite apparent that if appellant
performed an abortion upon the prosecuting witness he harbored a sufficient intent to come
within the meaning of the statutory language. Where intent is thus shown in the mere doing of
an act, it is unnecessary for the state to resort to evidence of other alleged crimes by the
accused in order to establish intent. This principle is stated in State v. Cragun, 38 P.2d 1071,
at pages 1077, 1078, 1079, as follows:
Where the intent or guilty knowledge is a necessary conclusion from the act done, proof
of other offenses of a similar character is inadmissible and violates the rule that the evidence
must be confined to the issue. * * *
Where the state is able to prove, as it did in the case at bar, the commission of the act and
that its performance was not necessary to save the life of the woman, then the criminal intent
of the defendant has been shown, and evidence of other abortions on other and entirely
different women is not relevant nor competent.
69 Nev. 330, 341 (1952) State v. Elges
entirely different women is not relevant nor competent. If the defendant, although he had
pleaded not guilty, claimed that the act was necessarily performed in an effort to save the life
of the woman, then in rebuttal of such claim the state might well offer evidence of other
abortions attempted or committed by the defendant for the purpose of disproving such claim
and showing his intent in the performance of the acts for which he is being tried.
Cases may arise where the state would be unable to prove the intent of the defendant
without proving the commission, or attempted commission, by him on other women of
separate and distinct offenses. Should such a case arise, then, for the purpose of proving a
criminal intent, the state should be permitted to introduce such evidence on its main case,
although a plea of not guilty had been entered by the defendant; but, where the state, as was
the case here, can prove the intent without relying upon separate and distinct offenses
committed by the defendant, it should do so.
Evidence of the commission of separate and distinct offenses is an exception to the
general rule, and its admission should be definitely limited to the cases in which it is relevant
and material in order to safeguard the rights of a defendant. Jurors might often be inclined to
convict a defendant, although he be innocent of the crime charged, were the state permitted to
prove that he had committed other and distinct crimes than the one for which he was being
tried. In limiting such evidence, as we have, we feel that we are protecting and safeguarding,
not only the rights of the defendant, but the state as well.
It necessarily follows that the admission of this evidence was error, and that a new trial
should be granted. The judgment of the court below is therefore reversed, and the case
remanded for a new trial.
In the Cragun case it was also said by Chief Justice Straup in his concurring opinion, 38
P.2d at pages 1084, 1085: "Further, the chief reason why evidence of like offenses is
inadmissible is that the introduction of it opens the door to collateral issues not embraced
within the information and of which the accused is not apprised and hence unprepared to
meet such issues; that to enter upon a trial of them may require as much or more time to
try them as to try the charged offense, for surely, if the state is permitted to give evidence
with respect to the commission of other like offenses, the accused may also give evidence
in refutation thereof.
69 Nev. 330, 342 (1952) State v. Elges
Further, the chief reason why evidence of like offenses is inadmissible is that the
introduction of it opens the door to collateral issues not embraced within the information and
of which the accused is not apprised and hence unprepared to meet such issues; that to enter
upon a trial of them may require as much or more time to try them as to try the charged
offense, for surely, if the state is permitted to give evidence with respect to the commission of
other like offenses, the accused may also give evidence in refutation thereof. One of the
requirements and functions of an information is to distinctly and in ordinary and concise
language set forth the offense upon which the accused is to be put on trial, and in such
manner as to enable a person of common understanding to know what is intended, so as to
enable the accused to prepare himself to meet the charged offense, and to limit and restrict
evidence with respect thereto.
