Nevada Reports 1965 (81 Nev.) PDF

81 Nev.
1, 1 (1965)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 81
____________
81 Nev. 1, 1 (1965) Painter's Local v. Tom Joyce Floors
PAINTER'S LOCAL UNION NO. 567 OF THE BROTHERHOOD OF PAINTERS,
DECORATORS AND PAPERHANGERS OF AMERICA, Appellant and Cross-Respondent,
v. TOM JOYCE FLOORS, INC., A Nevada Corporation; CHARLES FOX and DEAN
HART, dba NEW EMPIRE FLOORS, Respondents and Cross-Appellants.
No. 4790
January 11, 1965 398 P.2d 245
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Action for damages by employer against union whose members had picketed employer's
jobs to induce employer to sign agreement containing a nondiscriminatory hiring hall
provision. The lower court gave judgment to employer, and union appealed. The Supreme
Court, Thompson, J., held that the picketing was not enjoinable by state court and could not
be predicate for state court damages action.
enjoinable by state court and could not be predicate for state court damages action.
Judgment reversed.
[Rehearing denied February 9, 1965]
Marshall A. Bouvier, of Reno, and Neyhart & Grodin and Dwayne Beeson, of San
Francisco, for Appellant and Cross-Respondent.
Ernest S. Brown and Peter I. Breen, of Reno, for Respondents and Cross-Appellants.
1. Labor Relations.
State court lacks jurisdiction to determine legality of proposed collective bargaining agreement before
agreement is signed by employer and union. National Labor Relations Act, 8(a) (3), 14(b) as amended
29 U.S.C.A. 158(a) (3), 164(b); U.S.C.A.Const. art. 6, cl. 2; NRS 613.230-613.300.
2. States.
Preemption rests upon supremacy cause of Federal Constitution, and deprives state of jurisdiction over
matter embraced by congressional act regardless of whether state law coincides with, is complementary to,
or opposes federal congressional expression. National Labor Relations Act, 8(a) (3), 14(b) as amended
29 U.S.C.A. 158(a) (3), 164(b); U.S.C.A.Const. art. 6, cl. 2.
3. Labor Relations.
Federal action in area of union security precludes state enforcement of its own legislation in that area,
unless Congress has also legislated to allow states to act in areas where Congress normally would be
deemed to have preempted the field. National Labor Relations Act, 8(a) (3), 14(b) as amended 29
U.S.C.A. 158(a) (3), 164(b); U.S.C.A.Const. art. 6, cl. 2.
4. Labor Relations.
States have power to outlaw or restrict closed shop and related union security devices. National Labor
Relations Act, 14(b) as amended 29 U.S.C.A. 158(a) (3).
5. Labor Relations.
Union shop is one requiring union membership after hiring as condition of employment for duration of
contract. National Labor Relations Act, 8(a) (3) as amended 29 U.S.C.A 158(a) (3).
6. Labor Relations.
Agency shop is one requiring, as a condition of employment, for the duration of the contract, a worker
to pay a fixed sum each month to defray expenses of the union, whether or not he is a member of the union.
National Labor Relations Act, 8(a) (3) as amended 29 U.S.C.A. 158(a) (3).
7. Labor Relations.
Union's picketing allegedly to induce employer to sign agreement containing nondiscriminatory hiring
hall provision was not enjoinable by state court and could not be predicate for state
court damages action.
was not enjoinable by state court and could not be predicate for state court damages action. National Labor
Relations Act. 8(a) (3), 14(b) as amended 29 U.S.C.A. 158(a) (3), 164(b); U.S.C.A.Const. art. 6, cl.
2; NRS 613.230-613.300.
OPINION
By the Court, Thompson, J.:
[Headnote 1]
On this appeal we must decide whether a state court has jurisdiction to determine the
legality of a collective bargaining agreement containing a nondiscriminatory hiring hall
provision before the agreement is signed by the employer and the union. The lower court
assumed jurisdiction to make that determination, and awarded damages to the picketed
employer.
1
It is conceded that the employer's business operations affect commerce within the
meaning of the National Labor Relations Act as amended, 61 Stat. 136-159 (1947), 29
U.S.C., 141-187 (1958). The court below found that the union had picketed the employer's
jobs for an unlawful purposethat of coercing the employer to sign an agreement which was
in violation of Nevada's Right to Work law (NRS 613.230-613.300) because it contained a
nondiscriminatory hiring hall provision. We have concluded that a state court lacks
jurisdiction to determine the legality of a proposed collective bargaining agreement before the
agreement is signed by the employer and the union (Retail Clerks Int'l Ass'n, Local 1625 v.
Schermerhorn, 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179, the second Schermerhorn case),
and therefore reverse the judgment. We do not now decide whether a nondiscriminatory
hiring hall provision (one requiring an employer to contact the union for employment
applicants, but at the same time requiring the union to dispatch such applicants in a
designated order without regard to union membership or nonmembership) violates the
Right to Work law of this state. On this point see Annot., 3S A.L.R.2d 413 {1954);
Branham v. Miller Electric Co., 237 S.C. 540, 11S S.E.2d 167 {1961); Kaiser v.
Price-Fewell, Inc.,
____________________

1
Two cases were consolidated for trial below. Tom Joyce Floors, Inc. v. Painter's Local 567, and Charles Fox
and Dean Hart dba New Empire Floors v. Painter's Local 567. Tom Joyce was awarded $843.63 in damages, and
New Empire Floors $1.00. They have cross-appealed, contending that the award of damages was inadequate as a
matter of law. Because of our conclusion as to the appeal, we do not reach the issue raised by the cross-appeal.
applicants in a designated order without regard to union membership or nonmembership)
violates the Right to Work law of this state. On this point see Annot., 38 A.L.R.2d 413
(1954); Branham v. Miller Electric Co., 237 S.C. 540, 118 S.E.2d 167 (1961); Kaiser v.
Price-Fewell, Inc., 235 Ark. 295, 359 S.W.2d 449 (1962); cf. Building Trades Council v.
Bonito, 71 Nev. 84, 280 P.2d 295 (1955); Kovarsky, Union Security, Hiring Halls, Right to
Work Laws and the Supreme Court, 15 Lab. L.J. 659 (1964). Nevada's answer to that
question must await another caseone in which the collective bargaining agreement has been
negotiated and executed by the employer and the union.
[Headnotes 2-4]
We are here dealing with the doctrine of federal preemption as applied to the Taft Hartley
Act and particularly to 8(a) (3) [61 Stat. 140 (1947), 29 U.S.C. 158(a) (3) (1962)] and
14(b) [61 Stat. 151 (1947), 29 U.S.C. 164(b) (1958) ] thereof. Preemption rests upon the
supremacy clause of the federal constitution,
2
and deprives a state of jurisdiction over
matters embraced by a congressional act regardless of whether the state law coincides with, is
complementary to, or opposes the federal congressional expression. Bethlehem Steel Co. v.
New York State Labor Relations Bd., 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234.
Accordingly, congressional action in the area of union security precludes state enforcement of
its own legislation in that area, unless Congress has also legislated to allow the states to act in
areas where Congress normally would be deemed to have preempted the field. Section 14(b)
of the Taft Hartley Act is such legislation. It provides, Nothing in this subchapter shall be
construed as authorizing the execution or application of agreements requiring membership in
a labor organization as a condition of employment in any State or Territory in which such
execution or application is prohibited by State or Territorial Law."
____________________

2
U. S. Const. art. VI, cl. 2, reads, This Constitution and the Laws of the United States which shall be made
in Pursuance thereof * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
such execution or application is prohibited by State or Territorial Law. Thus Congress
recognized state power to outlaw or restrict the closed shop and related union security
devices, which power was sustained by the United States Supreme Court in Lincoln Fed.
Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212.
[Headnotes 5, 6]
Were it not for 14(b) a state could not enact a Right to Work law applicable to employers
engaged in interstate commerce because the federal law, 8(a) (3) had preempted the field by
authorizing agreements conditioning employment on membership in a labor organization.
The latter section provides in part, (a) It shall be an unfair labor practice for an employer * *
* (3) by discrimination in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization; Provided,
That nothing in this subchapter or in any other statute of the United States, shall preclude an
employer from making an agreement with a labor organization * * * to require as a condition
of employment membership therein on or after the thirtieth day following the beginning of
such employment or the effective date of such agreement, whichever is the later * * *. A
union shop (one requiring union membership after hiring as a condition of employment for
the duration of the contract) is specifically authorized by 8(a) (3), and in NLRB v. General
Motors Corp., 373 U.S. 734, 83 S.Ct. 1453, 10 L.Ed.2d 670, the United States Supreme Court
recognized the agency shop (one requiring, as a condition of employment for the duration of
the contract, a worker to pay a fixed sum each month to defray expenses of the union,
whether or not he is a member of the union) as a form of union security permissible under
8(a) (3). Indeed, the high court in Local 357, Int'l Bhd. of Teamsters v. NLRB, 365 U.S. 667,
81 S.Ct. 835, 6 L.Ed.2d 11, decided that a nondiscriminatory hiring hall provision, if operated
in a democratic fashion, is legal and does not constitute a per se violation of S{a) {3).
8(a) (3). See also Local 100, United Ass'n of Journeymen v. Borden, 373 U.S. 690, 83 S.Ct.
1423, 10 L.Ed.2d 638.
It is thus apparent that the union security devices authorized by 8(a) (3) may, in some
instances, be the same devices prohibited by a state law authorized by 14(b). Justice White,
writing the first Schermerhorn opinion, Retail Clerks Int'l Ass'n, Local 1625 v. Schermerhorn,
373 U.S. 746, 751, 83 S.Ct. 1461, 1464, 10 L.Ed. 2d 678, 682, pointed up the problem in the
following language, As is immediately apparent from its language, 14(b) was designed to
prevent other sections of the Act from completely extinguishing state power over certain
union security arrangements * * *. The connection between the 8(a) (3) proviso and 14(b)
is clear. Whether they are perfectly coincident, we need not now decide, but unquestionably
they overlap to some extent. At the very least, the agreements requiring membership' in a
labor union which are expressly permitted by the proviso are the same membership'
agreements expressly placed within the reach of state law by 14(b) * * *. See also Algoma
Plywood & Veneer Co. v. Wisconsin Employment Relations Bd., 336 U.S. 301, 69 S.Ct. 584,
93 L.Ed. 691. In Schermerhorn I the high court favored state rather than federal determination
of the validity of an agency shop agreement, but did not decide the beginning point of the
states' power to act under 14(b). However, that issue was discussed upon reargument in
Schermerhorn II, Retail Clerks Int'l Ass'n, Local 1625 v. Schermerhorn, supra.
[Headnote 7]
Justice Douglas, writing for a unanimous court in Schermerhorn II, stated, As a result of
14(b), there will arise a wide variety of situations presenting problems of the accommodation
of state and federal jurisdiction in the union-security field. As noted, Algoma Plywood Co. v.
Wisconsin Board, supra, upheld the right of a State to reinstate with back pay an employee
discharged in violation of a state union-security law. On the other hand, picketing in order to
get an employer to execute an agreement to hire all union labor in violation of a state union
security statute lies exclusively in the federal domain {Local Union 429 v. Farnsworth &
Chambers Co.,
the federal domain (Local Union 429 v. Farnsworth & Chambers Co., 353 U.S. 969, and
Local No. 438 v. Curry, 371 U.S. 542), because state power, recognized by 14(b), begins
only with actual negotiation and execution of the type of agreement described by 14(b).
Absent such an agreement, conduct arguably an unfair labor practice would be a matter for
the National Labor Relations Board under Garmon. The quoted language, though dictum,
cannot be ignored, and must be deemed to rule the instant case. State power under 14(b)
begins only after the collective bargaining agreement between the employer and the union has
been signed. Accordingly, the union picketing here involved to induce the employer to sign a
collective bargaining agreement containing the union security hiring hall device was not
enjoinable, nor could such picketing be the predicate for a state court damage action.
Reversed, and the actions below are dismissed for want of jurisdiction.
McNamee, C. J., and Badt, J., concur.
____________
81 Nev. 7, 7 (1965) Tucker v. Mowbray
HORACE GOUCHER TUCKER, Petitioner, v. JOHN C. MOWBRAY, District Judge of the
Eighth Judicial District Court of the State of Nevada, in and for the County of Clark,
Respondent.
No. 4821
January 11, 1965 398 P.2d 244
Original proceeding in prohibition.
Proceedings against John C. Mowbray, District Judge, Eighth Judicial District Court, by
defendant in murder trial who had appealed from denial of motion for change of venue and
was refused stay of proceedings pending appeal. The Supreme Court, McNamee, J., held that
respondent court was not divested of jurisdiction to proceed with trial after notice of appeal
from order denying change of venue was filed.
Proceeding dismissed.
81 Nev. 7, 8 (1965) Tucker v. Mowbray
Harry E. Claiborne and John Manzonie, of Las Vegas, for Petitioner.
Edward G. Marshall, District Attorney, and Earl Gripentrog, Deputy District Attorney,
Clark County, for Respondent.
Criminal Law.
District court was not divested of jurisdiction to proceed with criminal prosecution after notice of appeal
from order denying change of venue had been filed.
OPINION
By the Court, McNamee, C. J.:
This is an original proceeding seeking a writ of prohibition.
An information was filed in respondent court charging petitioner with murder. Petitioner
entered a plea of not guilty to the charge. After a jury was selected for the trial, petitioner's
motion for a change of venue upon the ground that a fair trial could not be had in Clark
County was denied. Petitioner thereupon filed a notice of appeal from such denial. Upon
respondent's refusal to stay proceedings until such time as that appeal could be determined,
this proceeding was commenced, and an alternative writ was issued by this court arresting
proceedings in the court below.
The question presented is whether respondent was divested of jurisdiction to proceed with
the trial after notice of appeal from the order denying change of venue was filed.
This identical question was presented in the case of Hanley v. Zenoff, 81 Nev. 9, 398 P.2d
241,
1
decided this day, and the decision therein is controlling.
It is ordered that the alternative writ of prohibition heretofore issued herein be vacated and
that the petition for writ of prohibition be dismissed.
Thompson and Badt, JJ., concur.
____________________