I come now to the case of State v. McCurtain, 52 Utah, 63, 172 P. 481. There on a charge
of a criminal abortion it was held that the testimony of a young woman that an abortion was
committed on her by the accused at or about the time the operation was performed on the
prosecutrix was properly admitted. Such evidence was held proper because of the claim there
made by the accused that the miscarriage of the woman operated on in the charged offense
was necessary to preserve her life. Much evidence,' said the court, both for and against the
defendants, upon that proposition was adduced,' which as stated, constituted the chief issue
of the case,' and hence the question of intent was therefore the most prominent feature of the
case'; and that it has frequently been held in prosecutions of this character that for the
purpose of proving that the operation was in fact criminal, and as showing the intent of the
accused, the state may show that other similar operations were performed upon other
pregnant women.'
In saying that the court followed and quoted from cases holding that a felonious intent is
an essential ingredient of the crime charged and the act done is claimed to have been
accidental or by mistake, it is proper to characterize the act by proof of other like acts
producing the same result, as tending to show guilty knowledge and the intent or purpose
with which the particular act was done and to rebut the presumption that it might
otherwise obtain.
69 Nev. 330, 343 (1952) State v. Elges
ingredient of the crime charged and the act done is claimed to have been accidental or by
mistake, it is proper to characterize the act by proof of other like acts producing the same
result, as tending to show guilty knowledge and the intent or purpose with which the
particular act was done and to rebut the presumption that it might otherwise obtain. But in
most such cited cases, notably State v. Brown, 3 Boyce (Del.) 499, 85 A. 797, 800, it,
however, is stated that, where from the nature of the offense under investigation proof of its
commission as charged necessarily establishes the criminal intent, or the intent is a necessary
conclusion from the act done, evidence of the perpetration, or attempted perpetration, of other
like offenses should not be admitted.' 1 C.J. Sec. 96, p. 329, is there also cited and quoted,
that acts of defendant tending to show his knowledge of the woman's pregnancy and his
intention to commit an abortion upon her may be proved whether they were prior or
subsequent to the particular act charged in the indictment; hence evidence of other operations
performed by defendant before or after the operation charged is admissible for the purpose of
showing the intent with which the act charged was done.' But immediately following such
language, and in the same section, the author further says that such evidence is competent
only on the question of intent, and therefore is not admissible where the unlawful intent has
been proved,' etc.
Such is in accord with the recognized principle heretofore referred to that, where the
nature of the offense is such that proof of its commission as charged carries with it an
implication or presumption of criminal intent, evidence of the perpetration or attempted
perpetration of other like offenses is inadmissible. I recognize that some courts have not
always been mindful of such distinction, said nothing about it, and seemingly without any
reference thereto announced or stated that, where a felonious intent is an ingredient of the
charged offense, evidence may be admitted of the commission by the accused of other similar
offenses, which, so broadly stated, generally is conceded may not be done.
69 Nev. 330, 344 (1952) State v. Elges
accused of other similar offenses, which, so broadly stated, generally is conceded may not be
done. * * *
On the record I am convinced, and I think the record justifies the conclusion, that the
complained of evidence, under the guise of showing intent or guilty knowledge or motive or
the absence of necessity, was introduced to show the commission of another like offense to
indicate a probability of the commission by the accused of the charged offense, or to show a
disposition to commit it. As stated by Chief Justice Bigelow in Commonwealth v. Shepard, 1
Allen (Mass.) 575, evidence of other criminal acts is a dangerous species of evidence, not
only because it requires a defendant to meet and explain other acts than those charged
against him, and for which he is on trial, but also because it may lead the jury to violate the
great principle, that a party is not to be convicted of one crime by proof that he is guilty of
another.' I thus think prejudicial error was committed in admitting evidence of such claimed
prior offenses. (Emphasis supplied.)
In the above-cited case the defendant rested his case without evidence when the state
rested.
The same thought was expressed in a case in Oregon where the court refused to allow
evidence of other crimes. In State v. Willson, 113 Or. 450, 230 P. 810-811 (later opinion in
233 P. 259), the court said:
One consequence of supporting the procedure allowed in this respect by the trial court
would be that no defendant could know how many violations of the law he would be called
upon to defend upon a single charge; * * * The statute contemplates the statement in the
indictment of a single offense, and that the evidence shall be confined to that charge alone of
which the defendant has been informed.