1
The two cases were argued together.
____________
81 Nev. 9, 9 (1965) Hanley v. Zenoff
GRAMBY ANDREW HANLEY, Petitioner, v. HONORABLE DAVID ZENOFF,
District judge, Eighth Judicial District Court of the State of Nevada,
in and for the County of Clark, Respondent.
No. 4826
January 11, 1965 398 P.2d 241
Original proceedings in certiorari and prohibition. Action of respondent court annulled.
Proceedings by defendant in criminal trial for review of denial of motion to stay
proceedings pending appeal from denial of motion for change of venue and for prohibition,
brought against David Zenoff, District Judge, Eighth Judicial District Court. The supreme
Court, McNamee, C. J., held that the appeal did not cause trial court to lose jurisdiction to
proceed on matters not involved in the appeal, but because there had been an amendment to
the information materially changing offense charged, rearraignment was required and order
that defendant proceed to trial without rearraignment on amended information was annulled.
Petition for writ of prohibition dismissed.
Babcock & Sutton, of Las Vegas, for Petitioner.
Edward G. Marshall, District Attorney, and Earl Gripentrog, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
When amended information is filed which changes materially the information to which defendant has
entered plea, he must be arraigned on such amended information. NRS 174.130, 174.150, 174.530.
2. Criminal Law.
Insertion of names of additional witnesses on information does not require new arraignment to
information so amended. NRS 173.080, subd. 2.
3. Criminal Law.
Where information was amended to include additional witnesses and to delete word wilfully in
describing method of entry and to change violation from one under burglary statute to one under
manslaughter statute, after defendant had been arraigned on original information, rearraignment was
required, and order directing defendant to proceed to trial without being rearraigned would be annulled.
NRS 174.130, 174.150, 174.530.
4. Indictment and Information.
Information cannot be amended so as to charge an offense not shown by evidence taken at preliminary
examination. NRS 173.100, subd. 3.
5. Criminal Law.
An order denying an application for change of venue is appealable. NRS 2.110.
6. Criminal Law.
After jurisdiction has been vested in appellate court by appeal, lower court cannot proceed in any manner
so as to affect jurisdiction acquired by appellate court.
7. Criminal Law.
Upon filing of notice of appeal from motion denying change of venue, trial court does not lose
jurisdiction to proceed with trial pending determination of appeal. NRS 2.110.
8. Criminal Law.
Legislature did not intend by enactment of statute depriving trial court of jurisdiction after appeal is taken
to create situation whereby defendant could prevent his case from ever coming to trial by a series of
appeals. NRS 2.110.
OPINION
In December 1962 pursuant to NRS 173.080 an information was filed in Clark County
charging petitioner with first degree burglary in violation of NRS 205.060. Upon his
arraignment petitioner entered a plea of not guilty to this charge.
In August 1963 petitioner moved for a change of venue upon the ground that he could not
receive a fair and impartial trial in Clark County. Motion for change of venue was denied and
this action of the respondent court was affirmed on appeal. Hanley v. State, 80 Nev. 248, 391
P.2d 865.
On June 24, 1964 the district attorney filed his affidavit in the proceedings below which
states: Since the date of such filing [of the information] I have learned that the testimony of
the person or persons named in the Motion to Amend Information to which this affidavit
supports is necessary and material to the prosecution of this criminal action. Such facts were
unknown to me at the time of the filing of the information herein.
The motion to amend the information was granted, and on June 24, 1964 an amended
information was filed varying from the original information in the following respects: the
names of additional witnesses were added, in describing the nature of the entry the word
"wilfully" was deleted, and petitioner was charged with burglary in violation not of NRS
205.060, the burglary statute, but of NRS 200.040, the manslaughter statute.

varying from the original information in the following respects: the names of additional
witnesses were added, in describing the nature of the entry the word wilfully was deleted,
and petitioner was charged with burglary in violation not of NRS 205.060, the burglary
statute, but of NRS 200.040, the manslaughter statute.
Petitioner was never arraigned on the amended information and entered no plea thereto.
When he appeared for trial by jury on the charge set forth in the amended information, he
advised the court he had not been arraigned on the amended information, and he moved the
court to permit an arraignment thereon. This request was denied, and the respondent court
ordered petitioner to proceed to trial on the amended information without any plea having
been entered thereto.
After the jury was selected, petitioner again moved for a change of venue upon the ground
that a fair and impartial trial could not be had in Clark County. This motion was denied.
Petitioner then moved the court for a stay of proceedings in order to appeal the denial of the
motion for a change of venue. This motion also was denied. The day following petitioner
filed a written application for removal of the place of trial. By written order this application
was denied. From this written order of denial petitioner on October 15, 1964 filed an appeal
to this court which is now pending.
On October 26, 1964, pursuant to petitions therefor, this court arrested the proceedings in
the court below, and also by writ of certiorari directed respondent court to certify and return
to this court a full and complete transcript of its records and proceedings in this matter.
When an information is filed the defendant must be arraigned thereon. NRS 174.010. The
arraignment is made in part by reading the information to the defendant, delivering him a
copy thereof, and asking him whether he pleads guilty or not guilty thereto.
1
NRS 174.130.
If defendant requires it, he must be allowed a reasonable time, not less than one day, to
answer the information, and in answer thereto he may move to set it aside, demur, or enter a
plea. NRS 174.150. One of the grounds for demurrer is that more than one offense is
charged.
____________________

1
Other pleas allowable to an information are specified in NRS 174.320.
the grounds for demurrer is that more than one offense is charged. NRS 174.230(3). After his
plea, the defendant is entitled to at least two days to prepare for his trial. NRS 174.530.
[Headnote 1]
When an amended information is filed which changes materially the information to which
the defendant has entered a plea, he must be arraigned on such amended information to
provide him with the rights guaranteed by NRS 174.130 and NRS 174.150, and the right
afforded him by NRS 174.530 after his plea thereto.
[Headnotes 2, 3]
While the insertion of the names of additional witnesses would not require a new
arraignment to the information as so amended, NRS 173.080 (2), we hold that the amended
information by deleting the word wilfully in describing the nature of the entry and by
containing a charge of manslaughter in addition to the allegations of the particular facts
constituting first degree burglary, materially changed the original information, and the
petitioner should not be put on trial without being arraigned again. 14 Am.Jur., Criminal Law
253 (1938).
[Headnote 4]
We wish to add furthermore, without intending to weaken the foregoing, that an
information cannot be amended so as to charge an offense not shown by the evidence taken at
the preliminary examination. NRS 173.100(3). Whether or not evidence of manslaughter was
taken at the preliminary hearing does not appear from the record before us. If in fact it was
not, petitioner has never been afforded the right to object to the amended information on this
ground.
The action of respondent court in ordering petitioner to proceed to trial on the amended
information without a plea having been entered thereto is annulled.
The petition for writ of prohibition presents an independent question.
After the denial of petitioner's application for removal of the place of trial, petitioner filed
his notice of appeal from such denial. The issues presented thereby are whether in a criminal
action an appeal lies from an order denying a motion for change of venue and, if so, does
the trial court, upon the filing of the notice of appeal thereupon, lose jurisdiction to
proceed with the trial pending the determination of the appeal?
whether in a criminal action an appeal lies from an order denying a motion for change of
venue and, if so, does the trial court, upon the filing of the notice of appeal thereupon, lose
jurisdiction to proceed with the trial pending the determination of the appeal?
[Headnote 5]
The first of these issues is determined by NRS 2.110 as construed by State v. Alsup, 68
Nev. 45, 226 P.2d 801, which settles the law in this state that an order denying an application
for a change of venue is appealable.
The second issue is not as easily disposed of.
[Headnote 6]
After jurisdiction has been vested in an appellate court by the taking of an appeal the lower
court cannot proceed in any manner so as to affect the jurisdiction acquired by the appellate
court. State v. Jackson, 228 Or. 371, 365 P.2d 294; State v. Superior Court, 86 Ariz. 231, 344
P.2d 736; People v. Superior Court, 140 Cal.App.2d 510, 295 P.2d 464. This rule however
has no application to the situation where an appeal not authorized by statute is taken. State v.
Haynes, 232 Or. 330, 375 P.2d 550. Also, as a second exception, it does not apply to divest a
trial court of jurisdiction to proceed in matters not involved in the appeal. 4 Am.Jur.2d,
Appeal and Error 357 (1962). In our opinion the present case falls within the second
exception.
[Headnote 7]
The matter involved in the actual trial of a criminal action is the guilt or innocence of the
defendant. If that issue is determined adversely to the defendant because he did not have a fair
and impartial jury trial, his conviction resulting from such determination would be voided by
a favorable determination of his appeal from the denial of his motion for change of venue,
which appeal is concerned only with the question whether defendant can have a fair trial in
Clark County.
As a result of our conclusion on this issue the fact that a defendant in some instances will
be subjected to an unnecessary trial is not persuasive. Such is the case in those jurisdictions,
as in California, where no appeal lies from an order denying a change of venue, and where
the error, if any, can be raised only on an appeal from the judgment of conviction.
lies from an order denying a change of venue, and where the error, if any, can be raised only
on an appeal from the judgment of conviction.
If we were to hold otherwise a defendant would be able to prevent his case from ever
coming to trial.
[Headnote 8]
In the present case, for instance, a jury was selected on October 14, 1964. The application
for change of the place of trial has required the panel to be excused from that date until not
only this prohibition proceeding has been concluded but also until our determination of the
appeal from the order denying the change of venue. By the time all of these matters are
concluded it is probable that one or more of the selected jurors will not be available for the
trial. In such event the parties would be required to complete the panel. One or more
substitute jurors would have to be selected. After such selection, defendant could then apply
for a change of the place of trial, and upon a denial of such application, he could appeal
therefrom. His appeal from such denial again would stay the trial. This could go on without
end. We will not credit the legislature in its enactment of NRS 2.110 with an intent to create
the unhealthy situation which would result in depriving a trial court of jurisdiction to proceed
with the trial after such an interlocutory appeal.
It is ordered that the alternative writ of prohibition heretofore issued herein be vacated and
that the petition for writ of prohibition be dismissed.
____________
81 Nev. 15, 15 (1965) Adelson v. Wilson & Co.
MERVIN ADELSON; NATHAN ADELSON, Also Known as N. ADELSON,
Appellants, v. WILSON & CO., INC., A Corporation, Respondent.
No. 4783
January 14, 1965 398 P.2d 106
Appeal from the Eighth Judicial District Court, Clark County; John Mowbray, Judge.
Action on guaranties. The lower court rendered judgment for plaintiffs and defendant
appealed. The Supreme Court, Badt, J., held that provision in guaranty agreements that
creditor's records should be conclusive with respect to amounts, times and places of delivery
of merchandise, and of balance due, was void as contrary to public policy.
Reversed.
Lionel & Gunderson, of Las Vegas, for Appellants.
Coulthard & Smith, of Las Vegas, for Respondent.
1. Contracts.
Provision in guaranty agreements that creditor's records should be conclusive with respect to amounts,
times and places of delivery of merchandise, and of balance due, was void as contrary to public policy.
2. Guaranty.
Evidence of whether merchandise was supplied to parent corporation or to subsidiary was insufficient to
warrant recovery on guaranty of subsidiary's indebtedness, made before affiliation with parent corporation.
3. Guaranty.
Guaranties of payment for merchandise sold to subsidiary corporation could not be extended to
merchandise sold to parent corporation where guaranties were executed before affiliation of subsidiary with
parent.
OPINION
By the Court, Badt, J.:
Mervin and Nathan Adelson have appealed from a judgment entered against them by
Wilson & Co., respondent herein, based upon two written guaranties of payment to Wilson
for goods, wares, and merchandise sold to Adelson, Inc. The guaranties executed,
respectively, by Mervin and Nathan Adelson guaranteed "prompt and punctual payment to
Wilson & Co., Inc., of any account now owing from purchaser and for all goods, wares and
merchandise hereafter sold and delivered by Wilson & Co., Inc., to said purchaser." The
guaranty also included the following provision: "The records of Wilson & Co., Inc., shall be
conclusive with respect to the amounts, times and places of delivery of any and all
merchandise, and the balance due and owing to Wilson & Co., Inc., by said purchaser."
sold to Adelson, Inc. The guaranties executed, respectively, by Mervin and Nathan Adelson
guaranteed prompt and punctual payment to Wilson & Co., Inc., of any account now owing
from purchaser and for all goods, wares and merchandise hereafter sold and delivered by
Wilson & Co., Inc., to said purchaser. The guaranty also included the following provision:
The records of Wilson & Co., Inc., shall be conclusive with respect to the amounts, times
and places of delivery of any and all merchandise, and the balance due and owing to Wilson
& Co., Inc., by said purchaser.
The issues presented to the court below were (1) whether the merchandise in question had
actually been sold and delivered by Wilson & Co. to Adelson, Inc.; (2) whether the liability of
the two Adelsons upon their respective guaranties was discharged by Wilson & Co.'s
acceptance of stock in Reorganized Fox Markets pursuant to a bankruptcy reorganization
plan; and (3) whether the respondent Wilson & Co. was precluded from maintaining a suit in
this state under the provisions of NRS 80.210, because it was engaged in intrastate business
in Nevada.
The court below made findings in part as follows:
6. That between the 21st day of February, 1961, and the 26th day of April, 1961, the
plaintiff, in reliance upon each of the aforesaid Guaranties, sold and delivered to Adelson,
Inc., meat and meat products, the reasonable value of which was the sum of $13,942.17.
* * * * *
11. That none of the meats and meat products for which recovery is sought by plaintiff
were sold or delivered by plaintiff to Fox Markets, Inc., a California corporation.
* * * * *
13. That in March, 1961, Adelson, Inc. filed its Petition for Arrangement under Chapter
XI of the Bankruptcy Act, but that no Plan of Arrangement was ever confirmed under said
Chapter.
14. That on March 7, 1962 said Adelson, Inc. filed its Petition in the U.S. District Court,
District of California, Central Division, under Chapter X of the Bankruptcy Act, and that
the said Petition was approved by that Court on March 7, 1962.
its Petition in the U.S. District Court, District of California, Central Division, under Chapter
X of the Bankruptcy Act, and that the said Petition was approved by that Court on March 7,
1962.
15. That plaintiff's claims, which constitute the basis for this action, were set forth in the
debtor's schedules thereunder.
16. That a Plan of Reorganization was approved and filed in said Court in December,
1962, which provided in part:
(d) In full satisfaction and extinguishment of their claims unsecured creditors will
receive one share of stock of the Reorganized Fox Markets, Inc., for each $25.00 of claims
held.'
17. That stock of the Reorganized Fox Markets, Inc. was issued to and received by the
plaintiff which now holds the same.
Judgment was accordingly entered against Mervin and Nathan Adelson for $13,942.17,
together with an attorney fee and costs. On appeal to this court it is asserted that findings No.
6 and No. 11 are without support in the evidence and that the evidence establishes the fact
that the meat was sold and delivered to Fox Markets, Inc.
As we hold that the appeal is well taken and that the judgment must be reversed on the
first assignment of error, it is unnecessary for us to pass on the further assignments.
The evidence developed many facts not included in the court's formal findings and it
becomes necessary to consider such facts.
In December, 1959, Nathan and Mervin Adelson sold their stock in Adelson, Inc., to Fox
Markets, Inc., a retail chain of grocery stores with its principal office in Los Angeles. The
Adelsons resigned as officers and directors of the corporation and Nathan Adelson became
the general manager of the three Las Vegas stores. After the stores were sold to Fox Markets,
Inc., they were absorbed into the Fox chain of stores. The names of the stores were changed
to Fox Market Town, and each store was given a "Fox" number by which it would be
known throughout the chain of stores, namely, Fox Stores Nos.
each store was given a Fox number by which it would be known throughout the chain of
stores, namely, Fox Stores Nos. 62, 63, and 64.
The meat sold in these three stores was supplied by Wilson & Co., both before and after
the sale of stock to Fox Markets, Inc., but the procedure by which the meat was ordered and
paid for was entirely different. When the Adelsons were the stockholders, meat orders were
sent from Las Vegas directly to Wilson & Co. in California who delivered the meat ordered to
the Las Vegas stores as indicated. Payment was made by Nathan Adelson by check from Las
Vegas. After control of the corporation was assumed by Fox Markets, Inc., meat was no
longer bought from Wilson & Co.'s local salesman. This was because of Wilson's credit
policy concerning chain stores which required all chain store orders to be placed directly
through the beef department.
After Fox Markets, Inc., assumed control of the corporation, meat orders were placed by
the manager of the meat department of the three Las Vegas stores to Fox's Los Angeles
office. Fox's central buying office in Los Angeles would then place a bulk meat order by
phone to Wilson & Co. for both California and Las Vegas stores. (Such Las Vegas stores as
here and later referred to were in reality Fox Stores Nos. 62, 63, and 64.) A Fox meat buyer
would then go to Wilson's plant and would inspect and select the meat, accepting the meat by
stamping the side of the meat with a stamp that said Fox on it. The buyer would later phone
the Wilson plant and tell how the meat was to be distributed. In other words, he instructed as
to the stores to which the meat should be sent. An invoice for each store was prepared which
showed what meat was to be distributed to that store. After the invoice had been approved by
Wilson & Co.'s credit department, the invoice was sent with the meat to the proper store. The
invoices for the Las Vegas stores recited that the meat had been sold to Fox, Fox
Markets, Fox Market Town, or Market Town, Inc. These invoices were receipted by
the Las Vegas stores by a fox-head receipt stamp and a signature.
receipted by the Las Vegas stores by a fox-head receipt stamp and a signature.
After the sale of control, Wilson & Co. sent weekly statements for all merchandise it
shipped to the Las Vegas stores to the executive accounting offices of Fox Markets, Inc., in
Los Angeles. Payment for merchandise Wilson shipped to these three stores was made by
checks payable by Fox Markets, Inc., and signed by Edwin J. Fox. And after December, 1959,
the ledger cards of Wilson & Co. representing the three Las Vegas stores were changed so
that the address of Adelson, Inc., was not the former Las Vegas address, but Fox Markets,
Inc.'s address in Los Angeles.
On March 7, 1962, Fox Markets, Inc., Adelson, Inc., and other corporations in the Fox
chain of stores filed petitions for reorganization under Chapter X of the Bankruptcy Act. Fox
Markets, Inc., was treated as the principal debtor and the other corporations, including
Adelson, Inc., were called subsidiaries. A Plan of Reorganization was approved under which
the unsecured creditors were to receive one share of stock in Reorganized Fox Markets for
each $25 of claims held, in full satisfaction and extinguishment of their claims. The debt
which is here in controversy was presented and approved, and Wilson & Co. was given its
proper amount of shares of this stock.
Article I of the Plan of Reorganization stated that the present debtor Fox Markets, Inc.,
owns all the capital stock of the other debtors. Much of the credit granted to the subsidiary
debtors was granted in reliance upon the financial position of the principal debtor Fox
Markets, Inc. The accounting work of the debtors was administered by a central accounting
office of Fox Markets, Inc., and it is believed that payment of liabilities was made out of any
funds available without regard to the origination thereof among the several debtors, and that
it would be difficult (if not impossible) and inordinately expensive to account for the assets
and liabilities of the several debtors separately and to trace the status of the intercompany
accounts between them. It was further provided that the debtors would be treated as a
single debtor and administered as a single estate for all purposes in relation to the plan.
was further provided that the debtors would be treated as a single debtor and administered as
a single estate for all purposes in relation to the plan.
Many pages are devoted to the treatment of the secured creditors. The principal provision
with reference to unsecured creditors was as follows: In full satisfaction and extinguishment
of their claims, unsecured creditors of the Debtors shall receive one share of the common
stock of the Reorganized Fox Markets, Inc. for every $25.00 of unsecured claim held by them
as approved and allowed, or otherwise determined by the Court. It is admitted that Wilson &
Co. received stock of the Reorganized Fox Markets, Inc., in accordance with the plan.
Respondent makes much of the point that the trial court was aware of the fact that the
claim of Wilson & Co. was listed as a debt of Adelson, Inc. No part of the bankruptcy record
in evidence substantiates this. That part of the bankruptcy record in evidence, comprising the
reorganization plan as proposed, definitely indicates that Fox Markets, Inc., was the principal
debtor and that all other corporations, including Adelson, Inc., were subsidiaries.
1

Respondent also makes much of the fact that the witness Bergman testified that the
invoices upon the items involved herein reflected that the meat in question had been sold and
delivered to Adelson, Inc. But it appears definitely that Bergman was the credit manager of
Wilson and had no knowledge of deliveries. The court was interested in Bergman's testimony.
It inquired: How do you know the merchandise was delivered, if you know? You testified
that you did. How do you know that it was? The witness's answer, if it meant anything,
meant that he didn't know of his own knowledge.
After pointing out these items, respondent states:
Respondent will not waste the time of the court cataloguing the record to substantiate the
obvious fact that while some of the evidence was conflicting, there was more than adequate
evidence to support the Findings of Fact which appellants assert are erroneous."
____________________

1
See later discussion of the identification of the three Adelson stores as part of the Fox chain of from 50 to
60 stores.
was more than adequate evidence to support the Findings of Fact which appellants assert are
erroneous.
Respondent having thus elected not to waste the time of the court in pointing to the
places in the record where there would be found evidence to support the finding that the meat
had been sold and delivered to Adelson, Inc. (in violation of the rule requiring such reference
to the record), the court has of necessity been forced to examine the entire record to see if the
finding of sale and delivery of the meat to Adelson, Inc., was supported. All it could find was
to the contrary.
Respondent does not question the general principle that a guarantor's liability is strictly
construed and its specific application that liability will not be extended beyond the precise
provisions of his guaranty to include a principal other than the one expressly named therein.
See Horton v. Ruhling, 3 Nev. 498, 503; Quillen v. Arnold, 12 Nev. 234, 244; Truckee Lodge
v. Wood, 14 Nev. 293, 310.
After the transfer of all the stock of Adelson, Inc., to Fox and the withdrawal of Mervin
and Nathan Adelson as officers and directors of Adelson, Inc., and their being supplanted by
the officers of Fox Markets, Inc., and the ordering of meat from Wilson & Co. by Fox
Markets, Inc., the credit status of the latter was examined by Wilson & Co. Wilson's credit
manager testified that after the examination of Fox's credit status, Wilson increased the credit
rating of Adelson, Inc., without obtaining any financial statement from either of the
individual Adelsons.
It should be noted that two of Wilson's employees thought that a bulk sale was completed
to Fox before instructions concerning distribution were ever given. J. J. Barton, Wilson's key
account salesman for chain stores, testified that the order would come into his office, he and
Fox's buyer coming to terms on price and quantity. Then he would notify Wilson's production
department and tell them to get this order ready. Thereafter, Fox's buyer would call Wilson &
Co. and give instructions as to how the meat was to be distributed among their many stores.
among their many stores. But when J. J. Barton took the initial order, he considered the sale
consummated. Barton testified: I made the sale. It was a bulk sale. The order department at
Wilson was breaking down this large sale made to all the stores at Fox Markets. When I got
this order from Kramer or one of those assistant buyers in there I just knew it would go to one
of their stores, but not how much of the order would go. And Charles A. Barbour, manager
of Wilson's beef, lamb, and veal department, testified that he considered the sale was made to
Fox once Fox's buyer came over and accepted the meat which was ordered in bulk by placing
the Fox stamp on the meat. He would put the stamp on each quarter in violet ink to establish
acceptance and at that time the sale was made of that particular animal. It seems clear that in
each of such sales the sale was made to Fox Markets, Inc., and Fox would send the meat to
various of its stores. These included the three Adelson stores which were then Fox stores Nos.
62, 63, or 64. All payments for meat shipped to the Las Vegas stores were made by Fox
Markets, Inc., by checks signed by Edwin Fox.
Respondent relies on a combination of two circumstances to substantiate evidence of a
sale to Adelson, Inc. The first circumstance is the provision in the guaranty which states:
The records of Wilson & Co., Inc. shall be conclusive with respect to the amounts, times and
places of delivery of any and all merchandise, and the balance due and owing to Wilson &
Co., Inc. by said Purchaser.
The second circumstance grows out of the ledger sheets admitted in evidence in behalf of
the plaintiff. These were offered to show that Wilson had actually charged to Adelson, Inc.,
shipments of meat over a period from February to April, 1961. They consist of five sheets
itemized on both sides. Commencing in February, 1960, the first sheet shows charges to
Adelson, Inc., dba Market Town, address 22 E. Oakey Blvd., Las Vegas, Nevada, with such
address inked out and changed in ink to read 4411 W. Slauson Ave., Los Angeles 43,
California. The Slauson address is admitted to be the main office of Fox Markets, Inc. On
the other side of the same ledger sheet the typed words "Adelson, Inc., dba" are
scratched out in pencil leaving the name simply as "Market Town." Other cards give the
name as Adelson, Inc., or Adelson, Inc.,
the main office of Fox Markets, Inc. On the other side of the same ledger sheet the typed
words Adelson, Inc., dba are scratched out in pencil leaving the name simply as Market
Town. Other cards give the name as Adelson, Inc., or Adelson, Inc., Market Town, but all
give the address 4411 W. Slauson, Los Angeles, California. Without the clause in the contract
that the records of Wilson & Co. shall be conclusive not only as to the amounts, times, and
places of delivery, but also as to the balance due and owing to Wilson & Co. by the
purchaser, one would be inclined to conclude that the charges, although made to Adelson,
Inc., were directed against Fox Markets, Inc., because the statements were sent to their
address.
We are thus lead to the effect of the contract clause as quoted. The authorities seem to be
equally divided as to the legal effect of such a clause. Professor Wigmore sees no danger in it.
Arnold, in his work on Suretyship & Guaranty, and Stearns on Suretyship hold such clause to
be void as against public policy. The matter is discussed at some length in the annotation in
68 A.L.R. 330 with reference to the validity of such stipulation. The annotation follows the
case of Fidelity & Deposit Co. v. Davis, 129 Kan. 790, 284 P. 430, 68 A.L.R. 321, which
contains an extensive discussion of the entire subject and of the conflicting cases. The
question of public policy is fully discussed. The court finally adopts the view that an
agreement of this nature between the principal and surety is void as against public policy. A
person cannot waive the protection which the law affords. The surety cannot, by his ex parte
acts, conclusively determine his own cause of action. The courts cannot have rules of law
prescribed by acts of the parties. Fidelity & Deposit Co. v. Davis, 284 P. 430, 432, quoting
Arnold on Suretyship & Guaranty 231 (1927).
[Headnotes 1, 2]
The court cites with approval Stearns on Suretyship 242 (3d Ed. 1922), as citing the
result of validating such clauses: * * * the common law right of indemnity is thereby
enlarged, as the amount recoverable is no longer the amount due as shall be ascertained by
judicial determination, but such sum as the surety may pay to the creditor, whether more
or less than the sum due.
determination, but such sum as the surety may pay to the creditor, whether more or less than
the sum due.
2
We are convinced by the reasoning of the Kansas court that the view taken by
it is the correct one, and that the clause in question is void on the grounds of public policy. By
reason of this conclusion, the uncertainty of the ledger sheets causes them to lose all their
persuasiveness in view of the other evidence in the case. The testimony of the employees of
Wilson & Co., Inc., following the taking over of Adelson, Inc., by Fox, with regard to the
bulk sales made to Fox Markets, Inc., for distribution to all of the Fox Stores, which included
the three Las Vegas stores, cannot be explained away. This conclusion is strengthened by the
recitals in the Reorganization Plan and by Wilson's acceptance of stock of Reorganized Fox
Markets by reason of its acknowledged status as an unsecured creditor.
[Headnote 3]
The guaranties signed by Mervin Adelson and Nathan Adelson for the payment of meat
sold to Adelson, Inc., cannot be extended to meat sold to Fox Markets, and we are
accordingly compelled to reverse the judgment for that reason.
The judgment is reversed with costs, and remanded to the court below with directions to
enter a judgment in favor of appellants, defendants below.
McNamee, C. J., and Thompson, J., concur.
____________________