In that case, evidence was given by the prosecuting witness that the accused had twice
previously attempted to destroy the fetus with which she was pregnant as a result of sexual
intercourse in which she and the accused had engaged. However, the supreme court reversed
a conviction and held that the admission of such evidence of other alleged crimes was
error.
69 Nev. 330, 345 (1952) State v. Elges
conviction and held that the admission of such evidence of other alleged crimes was error.
The opinion discusses the subject, the general rule and the exceptions at great length and
refers to many other cases.
The very number of other alleged crimes offered at the trial of the case at bar proves the
logic and fairness of the general rule and shows that exceptions should not be allowed to
work an injustice upon accused. The indictment charged him with one crime, for which he
should prepare his defense; but when he came to trial he found many others charged and of
which he had neither previous notice nor opportunity to adequately prepare a defense.
The exception to the general rule against admitting evidence of other alleged crimes must
be carefully guarded and not extended.
In State v. Willson, 233 P. 271, the court quoted from an early New York opinion as
follows:
The cases in which offenses other than those charged in the indictment may be proved,
for the purpose of showing guilty knowledge or intent, are very few.
While the admission of the above evidence alone requires a reversal there is another
reason which is equally fatal to the admission of other crimes alleged in this case. The law
makes abortion a crime if it is not necessary to save life, and part of the state's burden is to
prove that fact. If that be an essential ingredient, it seems only fair and, indeed, necessary that
any other alleged crimes offered against an accused should contain that necessary ingredient.
There is no evidence that any of the other alleged abortions, as testified to by others than the
prosecuting witness, was not necessary to save life. For all we know from the record, they
might not have been crimes.
In People v. Molineux, 61 N.E. 296, the court said:
Let us suppose this to be a case in which evidence of felonious intent could properly be
derived from proof of the commission by the defendant of other similar crimes. The
supposition necessarily implies the establishment of the extraneous crime by legal and
competent evidence before it can be referred to in support of the theory that it proves the
guilty intent with which the crime charged was committed."
69 Nev. 330, 346 (1952) State v. Elges
of the extraneous crime by legal and competent evidence before it can be referred to in
support of the theory that it proves the guilty intent with which the crime charged was
committed.
In State v. Willson, 233 P. 259, 260, the court said:
* * * even if the testimony were admissible, the prosecution had no right to have its
witness make the bald statement that there were two other miscarriages, without including in
her testimony the other statutory elements of the crime, viz., intent to destroy the child, and
want of necessity to preserve the mother's life.
The court there referred to a previously decided case involving forgery and quoted from it
as follows:
The prosecution assumed the same burden of proof as to each of the checks introduced to
show guilty knowledge as in regard to the check for which he is being tried.
Professor Wigmore, in his work on evidence, 3d. Ed. Vol. 11, sec. 302, says:
Yet, in order to satisfy this demand, it is at least necessary that prior acts be similar. * * *
The essence of its probative effect is the likeness of the instances, * * * in short, there must
be similarity in the various instances in order to give them probative value. * * *
In People v. Gordon, 71 Cal.App.2d 606, 163 P.2d 110, 127, a case called to our attention
by the state, the court said:
The guiding rule in a situation like the one before us is that evidence of similar
transactions is admissible to show guilty knowledge or intent so long as they contain the
material elements of the main case.'
See, also, People v. Rongetti, 338 Ill. 56, 170 N.E. 14; People v. Darby, 64 Cal.App.2d 25,
148 P.2d 28; State v. Bassett, 26 N.M. 476, 194 P. 867; State v. Choate, 228 N.C. 491, 46
S.E.2d 476; State v. Hale, Mont., 249 P.2d 495.