2
On the same point the Supreme Court of Kansas in Dearborn Motors Credit Co. v. Neel, 184 Kan. 437, 337
P.2d 992, some 29 years later, similarly disposed of the plea of such clause by saying that it was not raised in the
court below.
____________
81 Nev. 25, 25 (1965) Bean v. State
THOMAS LEE BEAN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 4669
January 22, 1965 398 P.2d 251
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
The defendant was convicted of first degree murder. The trial court rendered judgment,
and the defendant appealed. The Supreme Court, Thompson, J., held that accused was not
denied assistance of counsel, that his privilege against self-incrimination was not violated,
and that there was no reversible error in respect to the giving of instructions or the admission
of evidence or the prosecutor's argument.
Judgment affirmed.
Leslie M. Fry and L. Mack Fry, of Reno, for Appellant.
Harvey Dickerson, Attorney General, Carson City; William J. Raggio, District Attorney,
Washoe County, Reno, and R. Gaynor Berry, Deputy District Attorney, for Respondent.
1. Criminal Law.
One who was not advised of his right to remain silent was not denied assistance of counsel,
notwithstanding that he had been taken into police custody and that the police were about to commence a
process of interrogation to elicit incriminating statements and that they did so, where he had not requested
and been denied an opportunity to consult with counsel. U.S.C.A.Const. Amends. 6, 14.
2. Criminal Law.
Defendant's question to police officer Have you ever been in a position where you have asked for help
and no one helped you? was not request for counsel within rule that failure to warn of right to remain
silent is denial of assistance of counsel where investigation has ceased to be a general inquiry into an
unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police
custody, the police carry out a process of interrogation that lends itself to eliciting incriminating statements,
and suspect has requested and been denied an opportunity to consult with his lawyer. U.S.C.A.Const.
Amends. 6, 14.
81 Nev. 25, 26 (1965) Bean v. State
3. Courts.
Federal standards are to be applied to determine whether the Fifth Amendment privilege against
self-incrimination has been transgressed. U.S.C.A.Const. Amends. 5, 14.
4. Criminal Law.
Privilege against self-incrimination was not violated by failure to advise defendant of his absolute right to
remain silent when police interrogated him, where defendant was 18 years old, of average intelligence
(though a retarded reader), and not unfamiliar with criminal processes, and he wanted to talk and answered
all inquiries freely and apparently in spirit of complete cooperation. U.S.C.A.Const. Amends. 5, 14.
5. Criminal Law.
In testing voluntariness of confession, the failure to advise defendant of his absolute right to remain silent
during police interrogation is but one of many factors to be considered. U.S.C.A.Const. Amends. 5, 14.
6. Criminal Law.
The assertion of denial of right to assistance of counsel and of violation of privilege against
self-incrimination must be evaluated by keeping in mind absence of objection to introduction of transcribed
confessions and testimony about them and defense of insanity. U.S.C.A.Const. Amends 5, 6, 14.
7. Criminal Law.
The refusal in murder prosecution to give defendant's proposed instruction dealing with consequences of
verdict of not guilty by reason of insanity was error; however the error was not prejudicial where defense
counsel's jury summation, in substance, supplied the information that defendant, if adjudged insane, would
be confined in state hospital until discharged in accordance with law. NRS 169.110, 175.445.
8. Criminal Law.
When the prosecution relies on a specific kind of weapon, it is error to admit evidence that other weapons
were found in his possession, for such evidence tends to show, not that he committed the crime, but only
that he is the sort of person who carries deadly weapons.
9. Criminal Law.
Introduction into evidence of rifle, pistol and holster, and some cartridges owned by defendant and found
in his automobile was error, where charge was that the murder was by strangling and stabbing; however,
the error was harmless where the mass of relevant evidence establishing the guilt deadened the effect of
these unrelated items and testimony had already been received through defendant's confession as to the
rifle.
10. Criminal Law.
Prosecutor's reference to parole and clemency in closing argument to jury was not error, where the
comment was not inaccurate, and it was not misleading, and it did not enlarge upon the matter of parole,
the requirements for eligibility or the working of the scheme. NRS 200.030.
11. Criminal Law.
The M'Naghten test of insanity prevails in Nevada.
81 Nev. 25, 27 (1965) Bean v. State
12. Criminal Law.
It is preferable to argue to jury objectively rather than subjectively.
13. Criminal Law.
Objection must be made to I believe statements of prosecutor during summation if this type of
argument is to merit serious consideration on review.
14. Criminal Law.
If the prosecutor's statement during summation to jury that There is only one person in the courtroom
today that can tell us that is so was an indirect reference to defendant's failure to testify, it was within
permissible limits.
15. Criminal Law.
Reversible error did not occur because jurors were not kept together, in charge of a proper officer, for
duration of trial, where there was no request that jurors be kept together and there was no affirmative
showing of prejudice. NRS 175.320.
OPINION
This appeal is from a conviction of first degree murder and the sentence of death. On April
5, 1963, Tom Bean, then 18 years old, entered the apartment of Sonja McCaskie and killed
her. He had never seen her before. The circumstances of the crime were unbelievably ghastly.
Death was caused by strangulation. The victim had been raped, her body mutilated,
dismembered and placed in a wooden chest. The following day Bean pawned a camera which
he had stolen from Miss McCaskie's apartment. This led to his apprehension on April 13,
1963. When taken into custody he confessed voluntarily and in detail. He did not request
counsel, nor was he advised of his right to remain silent. On April 24, 1963, with the advice
of counsel of his choice, he waived a preliminary hearing. Five days later the state, by
information, charged him with murder. When arraigned, he pleaded not guilty. His defense
was insanity. Before trial, defense counsel sought a court order authorizing him to employ, at
public expense, two psychiatrists, to examine Bean and testify on his behalf. The court
authorized up to $500 to enable the defendant to obtain the services of a qualified forensic
psychiatrist of his own selection for the purpose of examining and offering testimony on
behalf of the defendant."
81 Nev. 25, 28 (1965) Bean v. State
examining and offering testimony on behalf of the defendant. Doctor David Wilson was
selected and employed for that purpose.
Subsequently a trial jury was obtained. Though it is a matter of common knowledge that
the homicide had received extensive local publicity, Bean did not seek a change of venue.
The case proceeded to trial. Substantial evidence of Bean's guilt was introduced, apart from
his confessions of guilt. Defense counsel did not object to the transcribed confessions which
Bean had given, first at the police station following his arrest, and later on the same day at the
crime scene. Indeed, following the testimony of the police officer who related the confession
which Bean had given at the police station, defense counsel requested that the recorded
transcript of that confession be introduced in evidence, and this was done. The confessions
described, with particularity, the bizarre crime. Objection was not made to the introduction of
exhibits that were particularly horrifyingenlarged (16 x 20) colored photographs of the
victim, showing her mutilated and dismembered body. After the state had completed its case
in chief, the defense offered two witnesses, the psychiatrist Wilson who opined that Bean was
insane under the M'Naghten test, and a newspaper reporter whose testimony does not relate to
the issues of this appeal. Bean did not testify. In rebuttal the state offered the testimony of two
psychiatrists, Doctors Rappaport and Toller, who said that Bean was not insane under the
M'Naghten standard when he killed Sonja McCaskie. The jury found Bean guilty of first
degree murder, and specified the penalty of death. This appeal followed.
1
Additional facts
will be mentioned as the assignments of error are separately discussed.
[Headnotes 1, 2]
1. Federal Constitutional Rights. The underlying theme of this appeal is that Bean was
not accorded a fair trial as required by the federal constitution. Particular emphasis is placed
upon the recent expression of the United States Supreme Court in Escobedo v. Illinois, 37S
U.S. 47S, S4 S.Ct.
____________________

1
Defendant's trial counsel died while this appeal was pending and before any briefs were written. We
appointed counsel to complete the appeal.
81 Nev. 25, 29 (1965) Bean v. State
of the United States Supreme Court in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12
L.Ed.2d 977, dealing with the Sixth Amendment right to counsel. An effort is made to bring
this case within the sweep of Escobedo. The holding of that case is carefully delineated and
precisely stated. It is: We hold, therefore, that where, as here, the investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a particular suspect, the
suspect has been taken into police custody, the police carry out a process of interrogation that
lends itself to eliciting incriminating statements, the suspect has requested and been denied an
opportunity to consult with his lawyer, and the police have not effectively warned him of his
absolute constitutional right to remain silent, the accused has been denied the Assistance of
Counsel' in violation of the Sixth Amendment to the Constitution as made obligatory upon
the States by the Fourteenth Amendment,' Gideon v. Wainright, 372 U.S. 335 at 342, 83 S.Ct.
792, 9 L.Ed.2d 799, and that no statement elicited by the police during the interrogation may
be used against him at a criminal trial. Each of the factors specified must occur to make that
case a controlling precedent. Here it is true that the investigation had begun to focus upon
Bean; that he had been taken into police custody; that the police were about to commence a
process of interrogation to elicit incriminating statements, and did so; that Bean was not
warned of his absolute constitutional right to remain silent. However, Bean did not request
counsel, nor was he denied the assistance of counsel. Absent such a request, and denial of
counsel, the rule of Escobedo does not apply. The suggestion is advanced that the testimony
of a police officer given during the state's case in chief, reflects a request for counsel. That
testimony is: Q. All right. Then what occurred next? A. We took him in the front of the
building, and again we headed toward Chief Broadhead's office and into the office, and we
placed Mr. Bean in a chair. Q. All right. What occurred then? A. Well, the District Attorney
was there, our Assistant Chief was there, among other people, officers. I don't recall just how
many or who they were. And Tom Bean asked me one time, while he was sitting in the
chair in Chief Broadhead's office, 'May I ask you a question, sir?' And I said, 'Yes, Tom, go
ahead.' And he said, 'Have you ever been in a position where you have asked for help and
no one helped you?' Q.
81 Nev. 25, 30 (1965) Bean v. State
asked me one time, while he was sitting in the chair in Chief Broadhead's office, May I ask
you a question, sir?' And I said, Yes, Tom, go ahead.' And he said, Have you ever been in a
position where you have asked for help and no one helped you?' Q. All right, and then what
happened after that? Was there other conversation? A. No, that is the last conversation that I
had with Tom Bean or the conversation I recall. Q. All right. And then what was done with
Bean at that time? A. At that time our Assistant Chief and the District Attorney and others
took over.
2

Bean's question to the officer is not a request for the assistance of counsel. It is merely the
recitation of a past event, the circumstances of which are unknown. The doctrine of Escobedo
does not rule this case.
3

The appellant also directs our attention to Massiah v. United States, 377 U.S. 201, 84 S.Ct.
1199, 12 L.Ed.2d 246, and People v. Dorado, 40 Cal.Rptr. 264, 394 P.2d 952. In Massiah, the
right to counsel was extended to an indicted defendant under interrogation by the police, and
it held inadmissible his admissions of guilt made to the officers during such interrogation.
Massiah is not in point with this case. Bean had counsel when a formal charge was filed
against him. In Morford v. State, 80 Nev. 438, 395 P.2d 861, we discussed the Dorado case,
pointing out that it is an extension of the rule announced in Escobedo, and chose not to follow
it.
[Headnotes 3-5]
Having determined that Bean's Sixth Amendment right to counsel was not violated, we
turn to discuss briefly the Fifth Amendment privilege against self incrimination. In Malloy v.
Hogan, 373 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, the United States Supreme Court held that
the Fifth Amendment privilege against self incrimination is applicable to the states through
the Fourteenth Amendment.
____________________

2
The interrogation by the district attorney and the assistant chief then commenced. The transcription of it
does not show a request for counsel and a denial.