In the absence of an admission by or a conviction of appellant concerning the other alleged
abortions, I think that, if admissible at all, the state was bound to show with respect to
each the same elements as are necessary to secure a conviction under the indictment.
69 Nev. 330, 347 (1952) State v. Elges
that, if admissible at all, the state was bound to show with respect to each the same elements
as are necessary to secure a conviction under the indictment.
I agree with this further statement by the court in State v. Willson, 233 P. 271:
The evidence of other offenses in this case only tend to blacken the character of the
defendant. They are not admissible to show intent for that is completely and conclusively
established by the act itself if the testimony introduced by the state is to be believed. It is
contrary to the reason of the law to admit the objectionable testimony of other crimes. The
defendant had a constitutional right to be informed of the nature of the charge against him,
and to be held to answer only the crime named in the indictment. No defendant ought to be
deprived of his liberty by hue and cry, or by the mob-mad yell of Crucify him!', but only
upon an indictment constitutionally framed and proven by evidence of criminal acts, a
connection between which must have existed in the mind of the actor, linking them together
for some purpose he intended to accomplish.'
The state places reliance upon People v. Hickock, 56 Cal.App. 13, 204 P. 555, 557, where
a conviction of illegal abortion was sustained although evidence was received that defendant
committed two other illegal abortions. In that case, as in this, defendant did not testify.
However, he presented a physician as a witness in his behalf who testified that the operation
described by the witness for the prosecution, might have been for a certain female ailment,
in which event the instruments used and the sensations of pain described by the patient would
have been the same as in the case of an operation to arrest pregnancy. The court treated that
testimony as the presentation by defendant of an inferential defense that he had a lawful
purpose in performing the operation, which might create a reasonable doubt in the minds of
the jurors and the state had a right to show the other instances. Appellant here presented no
witness in his behalf. We think the Hickock case is distinguishable.
69 Nev. 330, 348 (1952) State v. Elges
The state calls our attention to the probable difficulty of securing convictions in cases like
this unless evidence of other offenses is permitted. I cannot be unmindful of the right of a
defendant to be tried for only the crime charged against him in the indictment. We fear that
conditions have not changed much, if any, since the following expression was given by the
court in State v. Saunders, 14 Ore. 300, 12 P. 441, 445:
Place a person on trial upon a criminal charge, and allow the prosecution to show by him
that he has before been implicated in similar affairs, no matter what explanation of them he
attempts to make, it will be more damaging evidence against him, and conduce more to his
conviction, than direct testimony of his guilt in the particular case. Every lawyer who has had
any particular experience in criminal trials knows this,knows that juries are inclined to act
from impulse, and to convict parties accused upon general principles. An ordinary juror is not
liable to care about such a party's guilt or innocence in the particular case if they think him a
scapegrace or vagabond. That is human nature. The judge might demurely and dignifiedly tell
them that they must disregard the evidence, except so far as it tended to impeach the
testimony of the party; but what good would that do? (Emphasis supplied.)
The state also suggests that if there was error in the admission of evidence relating to the
other abortions, it was harmless error because the relevant evidence was ample to enable the
jury to render a guilty verdict and, therefore, we should consider this case as one within the
provisions of sec. 11266, N.C.L., which forbids granting a new trial or setting aside a
judgment unless, after an examination of the whole case, the error complained of has resulted
in a miscarriage of justice or has actually prejudiced the defendant with respect to a
substantial right. Upon an examination of this record I do not believe that the evidence of
appellant's guilt is so overwhelming or convincing as to enable us as a matter of law to say
that the evidence of the other alleged crimes did not have a material influence upon the
jury and had no bearing upon the verdict.
69 Nev. 330, 349 (1952) State v. Elges
alleged crimes did not have a material influence upon the jury and had no bearing upon the
verdict. I think this appellant had a right to be tried solely upon the charge laid in the
indictment, free from any irrelevant matters which could and probably would inflame the
minds of the jurors and create prejudice against him. It would be an unusual mind that would
not be moved, at least to some extent, by a parade of witnesses who testified, as they did in
this case, that appellant performed six abortions upon them, in addition to the one for which
he is being tried.
In Crow v. State, 28 Ala.App. 319, 183 So. 897, 903, it is stated:
The rule of law that testimony of distinct and disconnected crimes should not be admitted
in criminal cases, is well grounded in principle and such evidence brought forward to bolster
up another and distinct charge is so manifestly harmful and unfair as to call for a reversal of
verdicts so obtained.
In Commonwealth v. Chalfa, 313 Pa. 175, 169 A. 564, 565, the court said:
Logically, the fact that a person has committed one offense is not proof by itself that he
has committed another. The effect, however, upon a mind receiving such information is not
necessarily slight, for there is an emotional reaction against him who is shown to be guilty of
another crime; in other words, the mind of the jury is prejudiced. Because of the nature and
prejudicial character of such evidence, it is obvious that it should be received with the utmost
caution.
On page 6 of respondent's answering brief it is stated in part as follows:
The Nevada cases cited do not, however, seem to have raised the precise question as to
whether or not the State can introduce evidence of other crimes in its case in chief where the
evidence concerning the crime in question clearly shows the crime to have been committed.
At the outset we will concede that there is a conflict of authority on the question of
whether or not the prosecution in an abortion case must wait until the defendant has
denied the criminal intent before introducing evidence of other acts to show that the
intent was a criminal one."
69 Nev. 330, 350 (1952) State v. Elges
of authority on the question of whether or not the prosecution in an abortion case must wait
until the defendant has denied the criminal intent before introducing evidence of other acts to
show that the intent was a criminal one.
The prevailing opinion in this case, in my judgment, is based upon a mistaken conception
of the law regarding the admission of evidence from the six other women who testified that
appellant had performed abortions upon them at times prior to the act specified in the
indictment. The prevailing opinion states in part as follows:
Nothing can be clearer, in our view, than that Juanita's testimony was amply corroborated
within the requirements of our statute; that the corroboration tended to connect the defendant
with the offense; that the testimony of Juanita and of the doctor supplied evidence of
instrumentation; that the court was not in error in refusing to direct a verdict for the
defendant.
The state did not choose to stand upon the testimony outlined, however. It proceeded to
present testimony of six other women (one of whom was the witness present in the reception
room with Juanita), all of whom testified to having made the Daly City contact with Golding
and the trip to Reno and to receiving an abortion operation at the hands of defendant.
In respect to the above the writer of this dissenting opinion desires to call to the attention
of my learned associates the statement contained in the case of State v. Cragun, supra, 38
P.2d, page 1078, as follows:
Where the state is able to prove, as it did in the case at bar, the commission of the act and
that its performance was not necessary to save the life of the woman, then the criminal intent
of the defendant has been shown, and evidence of other abortions on other and entirely
different women is not relevant nor competent. * * * In State v. Rodriguez, 31 Nev. 342,
347
69 Nev. 330, 351 (1952) State v. Elges
In State v. Rodriguez, 31 Nev. 342, 347, 102 P. 863, 865, the court stated:
[Prosecuting attorneys] have a duty to perform equally as sacred to the accused as to the
state they are employed to represent, and that is to see that the accused has a fair and impartial
trial guaranteed every person by our constitution, no matter how lowly he may be, or
degrading the character of the offense charged. * * * they should also see that nothing but
competent evidence is submitted to the jury.
This case was cited with approval by this court in State v. Kassabian, 69 Nev. 146, 243
P.2d 264, which said case was reversed and remanded by this court as presently constituted.
Did the prosecuting attorney in the case at bar commit error in offering evidence of six
other women as stated above? I am of the opinion that prejudicial error was committed.