3
The high court handed down Escobedo after Bean was tried, convicted and sentenced and while this appeal
was pending. Were the Escobedo rule applicable we would then have to decide whether it has retrospective
effect. However, we do not reach this question.
81 Nev. 25, 31 (1965) Bean v. State
Fourteenth Amendment. The American system of criminal prosecution is accusatorial, not
inquisitorial, and the Fifth Amendment privilege is its essential mainstay. Federal standards
are to be applied to determine whether the privilege has been transgressed. We have
mentioned that Bean gave two confessions. Each was transcribed and received in evidence
without objection. The first was given at the police station following his arrest. Later, the
same day, he accompanied law enforcement officers to the crime scene and explained in
detail the sequence of his actions in the McCaskie apartment on April 5, 1963. No promise
was made or inducement offered for his statements. He was not intimidated. Trickery was not
practiced. No improper influence was brought to bear. However, it is the fact that he was not
advised of his absolute right to remain silent. Because of this omission alone, it is argued that
his Fifth Amendment privilege was violated. We do not agree. In testing the voluntariness of
a confession this fact is but one of many to be considered. Harris v. South Carolina, 338 U.S.
68, 69 S.Ct. 1354, 93 L.Ed. 1815. The totality of the circumstances must be examined. Bean
was 18 years old, of average intelligence (though a retarded reader), and not unfamiliar with
criminal processes. He had been arrested before. He had lived at the State Reformatory near
Elko, Nevada. After he had been fingerprinted and footprinted at the police station he bolted
and ran out the front door. Police officers gave chase. Some shots were fired. Bean was
caught, and he asked, Who was shooting at me? Why didn't they hit me? When he was
returned to the police station, while in the presence of the district attorney and the assistant
chief, and just before their interrogation commenced, he said, Why didn't he shoot to kill
me? I just wished you would have killed me. As we read the recorded confessions, in the
light of what had previously occurred, Bean wanted to talk. Indeed, before the interrogation
was commenced, Bean said, Yes, I knew I was nailed when I first come in. I knew that when
they took my footprints. Thereafter he answered all inquiries freely and apparently in the
spirit of complete cooperation. In such circumstances we cannot conclude that the failure to
warn Bean of his right to remain silent somehow made his otherwise voluntary utterances
constitutionally inadmissible on trial.
81 Nev. 25, 32 (1965) Bean v. State
warn Bean of his right to remain silent somehow made his otherwise voluntary utterances
constitutionally inadmissible on trial. State v. Gambetta, 66 Nev. 317, 208 P.2d 1059. Federal
standards do not dictate a different conclusion. Powers v. United States, 223 U.S. 303, 32
S.Ct. 281, 56 L.Ed. 448; Turner v. United States, 4 Cir., 222 F.2d 926; Annot., 1 L.Ed.2d
1735.
[Headnote 6]
Then, too, there is an additional factor present here which sets this case apart from others
mentioned herein. As already noted, the defense was insanity. Defense counsel did not object
to the introduction of the transcribed confessions, nor to testimony about them. Neither did he
object to the enlarged colored photographs portraying horror.
4
It may well have been defense
counsel's belief that the confessions and the colored photographs were the best evidence, the
most persuasive evidence of Bean's insanity. We do not know. However, it is our view that
the defense of insanity casts a different complexion upon the trial than is the case where such
a defense is not asserted. Accordingly, the assertions that his Fifth and Sixth Amendment
rights were transgressed, must be evaluated with the absence of objection and with this
defense in mind. To put it differently, had these rights been ignored in fact (we have held that
they were not), still the failure to object on constitutional grounds in view of the insanity
defense, would present an entirely different question than is involved in any of the cases
heretofore discussed. It is seldom wise for an appellate court to second guess competent
trial counsel.
Finally, the thought is offered that the total atmosphere surrounding this crime, waiver of a
preliminary hearing, the pre-trial publicity, the failure to request a change of venue, the
absence of objection to horrifying evidence, together with the matters already discussed,
inevitably lead to the conclusion that due process was denied Bean. We cannot construct a
denial of due process out of thin air. The pre-trial publicity is no part of the record on
appeal.
____________________

4
We do not intimate any view as to the admissibility of the colored photographs had objection been
interposed.
81 Nev. 25, 33 (1965) Bean v. State
the record on appeal. Trial counsel was selected by the accused, and a preliminary hearing
waived. Counsel was apparently satisfied with the jury selected following voir dire (cf.
Hanley v. State, 80 Nev. 248, 391 P.2d 865, and the cases therein cited), for he did not seek to
change the place of trial. The failure to object to certain items of evidence must have been by
choice, for trial counsel was a competent lawyer of experience. Indeed, the matter of his
competency is not questioned directly by Bean's counsel on appeal. We hold, therefore, that
the record before us does not reflect a denial of due process under either the state or federal
constitution.
[Headnote 7]
2. Re Failure to Tell Jury the Consequences of Not Guilty by Reason of Insanity. Relying
upon our opinion in Kuk v. State, 80 Nev. 291, 392 P.2d 630, Bean claims that prejudicial
error resulted from the trial court's refusal to give his proposed instruction dealing with the
consequences of a verdict of not guilty by reason of insanity. The requested instruction
embodied the language of NRS 175.445 and stated the law. In Kuk the instruction was given.
We held that it was not error to give it. In addition we said, We think that the jury should
know the consequences of such a verdict. Bean stresses the quoted language and urges
prejudice to a substantial right.
The proposed instruction should have been given, and error occurred when the court
refused to do so. However, it does not automatically follow that the error is of such
magnitude as to require reversal. NRS 169.110
5
invests this court with a discretion to
evaluate error. Some of the standards of evaluation are discussed in Garner v. State, 78 Nev.
366, 374 P.2d 525, and will not be repeated here.
____________________

5
NRS 169.110 reads, 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.
81 Nev. 25, 34 (1965) Bean v. State
be repeated here. Seldom is a conviction reversed for the failure to give an instruction, the
substance of which is made known to the jury in other ways. Had the instruction been given,
the jury would have been advised that Bean, if adjudged insane, would be confined in the
Nevada State Hospital until regularly discharged in accordance with law. Defense counsel's
jury summation, in substance, supplied the same information. Indeed, the central thought of
his argument was that Bean should be placed in a mental institution. Among other statements
he said, Ladies and gentlemen, Tom Bean needs help. He is, himself, a sick boy, but we need
help more than he does, and the only way we are going to be able to help ourselves is by
placing Tom in an institution where he can be studied and examined, and restudied and
reexamined until perhaps the day will come that we can anticipate in little kids that they may
someday become murderers and prevent it before it happens and not put them away after it
happens.
If you, by your verdict, kill Tom Bean, we haven't learned anything, and we have spent a
lot of money, and we are not going to bring back Sonja McCaskie.
But, if by your verdict you declare him to be insane, then we at least are in a position
where we can study him and can learn from him and maybe save a lot of other Sonja
McCaskies.
Counsel's jury summation minimizes the error to a point where we cannot find that it
resulted in a miscarriage of justice or to have prejudiced the defendant in respect to a
substantial right. It was harmless.
[Headnotes 8, 9]
3. Item of Evidence. Over the objection of irrelevancy, the trial court permitted the state to
introduce in evidence a rifle, pistol and holster, and some cartridges owned by Bean and
found in his car. None was relevant to an issue in the case, and the objection was good. The
victim was killed by strangulation. A garrote which Bean had fashioned was employed to
accomplish death. He also used a butcher knife to stab and carve the victim's body. The
charge was murder by strangling and stabbing. The words of Justice Traynor in People v.
Riser, 47 Cal.2d 566 305 P.2d 1, apply here.
81 Nev. 25, 35 (1965) Bean v. State
People v. Riser, 47 Cal.2d 566 305 P.2d 1, apply here. He wrote When the prosecution
relies, however, on a specific type of weapon, it is error to admit evidence that other weapons
were found in his possession, for such evidence tends to show not that he committed the
crime, but only that he is the sort of person who carries deadly weapons. Accord: People V.
Zachowitz, 254 N.Y. 192, 172 N.E. 466. However, it is inconceivable that the erroneous
reception of the mentioned items had any bearing upon the jury's verdict in this case. The
mass of relevant evidence establishing guilt deadens the effect of these unrelated itemsand,
as to the rifle, testimony had already been received through Bean's confession. The error was
harmless.
[Headnote 10]
4. The Prosecutor's Remarks About Parole and Clemency. In his closing argument to the
jury the prosecutor referred to parole and clemency. The reference is assigned as error. His
statement was, The instruction that you can find him guilty of murder in the first degree and
sentence him to life, with or without possibility of parole, means just that, simply that parole
means parole. It doesn't mean and it doesn't include other clemency which may be afforded.
Nevada law requires that the jury, in a murder case, designate by its verdict the degree of
murder, and fix the penalty. NRS 200.030. Appropriate forms of verdict are given the jury to
enable it to carry out the statutory mandate. The prosecutor's comment was merely a reference
to one of the forms of verdict which the jury, by law, was obliged to consider. The comment
was not inaccurate. It was not misleading, nor did it enlarge upon the matter of parole, the
requirements for eligibility, how the scheme works, etc. Accordingly, we find no impropriety
in a mere reference to parole and clemency in a capital case. We are aware that remarks about
that subject may get out of hand and sometimes result in prejudice. This did not occur here.
The problem is discussed in the following authorities: Shoemaker v. State, 228 Md. 462, 180
A.2d 682; Sullivan v. State, 47 Ariz. 224, 55 P.2d 312; People V. Linden, 52 Cal.2d 1, 33S
P.2d 397 {result change by Cal.
81 Nev. 25, 36 (1965) Bean v. State
338 P.2d 397 (result change by Cal. Penal Code); McLendon v. State, 205 Ga. 55, 52 S.E.2d
294; comment 15 Stanford L.Rev. 349. Of related interest see Annot., 35 A.L.R.2d 769,
entitled, Procedure to be followed where jury requests information as to possibility of
pardon or parole from sentence imposed; State v. White, 27 N.J. 158, 142 A.2d 65; People
v. Morse, 36 Cal.Reptr. 201, 388 P.2d 33.
[Headnote 11]
5. The remaining assignments of error may be disposed of summarily. (a) We are asked to
repudiate the M'Naghten test of insanity and substitute another. Though aware that the
standard is the subject of an extensive assault by medical authority, we are not yet persuaded
that either medical science or the law has fashioned a preferable guide for trial purposes.
Hence, we adhere to the doctrine originally announced in State v. Lewis, 20 Nev. 333, 22 P.
241, reaffirmed in Sollars v. State, 73 Nev. 248, 316 P.2d 917, and recently reiterated in Kuk
v. State, 80 Nev. 291, 392 P.2d 630. See also People v. Quicke, 37 Cal.Rptr. 617, 390 P.2d
393 (1964), expressing a similar view by the California court.
[Headnotes 12-14]
(b) During summation the prosecutor made certain I believe statements. No objection
was interposed. Though it is preferable to argue objectively rather than subjectively, the
oversight was without significance in the context of this case. Objection must be made if this
type of argument is to merit serious consideration on review. The same is true of the
prosecutor's statement, There is only one person in the courtroom today that can tell us that
is so. No objection was made. If the comment is considered as an indirect reference to
Bean's failure to testify, it was within permissible limits. State v. Clarke, 48 Nev. 134, 228 P.
582; State v. Gambetta, 66 Nev. 317, 208 P.2d 1059.
[Headnote 15]
(c) Finally, it is contended that reversible error occurred because the jurors were not kept
together, in charge of a proper officer, for the duration of the trial.
81 Nev. 25, 37 (1965) Bean v. State
NRS 175.320.
6
The contention has no merit. Neither side requested that the jurors be kept
together, rather than allowed to separate during recesses, nor does the record reflect any
support for the claim that the verdict may have been influenced because of their separation
during recesses. Absent a request pursuant to NRS 175.320, or some affirmative showing of
prejudice, this court cannot interfere. Cf. Sollars v. State, 73 Nev. 343, 319 P.2d 139, Annot.,
21 A.L.R.2d 1088.
Appellant's counsel was appointed to prosecute this appeal. We commend him for his
service and for his manner of presenting the cause to us. We direct the lower court to give
him the certificate specified in subsection 3 of NRS 7.260, to enable him to receive
compensation for his services on appeal.
Finding no prejudicial error, the judgment and sentence below is affirmed.
____________________

6
NRS 175.320 invests the trial court with discretion. It reads, The jurors sworn to try a criminal action may,
at any time before the submission of the case to the jury, in the discretion of the court, be permitted to separate
or be kept in charge of a proper officer. The officer must be sworn to keep the jurors together until the next
meeting of the court, to suffer no person to speak to them or communicate with them, nor to do so himself, on
any subject connected with the trial, and to return them into court at the next meeting thereof.
____________
81 Nev. 38, 38 (1965) Gottlieb v. Close
JAMES GOTTLIEB, MAJOR A. RIDDLE, ROBERT RICE and HOWARD ENGEL,
APPELLANTS, v. M. D. CLOSE, Respondent.
No. 4797
January 22, 1965 398 P.2d 248
Appeal from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Action by purchasers for fraud in breach of land sale contract, wherein defendant
counterclaimed for rescission. The trial court rendered judgment for defendant and plaintiffs
appealed. The Supreme Court, McNamee, C. J., held that where sale contract described the
land as consisting of approximately 114 acres of land in particular quarter-section, further
described in sketch attached until such time as a survey may be perfected to better describe
the property, and embodied escrow instructions calling for a perfected description by a
registered civil engineer, and the sketch was not claimed to be accurate and numerals marking
frontage were followed by plus-minus signs, sale in gross was intended and there was no
fraud or breach of contract because one frontage was 150 feet less than the 570 feet shown on
the sketch.
Affirmed as modified.
Jones, Wiener & Jones, of Las Vegas, for Appellants.
Edwin J. Dotson and Mel Close, Jr., of Las Vegas, for Respondent.
1. Vendor and Purchaser.
Where sale contract described land as consisting of approximately 114 acres of land in particular
quarter-section, further described in sketch attached until such time as a survey may be perfected to better
describe the property, and embodied escrow instructions calling for a perfected description by a registered
civil engineer, and the sketch was not claimed to be accurate and numerals marking frontage were followed
by plus-minus signs, sale in gross was intended and, there was no fraud or breach of contract because one
frontage was 150 feet less than the 570 feet shown on the sketch.
Purchasers' testimony that they would not have agreed to sale if particular frontage was 150 feet less than
570 feet shown on sketch was of no significance if as matter of law, purchasers agreed
to buy property designated by lines on sketch which would be accurately described
after a survey thereof.
on sketch was of no significance if as matter of law, purchasers agreed to buy property designated by lines
on sketch which would be accurately described after a survey thereof.
3. Trial.
Any right of defendant vendor to introduce evidence in support of his counterclaim for rescinding sale
contract was waived when vendor moved for directed verdict in purchasers' action for fraud and breach of
contract, without reserving such right, and vendor would be precluded from urging rescission after court
properly determined that there had been no breach.
OPINION
Respondent entered into a contract wherein he agreed to sell and convey to appellants
certain real property near Las Vegas, Nevada, for the sum of $750,000. The deed to the
property was delivered. The purchase price was paid. The land in the agreement was
described as: That certain property owned by M. D. Close located in the Southeast Quarter
of Section 20, Township 21 South, Range 61 East, M.D.B. & M., consisting of approximately
114 acres of land, said land being further described by a sketch attached hereto marked
Exhibit A and made a part hereof and designating by red lines the land intended to be sold
until such time as a survey may be perfected to better describe the property.
The said sketch of the property being sold showed the Golf Range part thereof had a
frontage on Highway 91 of 570 feet. That actual frontage however turned out to be only 420
feet. The other frontage involved in the sale was 775 feet.
Upon discovery that they were receiving 150 frontage feet on the highway less than the
570 feet shown on said sketch, appellants brought an action for $75,000 against respondent
consisting of three claims alleging breach of contract, fraud, and deceit.
The amended answer of the respondent contained a counterclaim wherein the respondent
asked for a rescission of the contract of sale.
After appellants had presented their evidence to the court and jury, respondent moved for
a directed verdict on the ground that the evidence was insufficient to sustain a verdict for
the appellants, which motion was granted by the court.
court and jury, respondent moved for a directed verdict on the ground that the evidence was
insufficient to sustain a verdict for the appellants, which motion was granted by the court.
Judgment was entered in favor of the respondent pursuant to the jury's verdict finding in favor
of the defendant (respondent) and against the plaintiffs (appellants). Thereafter appellants
moved to amend the judgment on the directed verdict to recite that no evidence had been
offered in support of respondent's counterclaim for rescission, and that it be dismissed with
prejudice. This motion was denied. Appeal is from the judgment on the directed verdict and
from the order denying the motion to amend the judgment.
NRCP 50 (a) as it existed when the motion for directed verdict was made provided in part:
A motion for a directed verdict may be made at the close of the evidence offered by an
opponent * * *. It further provides that if the evidence is sufficient to sustain a verdict for
the opponent (in this case the appellants), the motion shall not be granted.
The main question to decide is whether there is any substantial evidence in the record
which would have sustained a verdict for the appellants.
With respect to the charges of fraud and deceit, there is no evidence to show that the
respondent knew at any time before the execution of the contract of sale that the Golf
Range part thereof had 150 feet less frontage than that shown on the sketch. The evidence is
uncontradicted that the value of the entire property was as much or more than the sales price.
[Headnote 1]
This evidence together with our conclusion that respondent did not breach his contract of
sale would preclude the submission of the issues of fraud and deceit to the jury.
[Headnote 2]
Although both appellants, Gottlieb and Riddle, testified that they would not have agreed to
the sale if the Golf Range frontage was 150 feet less than the 570 feet shown on the sketch,
such testimony would have no significance, if as a matter of law they agreed to buy that
property designated by red lines on the sketch which would be accurately described after
a survey thereof.
that property designated by red lines on the sketch which would be accurately described after
a survey thereof.
The so-called sketch does not purport to be anything but a sketch. The numerals marking
most of the frontage are followed by a plus-minus sign. Even the entire acreage sold is
designated as 114 acres plus or minus, and its two parts are shown to be 72.80 acres plus or
minus and 41.32 acres plus or minus. Gottlieb testified that it was never discussed whether
the sketch was accurate, and that respondent had never told him the sketch was accurate or
correct. Riddle testified that there was no relation between the price which they agreed to pay
and any particular number of acres or particular number of feet, except more or less.
The contract of sale describes the land to be sold as that property owned by M. D. Close
located in the Southeast Quarter of Section 20, Township 21 South, Range 61 East, M.D.B.
& M., consisting of approximately 114 acres of land. The land is further described in the
sketch attached until such time as a survey may be perfected to better describe the property.
1
The contract also embodies the terms of the escrow instructions which recite that the grant,
bargain, and sale deed will convey the property which will be described in a perfected
description of the property referred to on the map attached hereto, which description shall
have been prepared by a registered civil engineer * * *. The contract itself indicates that the
map was merely an approximate description of the property sold.
We cannot conceive it possible that in a sale of approximately 114 acres of unimproved
land for the sum of $750,000 that any of the parties intended that the seller should be
bound by the linear measurement shown on the sketch in evidence, when the seller
testified that the sketch was not drawn from any survey and when the contract of sale
provided that it was intended to designate the land sold "until such time as a survey may
be perfected to better describe the property."
____________________

1
Appellants contend that respondent was clearly selling the land indicated by the red line on the sketch, and
that the references to the survey were mainly for the purpose of establishing the necessary legal description to be
included in the deed, as a description in a deed by reference to a red line on a sketch would be entirely
ineffective as a conveyance. Respondent contends, and the court below properly supported this contention, that
the references to a survey clearly indicated that the contract description of the land, as well as the references to
the sketch, were tentative and incomplete, and were necessarily so until a survey could be made; that this was
corroborated by the plus or minus and more or less references, and in effect supports and corroborates the
theory of a sale in gross of approximately 114 acres.
approximately 114 acres of unimproved land for the sum of $750,000 that any of the parties
intended that the seller should be bound by the linear measurement shown on the sketch in
evidence, when the seller testified that the sketch was not drawn from any survey and when
the contract of sale provided that it was intended to designate the land sold until such time as
a survey may be perfected to better describe the property. Furthermore the escrow
instructions contemplated a perfected description prepared by a registered civil engineer. We
agree with that part of the trial court's oral opinion where he stated: The deed that was
conveyed from the seller to the buyers is listed in metes and bounds.
[2]
They have agreed to
pay $5,000.00 an acre for all of the area in the rear, the balance of the purchase price to be
paid for the property constituting the frontage. The Court finds that there is no evidence save
and except figures that are on a map upon which the Court feels that the plaintiffs had no
reason to rely as to the truth or veracity of the measurements that were made on there because
some of them are in plus and minuses. And the best that could be said from the description is
that there may be more or there may be less, that there was about what this indicated there
would be. * * * The Court finds from the language of the contract that the only thing that was
ever intended here was a sale in gross.
3
We conclude that there was no substantial evidence
to support a verdict for appellants, that respondent did not breach his contract, and that the
order directing a verdict for the respondent was proper. Brownell v. Tide Water Associated
Oil Co., 1 Cir., 121 F.2d 239 (1941); cf. Bonamy v. Zenoff, 77 Nev. 250, 362 P.2d 445.
[Headnote 3]
After the verdict for the respondent was received and recorded in open court, the court
asked the attorney for respondent if he had anything further to present.
____________________

2
The lengthy description of the property conveyed by the deed, including the exceptions and reservations
therein, comprising more than 80 typewritten lines, is further evidence that the parties did not intend to be bound
by the description in the sketch after a survey was made.

3
See 55 Am.Jur., Vendor and Purchaser 130, concerning sales in gross.
for respondent if he had anything further to present. He answered, Nothing, your honor. In
view of the fact that respondent did not reserve any right to introduce evidence in support of
his counterclaim at the time he moved for the directed verdict, such right, if any he had, was
waived. Therefore he is precluded anytime in the future from urging a rescission of the
contract of sale, particularly when the court properly had determined that there had been no
breach of contract. The motion to amend the judgment therefore should have been granted.
The judgment is modified by adding thereto the following:
It is hereby ordered, adjudged, and decreed that defendant's counterclaim be, and the
same is hereby dismissed with prejudice.
As so modified the judgment is affirmed. No costs are allowed.
____________
81 Nev. 43, 43 (1965) Dodd v. Hughes
MONTE DEAN DODD, Appellant, v. DR. LOWELL R. HUGHES, Director Of
The Nevada State Hospital, Reno, Nevada, Respondent.
No. 4771
January 29, 1965 398 P.2d 540
Appeal from an order of the Second Judicial District Court, Washoe County; Thomas O.
Craven, Judge.
Habeas corpus application by applicant seeking release from state mental hospital. The
lower court denied the application and ordered applicant's transfer to state prison for
confinement, and applicant appealed. The Supreme Court, Thompson, J., held that denial of
application for release from mental hospital and transfer to state prison for confinement of
18-year-old applicant, who did not exhibit a classified psychosis but was a dangerous
sociopath having homicidal tendencies and who was deemed by one of two testifying
psychiatrists to be mentally ill within intendment of statute, was proper.
Affirmed.
81 Nev. 43, 44 (1965) Dodd v. Hughes
Carl F. Martillaro, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, and C. B. Tapscott, Deputy Attorney General,
Carson City, and William J. Raggio, District Attorney, Washoe County, Reno, for
Respondent.
1. Habeas Corpus.
Though it did not appear that district court had entered order denying habeas corpus relief to applicant
seeking release from mental hospital, Supreme Court treated order committing applicant to state prison as
denial of application so as to assume jurisdiction to decide matter. NRS 34.380, subd. 3, 433.040,
433.310.
2. Mental Health.
In deciding whether person is mentally ill, judicial inquiry is not to be limited so as to exclude totality
of circumstances involved in particular case before the court, and recidivism, repeated acts of violence,
failure to respond to conventional penal and rehabilitative measures, and public safety, are additional and
relevant considerations for the court. NRS 433.010-433.640.
3. Mental Health.
In court hearing to determine whether person shall be committed as mentally ill, assistance of medical
examination and opinion is a necessary concomitant but court alone is invested with power of decision.
NRS 433.200.
4. Mental Health.
Court's power to determine whether person should be committed as mentally ill is to be exercised within
permissible limits of judicial discretion. NRS 433.200.
5. Habeas Corpus.
Denial of habeas corpus application for release from mental hospital and transfer to state prison for
confinement of 18-year-old applicant, who did not exhibit a classified psychosis but was a dangerous
sociopath having homicidal tendencies and who was deemed by one of two testifying psychiatrists to be
mentally ill within intendment of statute, was proper. NRS 433.040, 433.200, 433.310.
OPINION
[Headnote 1]
By a habeas corpus application addressed to the Second Judicial District Court, Dodd
sought his release from the Nevada State Hospital {NRS 433.040).1 He had been
committed to that institution as a mentally ill person by order of the Fourth Judicial
District Court.
81 Nev. 43, 45 (1965) Dodd v. Hughes
from the Nevada State Hospital (NRS 433.040).
1
He had been committed to that institution
as a mentally ill person by order of the Fourth Judicial District Court. At the habeas hearing,
the Superintendent of the Nevada State Hospital gave his opinion that Dodd, though a
sociopath, was not psychotic, and therefore not mentally ill within the meaning of NRS
433.200. He suggested that Dodd be released from his confinement. Another doctor was of a
different view. Though he agreed that Dodd was not psychotic, he believed that a sociopathic
personality may be considered mentally ill as that term is used in the statute. Additionally,
he stressed Dodd's high potential for homicidal activity. At the conclusion of the hearing, the
court directed the superintendent to apply to the board of state prison commissioners for that
board's consent to confine Dodd at the Nevada State Prison. The superintendent did as
directed. The prison commissioners consented, and Dodd was delivered to the Nevada State
Prison for confinement until further order of the court (NRS 433.310).
2
The hearing
convinced the lower court that Dodd was and is mentally ill, a menace to public safety,
and that the hospital facilities are inadequate for his safe confinement.

____________________

1
NRS 433.040 reads: Nothing in this chapter shall limit the right of any person admitted to the hospital
pursuant to this chapter to a writ of habeas corpus upon a proper application made at any time by such person or
a relative or friend on his behalf. The section is a part of the chapter dealing with the Nevada State Hospital.
See also: Overholser v. Boddie, 184 F.2d 240, holding habeas relief available to one committed as insane and
who wishes to prove his sanity and obtain his release; and the Annot., 21 A.L.R.2d 1004.

2
NRS 433.310 provides:
1. Whenever a person legally adjudged to be mentally ill is deemed by the court or the superintendent to be a
menace to public safety, and the court is satisfied that the facilities at the hospital are inadequate to keep such
mentally ill person safely confined, the court may, upon application of the superintendent, commit such person to
the Nevada state prison. The person shall be confined in the Nevada state prison until the further order of the
committing court either transferring him to the hospital or declaring him to be no longer mentally ill.
2. No person shall be ordered committed to the Nevada state prison under the terms of this chapter unless the
consent of the board of state prison commissioners has been first obtained.
3. All the provisions of law, so far as the same are applicable, relating to the confinement of mentally ill
persons in the hospital shall apply to confinement of mentally ill persons in the Nevada state prison.
81 Nev. 43, 46 (1965) Dodd v. Hughes
The hearing convinced the lower court that Dodd was and is mentally ill, a menace to public
safety, and that the hospital facilities are inadequate for his safe confinement. Dodd has
appealed from the order committing him to the state prison. He has also appealed from the
minute order denying the granting of a writ of habeas corpus. The record does not show that
such a minute order was ever made. However, as the state has not challenged the appeal on
that ground, we think it proper to treat the order, committing Dodd to the state prison, as a
denial of his application for habeas relief, and will therefore assume jurisdiction to decide the
matter. NRS 34.380(3).
[Headnotes 2-4]
The legislature did not define mentally ill when it passed the law governing the Nevada
State Hospital (NRS 433.010-433.640). Its failure to do so supplies the basis for Dodd's
appeal. It is his position that a person must exhibit one of the psychotic reactions as classified
by the American Psychiatric Association before he may be considered mentally ill. Absent a
classified psychosis, one may not be committed and confined. A sociopath (defined in the
testimony as a disorder of personality affecting the ethical and moral senses) like Dodd, (and
all the evidence is in accord that Dodd is, indeed, a sociopath), does not fall within any of the
classified psychotic reactions and, therefore, may not be institutionalized. So it is that we are
urged to fashion a definition for the words mentally ill and thereby fill the void in the
statutory hospital law. It is suggested that we confine mental illness to the psychotic reactions
as classified by the American Psychiatric Association. We are wholly unable to follow that
suggestion. The record before us shows that the psychiatrists who testified do not agree on the
statutory meaning of mentally ill. Further, the record reflects that psychiatrists in general
are at war over the propriety of the classifications of psychosis as specified by the American
Psychiatric Association. We seriously doubt that the legislature ever intended medical
classifications to be the sole guide for judicial commitment. The judicial inquiry is not to be
limited so as to exclude the totality of circumstances involved in the particular case
before the court.
81 Nev. 43, 47 (1965) Dodd v. Hughes
limited so as to exclude the totality of circumstances involved in the particular case before the
court. Recidivism, repeated acts of violence, the failure to respond to conventional penal and
rehabilitative measures, and public safety, are additional and relevant considerations for the
court in deciding whether a person is mentally ill. The assistance of medical examination and
opinion is a necessary concomitant of the court hearing, but the court alone is invested with
the power of decision. NRS 433.200. That power is to be exercised within the permissible
limits of judicial discretion.
[Headnote 5]
Here the record demonstrates a combination of things which should, and did,
unquestionably, influence the lower court to enter the order it did. Dodd, an 18-year-old, was
shown, by testing, to have the intelligence quotient of a high grade moron. All agree that he is
a sociopath almost devoid of moral sense. He has been proven, at least to date, wholly
unresponsive to either penal or rehabilitative measures,
3
nor does he give promise of
response to available probation services or psychiatric treatment. He possesses homicidal
tendencies, and is dangerous. Finally, one of the testifying psychiatrists stated that Dodd is
mentally ill within the intendment of the statute. In these circumstances the lower court did
not abuse its discretion in denying habeas relief and ordering that Dodd be transferred to the
Nevada State Prison for confinement.
Affirmed.
Badt, J., concurs.
McNamee, C. J., concurs in the result.
____________________