Again in State v. Rodriguez, supra, 31 Nev., page 347, 102 P., 865, the court stated:
It seems to be a peculiar trait and ambition of some prosecuting attorneys, carried away
through misguided zeal, to overprove their case when a conviction is otherwise certain, and to
exert their skill and ingenuity in seeing how far they can trespass on the verge of error, and,
generally in so doing, trespass upon the rights of the accused, thus causing the necessity of
courts of last resort to reverse causes and order new trials, to the expense and detriment of the
commonwealth and all concerned.
In People v. Wolf, 183 N.Y. 464, 76 N.E. 592, 594, 596, the case went to the jury upon the
state's evidence alone. There the court stated:
An unfair trial, especially in a criminal case, is a reproach to the administration of justice
and casts grave responsibility, not only upon the prosecuting officer, but also upon the trial
judge. However strong the evidence against the defendant may be, if she did not have a fair
trial, as shown by the rulings of the court subject to proper objections and exceptions, the
judgment of conviction should be reversed and a new trial ordered, so that she may be
tried according to law.
69 Nev. 330, 352 (1952) State v. Elges
against the defendant may be, if she did not have a fair trial, as shown by the rulings of the
court subject to proper objections and exceptions, the judgment of conviction should be
reversed and a new trial ordered, so that she may be tried according to law. * * *
* * * The only excuse for the injustice, and we think it has as much force in this case as it
can have in any, is that the defendant is apparently guilty of a horrible and detestable crime.
But why should she be tried at all, unless she is tried fairly and in accordance with law? If her
guilt is so clear, why should unwarranted means be used to secure a conviction? * * *
In People v. Nuzzo, 294 N.Y. 227, 62 N.E.2d 47, 51, the court said:
Thirty years ago this court had occasion to comment upon abuses on the part of
prosecuting officers and carelessness on the part of trial courts in disregarding errors of major
importance in the trial of criminal cases whenever the judge was satisfied that the defendant
was guilty. We are prompted by our examination of records in this court disclosing many
shocking instances of abuse on the part of prosecuting officers which we have been asked to
ignore, to say again what was said in People v. Marendi, 213 N.Y. 600, 619-620, 107 N.E.
1058, 1064:
Are we then to disregard errors no matter how substantial, if upon a review of the
evidence we are satisfied with the verdict of the jury? Such a course would simply mean in
the long run the abolishing of all forms of law taught by experience to be necessary to the
protection of the innocent, and the decision of criminal cases on appeal solely on the facts. If
trial by jury is to be maintained, the right of every accused person to be tried in accordance
with established forms of law must be respected. If the errors in question had related to
matters upon which but one decision, and that adverse to the defendant, could reasonably
have been reached, it might be permissible to overlook them; but where prejudicial matter
is erroneously received in evidence on a disputed question of fact, its harmful character
cannot be determined solely by the mere weight of competent evidence unless we are to
resolve ourselves into a jury and, ignoring the finding upon incompetent evidence,
substitute one upon the evidence which we may deem competent.'"
69 Nev. 330, 353 (1952) State v. Elges
might be permissible to overlook them; but where prejudicial matter is erroneously received
in evidence on a disputed question of fact, its harmful character cannot be determined solely
by the mere weight of competent evidence unless we are to resolve ourselves into a jury and,
ignoring the finding upon incompetent evidence, substitute one upon the evidence which we
may deem competent.'
It is also stated in the prevailing opinion that the testimony of Juanita or of her
corroborators, remains uncontradicted. In no respect was it impeached; nor was it shaken by
cross-examination.
In this respect I would like to state that every lawyer who has had any particular
experience in criminal trials knows that to place a person on trial upon a criminal charge, and
to allow the prosecution to show by him that he has before been implicated in similar affairs,
no matter what explanation of them he attempts to make, it will be more damaging evidence
against him, and conduce more to his conviction, than direct testimony of his guilt in the
particular case. Unless therefore, a defendant in a criminal prosecution is as pure as the icicles
which form on Diana's temple, he had better keep off the witness stand if the prosecution is at
liberty to ransack his past life.