3
He experienced trouble with the police when eight years old. He was placed in the Elko Boys School from
1960-1962, while there he fought frequently. He escaped. While loose he hit an elderly man on the head with a
crowbar, covered him with kerosene or gas, and set him on fire. He was then sent to Preston, California, a prison
for hard-core youth criminals. In 1963 he was committed to the Nevada State Hospital, from which he eloped
on four separate occasions. Other significant signs are revealed in the record, but need not be set out here.
____________
81 Nev. 48, 48 (1965) Cox v. State
JOHN FREDERICK COX, Appellant, v. THE
No. 4805
February 1, 1965 398 P.2d 538
Appeal from the Eighth Judicial District Court, Clark County; Jon R. Collins, Judge.
The lower court denied a petition for a writ of habeas corpus and petitioner appealed. The
Supreme Court, McNamee, C. J., held that the statute permitting trier of fact to infer guilt of
receiving stolen property by reason of defendant's possession of stolen property within six
months of date of wrongful taking did not shift burden of proof, deprived defendant of no
constitutional guaranties, and was constitutional.
Affirmed.
Dorsey & Harrington, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Edward G. Marshall, District Attorney, and Paul C.
Parraguirre, Deputy District Attorney, Clark County, for Respondent.
1. Receiving Stolen Goods.
Statute permitting trier of fact to infer guilt of receiving stolen goods by reason of defendant's possession
of stolen property within six months of date of wrongful taking deprives defendant of no constitutional
guaranties but merely enacts a rule of evidence, does not shift burden of proof, is not arbitrary and is
constitutional; State v. Pansey, 61 Nev. 348, 130 P.2d 264 overruled. NRS 205.275, 205.280.
2. Criminal Law.
By pleading guilty to information charging receiving stolen goods which recited that defendant possessed
property wrongfully taken from another knowing it to be stolen, defendant waived any right to present
reasonable explanation of his possession to jury. NRS 205.275.
OPINION
A complaint was filed in the Justice's Court of Las Vegas Township charging defendant
with the crime of receiving stolen property. Defendant was held to answer by the justice of
the peace and bound over to the district court where an information was filed charging
him with a violation of NRS 205.2S0, to wit, receiving stolen property.
81 Nev. 48, 49 (1965) Cox v. State
by the justice of the peace and bound over to the district court where an information was filed
charging him with a violation of NRS 205.280, to wit, receiving stolen property. Defendant
appeared in court with Robert Santa Cruz, his attorney, and entered a plea of guilty to the
charge contained in the information. He was sentenced to not less than one year and not more
than one year in the county jail.
After his commitment defendant filed a petition in the lower court for a writ of habeas
corpus. Appeal is taken from the order denying the writ.
NRS 205.280 provides as follows:
Receiving stolen goods: When a gross misdemeanor.
1. Every person who receives or buys property that has been wrongfully taken from any
other person in any manner, whether or not the act of wrongful taking occurred outside the
State of Nevada, and whether or not the property was bought or received from a person other
than the person wrongfully taking such property, shall be guilty of a gross misdemeanor.
2. If such person is shown to have had possession of such property within 6 months from
the date of the wrongful taking, such possession shall constitute sufficient evidence to
authorize conviction, unless:
(a) The property was a gift; or
(b) The amount paid for the property represented its fair and reasonable value;
(c) The person buying such property knew or made inquiries sufficient to satisfy a
reasonable man that the seller was in a regular and established business dealing in property of
the description of the property purchased; or
(d) The person receiving or buying such property has simultaneously with the receipt or
sale reported the transaction to the appropriate local police authorities.
This statute permits the trier of the fact to infer guilt by reason of the defendant's
possession of stolen property within six months of the date of the wrongful taking.
Under the preceding statute, NRS 205.275, one who receives stolen goods is guilty of a
felony where he knows that the goods had been stolen and where the value of the goods
amounts to $100.
81 Nev. 48, 50 (1965) Cox v. State
knows that the goods had been stolen and where the value of the goods amounts to $100.
[Headnote 1]
Appellant contends that NRS 205.280 is unconstitutional in that it does not provide for
criminal knowledge, intent, or negligence.
In State v. Lisena, 129 N.J.L. 569, 30 A.2d 593, it was argued that the statute concerning
the receiving of stolen goods was unconstitutional, because (a) it deprives the defendant of
the right to interpose any defense other than gift or purchase; (b) it is arbitrary and
unreasonable and it deprives the defendant of due process; (c) it creates a presumption of
guilt and thereby shifts the burden upon the defendant to prove his innocence; (d) it takes
from the court its prerogative to pass upon the legality of evidence wherein it provides that
possession of stolen property is prima facie evidence of guilty knowledge; and (e) it invades
the function of the jury to determine the fact of possession.
In that case the court said: We do not think that this statute eliminates the necessity of
proof of guilty knowledge. Its purpose is to dispense with affirmative proof of such
knowledge and to substitute proof of recent possession from which guilty knowledge may be
inferred and this is of course a fact issue for the jury * * *. In State v. Giordano, 121 N.J.L.
469, at page 471, 3 A.2d 290, at page 291, this court said, The statute under review, if
regarded as doing no more than indicating the manner in which a presumption of guilt from
proof of possession of stolen property within one year from the date of theft, may be rebutted,
deprives the citizen of no constitutional guaranties but merely enacts a rule of evidence well
within the general power of government.' The statute does not shift the burden of proof nor
deprive the accused of due process nor is it arbitrary and unreasonable. State v. Giordano,
supra; Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632; Luria v. United
States, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101. In the Casey case Mr. Justice Holmes speaking
for the Supreme Court said [276 U.S. 413, 48 S.Ct. 374, 72 L.Ed.
81 Nev. 48, 51 (1965) Cox v. State
72 L.Ed. 632], The statute here talks of prima facie evidence, but it means only that the
burden shall be upon the party found in possession to explain and justify it when accused of
the crime that the statute creates. 4 Wigmore, Evidence, 2494. It is consistent with all the
constitutional protections of accused men to throw on them the burden of proving facts
peculiarly within their knowledge and hidden from discovery by the Government. 4
Wigmore, Evidence, 2486.'
The later case of State v. Laster, 69 N.J.Super. 504, 174 A.2d 486, considered also the
validity of the amendment to the New Jersey statute which eliminates the necessity of
showing guilty knowledge by direct proof, and in its place substitutes proof of possession
from which guilty knowledge may be inferred. The opinion states:
The statute has been interpreted as creating a permissive presumption of guilty
knowledge from the mere possession of stolen goods within the specified period. (citations)
The statute does not shift the burden of proof, nor deprive a defendant of due process, but is
merely an evidentiary rule whereby the accused must go forward with an explanation to rebut
the permissive presumption.
* * * * *
The State need go no further to sustain a conviction than to show that the property was
stolen, defendant had it in his possession within one year of its theft, and he had offered no
persuasive explanation within the statute. The Legislature declared that this was sufficient to
authorize conviction; it did not say that the jury must convict. Thus, the evidentiary rule
established by the Legislature could not take any substantive defense away from an accused.
He may still assert any defense he desires to the crime charged, and it is a question for the
jury on the entire case, weighing the statutory inference of guilty knowledge and defendant's
explanation, to determine whether the State has sustained its burden of proof. This is the
sense in which we understand what the court said in State v. Lisena, above, when, dealing
with defendant's contention that the statute deprived him of his right to interpose any
defense other than gift or purchase, it observed that Lisena 'was not deprived of the right
to explain his possession.
81 Nev. 48, 52 (1965) Cox v. State
him of his right to interpose any defense other than gift or purchase, it observed that Lisena
was not deprived of the right to explain his possession. He chose not to explain.'
* * * * *
We conclude that the statute in no way prohibits an accused from asserting any defense
he chooses. However, the State retains the benefit of the inference to be drawn from his
possession of the stolen goods within one year of the stealing, and the jury should be
instructed that such possession is sufficient for them to infer guilty knowledge unless the
accused offers a reasonable explanation. The determination as to what is a reasonable
explanation is for the jury. The statute does no more than assert that any one of the stated five
explanations, if persuasively established, is reasonable.
[Headnote 2]
By his plea of guilty to the information which recites that the appellant did have in his
possession certain specified personal property that had wrongfully been taken from another
knowing the same to have been stolen, appellant waived any right which he may have had,
to present a reasonable explanation of his possession to a jury.
We approve of the reasoning of the New Jersey courts and conclude from them and the
authorities upon which they are based that NRS 205.280 is constitutional. Therefore the lower
court properly denied appellant any relief on his petition for a writ of habeas corpus.
Anything said in the opinion On Petition for Rehearing in State v. Pansey, 61 Nev. 348,
130 P.2d 264, contrary to our views herein is expressly overruled.
It is unnecessary to consider the other arguments made by respondent to sustain the action
of the district court.
Affirmed.
____________
81 Nev. 53, 53 (1965) Manzonie v. State ex rel. DeRicco
JOHN MANZONIE, ADELLIE MANZONIE, and GAILIN MANZONIE, Appellants,
v. STATE OF NEVADA Ex Rel. ELMO DeRICCO, State Engineer,
and VERN V. CYR, Respondents.
No. 4836
February 2, 1965 398 P.2d 694
Appeal from the Fifth Judicial District Court, Nye County; Peter Breen, Judge.
Action for injunction. The lower court entered an order denying preliminary injunction and
dismissing the complaint, and plaintiff appealed. On a motion to dismiss the appeal, the
Supreme Court held that it was precluded from considering propriety of dismissal of
complaint where notice of appeal complained only of denial of preliminary injunction which
was rendered moot by dismissal of complaint.
On motion to dismiss. Motion granted.
John Manzonie, Thomas J. O'Donnell, and Michael L. Hines, of Las Vegas, for
Appellants.
Gray, Horton and Hill, of Ely, for Respondent Vern V. Cyr.
Harvey Dickerson, Attorney General, William Paul, Deputy Attorney General, of Carson
City, for Respondent State of Nevada.
1. Appeal and Error.
Supreme Court was precluded from considering propriety of dismissal of complaint where notice of
appeal complained only of denial of preliminary injunction. NRCP 73(b).
Question of propriety of denial of preliminary injunction became moot upon dismissal of complaint
propriety of which was not challenged by notice of appeal. NRCP 72(b) (2), 73(b).
OPINION
Per Curiam:
Appellants filed an action in the court below for an injunction to enjoin the State Engineer
from interference with certain water rights owned by appellants.
Respondent Vern V. Cyr was permitted to intervene and did intervene by filing an answer and
counterclaim to the complaint. A motion for preliminary injunction filed by appellants came
on for hearing before the lower court on July 29, 1964, at which time the court made the
following order:
Plaintiffs above named having heretofore filed herein a Complaint for Injunction and
therein praying for a Preliminary Injunction, and the hearing of said Complaint having come
on regularly on this, the 29th day of July, 1964, pursuant to a Stipulation entered into by,
between and among the above named parties acting by and through their respective counsel,
and the Plaintiffs having presented their case, and thereafter Intervening Defendant, VERN V.
CYR, acting by and through his counsel, having moved the Court to dismiss the Complaint
for Injunction on the grounds that said Complaint failed to state a claim upon which relief
could be granted, and counsel for said Intervening Defendant having argued the matter to the
Court in support of said Motion to Dismiss and thereafter the matter having been submitted
and the Court having considered the same, upon good cause appearing therefor;
IT IS HEREBY ORDERED that said Complaint for Injunction be, and the same is hereby
dismissed.
A notice of appeal dated August 18, 1964 was filed August 27, 1964 which states:
NOTICE IS HEREBY GIVEN that the plaintiffs hereby appeal to the Supreme Court of
the State of Nevada, from the ruling on Motion for Preliminary Injunction entered and filed in
the above entitled court on the 29th day of July, 1964, wherein the Motion for Preliminary
Injunction of plaintiffs was denied.
This appeal is taken both on questions of law and fact.
Said notice of appeal makes no reference to that part of the judgment which dismisses the
complaint for injunction.
Respondent Vern V. Cyr has filed a motion herein to dismiss the appeal contending (1)
that the district court's order dismissing appellants' complaint is a final adjudication from
which it is now too late to appeal {2) appellants' notice of appeal does not appeal from the
district court's order dismissing the complaint {3) the dismissal of the complaint vitiated
any basis for the issuance of an injunction, and when the order dismissing the complaint
became final upon expiration of the appeal period the question of the propriety of an
injunction became moot.
(2) appellants' notice of appeal does not appeal from the district court's order dismissing the
complaint (3) the dismissal of the complaint vitiated any basis for the issuance of an
injunction, and when the order dismissing the complaint became final upon expiration of the
appeal period the question of the propriety of an injunction became moot.
If we assume that the order constitutes a denial of the motion for preliminary injunction
and also the granting of the motion to dismiss the complaint, appellants by their notice of
appeal have not appealed from that part of the order which dismisses the amended complaint.
NRCP 73(b) provides: The notice of appeal shall specify the parties taking the appeal; shall
designate the judgment or part thereof appealed from; and shall name the court to which the
appeal is taken.
[Headnote 1]
Under this rule we said in Reno Newspapers, Inc. v. Bibb, 76 Nev. 332, 353 P.2d 458:
Only those parts of the judgment which are included in the notice of appeal shall be
considered by the appellate court. We therefore are precluded from considering the validity
of the order dismissing the complaint.
[Headnote 2]
Under NRCP 72(b) (2) an order refusing to grant a preliminary injunction is appealable but
in view of the dismissal of the complaint, the existence of which is necessary to permit the
granting of an injunction, the question of the propriety of an injunction became moot.
The motion to dismiss the appeal is granted. Appeal dismissed.
____________
81 Nev. 56, 56 (1965) Thomsen v. Glenn
JERRY THOMSEN, Appellant, v. LEE GLENN, Respondent.
No. 4793
February 3, 1965 398 P.2d 710
Appeal from judgment of the Eighth Judicial District Court, Clark County; David Zenoff,
Judge.
Action by purchaser for specific performance of contract for purchase and sale of land.
The lower court ordered judgment for purchaser and vendor appealed. The Supreme Court,
Thompson, J., held that there was acceptance even though escrow was opened in title
company other than the one specified in counteroffer, where counterofferor had notice of
change and did not object, and that false recital of receipt of money was conclusively
presumed true where such payment did not constitute consideration but was for liquidated
damages.
Judgment affirmed.
Coulthard & Smith, of Las Vegas, for Appellant.
Singleton and De Lanoy, and Rex A. Jemison, of Las Vegas, for Respondent.
On appeal, conflicts in evidence must be resolved in favor of prevailing party below.
Counteroffer for purchase and sale of land was accepted when purchaser opened escrow and vendor was
so notified by title company, notwithstanding fact that title company was not escrowee specified in
counteroffer, where it did not appear that identity of escrowee was significant to either party.
Vendor could not escape contract for purchase and sale of land and frustrate consummation by belated
insistence upon strict compliance with insignificant detail of offer.
False recital that vendor received $500 at time of execution of contract for purchase and sale of land did
not defeat its operation.
Mutual promises to buy and sell constituted consideration.
Recital in contract for purchase and sale of land that vendor received $500 at time of execution was
conclusively presumed to be true where recitation was for liquidated damages, and consideration was
mutual promises. NRS 52.060, subd. 2.
OPINION
This is an action for specific performance of a written agreement to sell land, brought by
the buyer Glenn against the seller Thomsen. Glenn won below, and Thomsen appeals.
[Headnote 1]
Thomsen, a resident of New York, owned unimproved land in Clark County which he
wished to sell. He orally listed it for sale with Thurmond, a broker who, in turn, contacted
Glenn. Using a printed form furnished with compliments of Lawyers Title of Las Vegas,
Thurmond and Glenn together prepared an offer to purchase Thomsen's property for the total
price of $26,000, payable $6,000 down and $5,000 annually thereafter, plus interest at 6
percent. An escrow was to be opened with Lawyers Title of Las Vegas and was to close
within 60 days. In addition, the broker, at Glenn's request, wrote on the face of the printed
form, buyer requests 5 acre release clauses. The printed form also acknowledged receipt of
$500, which was to be credited against the $6,000 down payment, if made. Glenn, as the
purchaser, and Thurmond, as the broker, each signed the offer to purchase on May 5, 1962.
The broker delivered this offer to Thomsen. After striking out the request for a 5-acre release
clause, Thomsen signed the document. On May 7, 1962, Glenn opened an escrow with
Pioneer Title Insurance Company. On May 8, 1962, Pioneer Title mailed escrow instructions
to Thomsen. On May 25, 1962, the title company wrote Thomsen, requesting that he execute
and return a copy of the escrow instructions. On June 6, 1962, the company again wrote
Thomsen, May we please hear from you at your earliest convenience with regard to the
above escrow."
with regard to the above escrow. Thomsen failed to respond to any of the communications
from the title company. On June 15, 1962, Glenn deposited the $6,000 down payment with
the title company. Thomsen refused to consummate the deal, and this litigation ensued.
1