In this dissenting opinion I have in some detail attempted to show where the state is able to
prove, as it did in the case at bar, the commission of the act and that its performance was not
necessary to save the life of the woman, that the criminal intent of the defendant has been
shown and evidence of other abortions on other entirely different women is not relevant nor
competent.
In State v. Cragun, supra, 38 P.2d, p. 1082, the court stated as follows:
* * * It is urged that evidence of such claimed prior offenses was admissible to show
motive, or intent, or guilty knowledge of the accused as to the charged offense. Because in
some cases evidence of a separate and similar offense is admissible to show motive or
scienter, or intent, the fallacious conclusion is deduced that such evidence is admissible in
all cases where a felonious intent is an essential element of the charged offense.
69 Nev. 330, 354 (1952) State v. Elges
and similar offense is admissible to show motive or scienter, or intent, the fallacious
conclusion is deduced that such evidence is admissible in all cases where a felonious intent is
an essential element of the charged offense. Of course a felonious intent, a criminal or evil
purpose, is an essential element in the commission of most felonies. But that does not mean
that evidence of a prior, separate, and similar offense may be given in all cases to show with
what intent the specific charged offense was committed. To contend that is to enlarge or
increase or to disregard the exceptions to the general rule excluding such evidence. * * *
In State v. Hall, 249 P.2d 769, 772 (Nov. 6, 1952, Washington), the court said:
We agree with appellant that as a general rule evidence of the commission of a crime
other than the one with which a defendant is charged is not admissible, and if violated a new
trial must be granted. To this rule there are many exceptions. * * * There appears to be no
difference of opinion about the rule and such exceptions, but the courts find difficulty and
often seemingly disagree upon their application. (Emphasis added.)
In the face of the record presented in this case, I am unable to close my eyes to the facts,
and I think the record justifies the conclusion, that the complained of evidence, under the
guise of showing intent or guilty knowledge or motive or the absence of necessity, was
introduced to show the commission of other like offenses to indicate a probability of the
commission by the accused of the charged offense, or to show a disposition to commit it. The
general rule that the commission of a separate crime cannot be proven in support of the one
named in the indictment is still in existence. The exceptions to this rule have not as yet
superseded the time honored precept of the law. On the contrary, as said in Underhill's work
on Criminal Evidence, sec. 87, cited with approval by Mr. Justice Moore in State v.
O'Donnell, 36 Ore. 222, 61 P. 892, 893: "These exceptions are carefully limited and
guarded by the courts, and their number should not be increased."
69 Nev. 330, 355 (1952) State v. Elges
These exceptions are carefully limited and guarded by the courts, and their number
should not be increased. In this dissenting opinion I have in some detail attempted to show
just what the law is in my opinion in the case at bar; perhaps the opinion will be criticized as
being repetitious, however, in order to make the opinion clear as to the law as I see it, it has
been necessary to emphasize by repetition and I trust that the opinion will not be considered
in the same light as an extemporaneous speech, only worth the paper if is written upon.
It necessarily follows that the admission of the evidence of other crimes as outlined in this
opinion was error and that a new trial should be granted.
March 11, 1953.
Rehearing denied.
(Eather, C. J., dissenting.)
____________________
[Reporter's Note: Elges v. State. Petition for a writ of certiorari in the above case was denied by the Supreme
Court of the United States on November 16, 1953.]
____________
In Memoriam
____________
FRANK H. NORCROSS
69 Nev. 357, 357 (1952) In Memoriam
IN THE SUPREME COURT OF THE
STATE OF NEVADA
____________
In the Matter of the Death of
Honorable FRANK H. NORCROSS

}

Order
In respect to the memory of the late Honorable Frank H. Norcross who served for
many years as a Justice and Chief Justice of this Court and who departed this life on the 4th
day of November, 1952.
It Is Hereby Ordered that E. P. Carville, William Woodburn, Sr., James T. Boyd,
Samuel Platt, M.A. Diskin, H. H. Atkinson, Honorable William McKnight, Miles N. Pike and
Honorable Roger T. Foley be, and they hereby are, appointed as a committee to draft and
present to this Court suitable resolutions expressing the high esteem in which he was
universally held, and the sorrow of the members of the Bench and Bar of Nevada because of
his passing.
Done at Carson City, Nevada, this 6th day of November, 1952.
Milton B. Badt,
Chief Justice.
Edgar Eather,
Associate Justice.
Charles M. Merrill,
Associate Justice.
Attest: Ned A. Turner,
Clerk of the Supreme Court.
To the Honorable, the Supreme Court of the State of Nevada:
Your committee appointed to prepare and present resolutions on the life of the
Honorable Frank Herbert Norcross, giving expression of the high esteem in which he was
universally held, and expressing sorrow of the Bench and Bar of Nevada because of his
passing, respectfully submit the following:
Honorable Frank Herbert Norcross who died in San Francisco, California, on
November 4, 1952, was born in Washoe County, Nevada, May 11, 1S69.
69 Nev. 357, 358 (1952) In Memoriam
San Francisco, California, on November 4, 1952, was born in Washoe County, Nevada, May
11, 1869. He was the son of Thomas and Caroline Sherman Norcross who were both pioneers
of California and Nevada. He attended the district county schools of Washoe County and was
one of the members of the first graduating class of the University of Nevada, receiving the
degree of A.B. in the year 1891. He acquired his legal education and law degree in the Law
School of Georgetown University, in Washington, D. C., and was admitted to practice law in
Nevada on July 28, 1894. He was later admitted to practice law in the State of California and
before the Supreme Court of the United States. During his distinguished career as a citizen
and lawyer in Nevada he held the office of District Attorney of Washoe County, was a
member of Nevada State Legislature, Justice and Chief Justice of the Supreme Court of the
State of Nevada and United States District Judge for the District of Nevada.
Besides rendering excellent service as a public official in our State he took an active
interest in its civic and economic affairs and represented the State at many conferences and
sessions dealing with crime problems, uniform State laws, patriotic gatherings, and was a
power in political activities for the good of his native State. He also contributed articles to
various publications dealing with the various subjects in which he took a deep interest. For a
number of years he served as Associate Editor of The Journal of American Institute of
Criminal Law and Criminology.
He was a member of the Masonic Order, having attained the 33d Degree, and at the
time of his death was the oldest living Grand Master of that Order in Nevada.
As the issue of the marriage of Judge Norcross to Adeline L. Morton, also a native of
Nevada, on July 10, 1895, a daughter, Adele Bender, her son, Frank Bender, and a great
grandson, Chris Norcross Bender, survive him as does his present wife, Fanny A. Norcross.
Besides being a kindly person he had an exceptionally fine personality and a mind that
fitted him admirably for the many official positions held by him as well as in his capacity as
a practicing attorney.
69 Nev. 357, 359 (1952) In Memoriam
the many official positions held by him as well as in his capacity as a practicing attorney. He
was a pioneer and buider of the State of Nevada as well as our Nation. The United States and
his native State are deeply indebted to him for his valuable contributions as a builder of their
civic, economic, legal and political history during his brilliant career.
Respectfully submitted this 21st day of November, 1952.
E. P. Carville,
Chairman.
Samuel Platt,
Wm. Woodburn,
Wm. McKnight,
H. H. Atkinson,
James T. Boyd,
Roger T. Foley,
M. A. Diskin,
Miles N. Pike,
Committee.
The foregoing resolution was adopted byt the Court and ordered spread upon its
minutes, and a copy ordered to be sent to the surviving wife, daughter and grandson of Judge
Norcross, and published in the next volume of the Nevada Reports.
____________

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