The single contention advanced here is that agreement was never made. The seller's
argument is this: He signed the document only after he had struck the buyer's request for a
release clause. Thus, his signing did not create a contract, for he did not accept that which had
been proposed.
2
Rather, his signature thereon, under such circumstances, constituted a
counter offer which was never accepted by the purchasernot accepted, because Glenn, the
purchaser, chose to open an escrow with Pioneer Title rather than with Lawyers Title as
specified in the counter offer. By opening an escrow with a different company, the buyer's
purported acceptance was not unqualified and, in legal effect, was not acceptance at all. Cf.
McCone v. Eccles, 42 Nev. 451, 181 P. 134.
[Headnotes 2, 3]
We are wholly unpersuaded by the seller's contention. There is nothing in this record to
suggest that the identity of the escrow was significant to either party. It is, of course, true that
Lawyers Title was specified in the agreement. Undoubtedly this came about because the
agreement was on a printed form prepared by Lawyers Title and furnished with its
compliments to real estate brokers for use in their daily business. The seller, in giving his
testimony at the trial, offered nothing to show that the identity of the escrow was ever
intended to be an important item of the contract. Manifestly, it was not.
____________________

1
We have stated the facts which support the judgment and have not mentioned possible conflicts or
explanations which, on appeal, must be resolved in favor of the prevailing party below.

2
We do not decide whether a contract came into existence when the seller signed the document after striking
the buyer's request for a release clause. It is, of course, arguable that the request for a release clause was just
thata request, and not a condition; that the buyer offered to be bound whether his request was honored or
rejected, and became bound, as did the seller, when the seller signed the document. Cf. Pravorne v. McLeod, 79
Nev. 341, 383 P.2d 855, holding, inter alia, that an acceptance which requests a release clause does not
invalidate the acceptance. See also 1, Williston on Contracts 67A, at 193.
(Cf. Finnell v. Bromberg, 79 Nev. 211, 228, 381 P.2d 221, 229, where we found it
permissible on the facts there present for an optionee to tender the purchase price through
escrow rather than to the optioner directly, as specified in the option contract.) Indeed, when
the buyer opened an escrow with a different company, and the seller was notified, he (the
seller) did not object. Presumably the seller would have done so had Pioneer Title not been
acceptable to him. Bodem v. Friedman, 90 Cal.App.2d 225, 202 P.2d 632. We agree with the
lower court that Thomsen's counter offer was accepted by Glenn when the escrow was
opened and Thomsen was notified of that fact by the title company. The down payment was
thereafter made within the time specified in the agreement. Thomsen may not now escape his
contract and frustrate consummation by a belated insistence upon strict compliance with an
insignificant detail.
[Headnotes 4-6]
The seller has suggested one further reason for reversal which, in our opinion, is equally
unsound. The seller acknowledged receipt of $500 when he signed the agreement. In fact, the
$500 was not paid at that time. The false recital does not deprive the agreement of its legal
operation because payment of the $500 was not essential to the creation of a contract,
(Restatement, Contracts 243), nor was if the consideration for the contract before us. The
consideration is found in the mutual promises to buy and sell. The $500 provision was for
liquidated damages, should the buyer fail to perform. He did perform. In any event, the recital
of the receipt of $500 is conclusively presumed to be true (NRS 52.060 (2))
3
, and the seller
may not be heard to deny it.
Affirmed.
____________________

3
NRS 52.060 reads: The following presumptions, and no others, are deemed conclusive: (1) * * *.
(2) The truth of the fact recited, from the recital in a written instrument between the parties thereto, or their
successors in interest by a subsequent title, but this rule does not apply to the recital of a consideration.
____________
81 Nev. 60, 60 (1965) Hobson v. Olin
JOSEPH S. HOBSON and THELMA L. HOBSON, His
Wife, Appellants, v. ELIZABETH M. OLIN, Respondent.
No. 4791
February 4, 1965 398 P.2d 708
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Action for commission on sale of ranch by broker. The lower court entered judgment for
broker against both owner and his wife, and they appealed. The Supreme Court, McNamee,
C. J., held that findings that broker's salesman was procuring cause of sale, that owner was
guilty of bad faith in dealing directly with subsequent purchaser even after he had been
notified that salesman had arranged sale on agreed terms, and that owner completed sale after
owner knew that purchaser was same prospective purchaser obtained by salesman were
supported by sufficient evidence; and further held there was no basis for judgment against
wife where no evidence connected her with dealings between her husband and purchaser.
Affirmed in part and reversed in part.
Ralph M. Tucker, of Reno, and Philip M. Marfisi, of Elko, for Appellants.
Orville P. Wilson, of Elko, for Respondent.
1. Brokers.
In broker's action for commission, findings that broker's salesman was procuring cause of sale, that owner
was guilty of bad faith in dealing directly with purchases even after he had been notified that salesman had
arranged sale on agreed terms, and that owner completed sale after owner knew that purchaser was same
prospective purchaser obtained by salesman were supported by sufficient evidence.
2. Evidence.
Court is not bound to accept uncontradicted testimony.
3. Brokers.
Where substantially all uncontradicted evidence consisted of testimony given by vendor-owner, who
court found had acted in bad faith toward broker's agent who was found to have been procuring cause of
sale of ranch, and by subsequent purchaser of ranch, failure to recognize as true uncontradicted evidence as
to negotiations between vendor and purchaser was not error.
81 Nev. 60, 61 (1965) Hobson v. Olin
4. Brokers.
No basis existed for judgment for broker's commission against wife of owner-vendor of ranch, who was
found guilty of bad faith in dealing directly with purchaser after notification that broker's salesman had
arranged sale on agreed terms, where wife, who was not party to ranch sales agreement, was not connected
by any evidence with dealings between husband and purchaser.
OPINION
This is an action to recover a real estate commission which respondent claimed was due
her by reason of the sale of the Hobson ranch by Hobson to Tomera. The complaint alleges
four causes of action: A contract between the parties wherein Hobson agreed to pay a 5
percent commission on a sales price of $200,000. The second cause of action is the same as
the first except there was no allegation that Hobson promised to pay 5 percent. The third
cause of action alleges that respondent was employed by Hobson to procure a purchaser and
after receiving the benefit of respondent's services conspired to deprive her of her
commission. The fourth cause of action is in quantum meruit.
After a trial without a jury the lower court entered judgment in favor of respondent and
against both appellants in the sum of $10,000 based on its findings of fact that respondent
Olin was a licensed real estate broker and that Anita Marisquerena was a duly licensed real
estate salesman for her; that when Marisquerena informed Hobson that she had an offer to
purchase the Hobson ranch for $180,000, Hobson refused the same and requested $200,000
net to him; that Marisquerena contacted Tomera and that he orally offered to purchase the
property for $205,000. Hobson refused this offer because he wanted $200,000 net to him.
Marisquerena then obtained from Tomera an offer to purchase the property for $210,000,
which would be $200,000 to Hobson and the $10,000 would go towards her commission.
Tomera and Hobson met for the first time either before or after the $210,000 offer was made.
From the nature of the evidence the trial court properly could find that this first meeting
took place after Tomera made his $210,000 offer.1 At this first meeting Tomera and
Hobson each stated to the other that they had not dealt with any real estate agent.
81 Nev. 60, 62 (1965) Hobson v. Olin
of the evidence the trial court properly could find that this first meeting took place after
Tomera made his $210,000 offer.
1
At this first meeting Tomera and Hobson each stated to
the other that they had not dealt with any real estate agent. They thereupon orally agreed
between themselves to a sale for $200,000.
2
It was not until after such agreement that
Marisquerena notified Hobson that her customer was Tomera. Even with such knowledge
Hobson consummated the deal with Tomera. Hobson did testify that he did not expect
Marisquerena to disclose her prospective buyer during the negotiation stages.
From the foregoing the court concluded that Hobson agreed to pay a 5 percent commission
of $10,000 based on the sale price of $200,000; that $10,000 was a reasonable fee; that
Tomera was ready, willing, and able to pay $210,000, leaving a net to Hobson of $200,000.
The court further determined that both Hobson and Tomera acted in bad faith toward
Marisquerena.
Prior to entry of final judgment, the trial judge filed a written decision which stated:
Having determined as a matter of fact that it was Anita Marisquerena's initial approach to Ed
Tomera that was the first of a series of events resulting in his purchase of the Hobson ranch;
also that defendants had notice prior to entering into the agreement to sell to Ed Tomera of
plaintiff's claim; * * *.
There is some evidence that Tomera through one Daly did make overtures to Hobson
regarding the purchase of the ranch prior to the time he was contacted by Marisquerena. The
evidence however supports a conclusion that such negotiations were terminated prior to
Marisquerena's employment.
____________________

1
The testimony of Tomera and Hobson that this meeting took place before Tomera made his $210,000 offer
was so improbable that the trial court was justified in disregarding the same.

2
Tomera admitted that after Marisquerena learned of this agreement between Tomera and Hobson she
contacted Tomera and he told her that he had bought the Hobson ranch, and that there was no reason for him to
pay $210,000 when he could get the ranch for $200,000.
81 Nev. 60, 63 (1965) Hobson v. Olin
[Headnote 1]
The evidence is sufficient to sustain the court's findings and conclusions that Marisquerena
was the procuring cause of the sale; that Hobson was guilty of bad faith in dealing directly
with Tomera, particularly after he was notified that Marisquerena had a sale of $210,000 with
$200,000 net to him, and also when he completed the sale with Tomera after he knew that
Tomera was the prospective purchaser obtained by Marisquerena. Romezzano v. Avansino,
44 Nev. 72, 189 P. 681; Close v. Redelius, 67 Nev. 158, 215 P.2d 659; Humphrey v. Knobel,
78 Nev. 137, 369 P.2d 872. See also Wiechmann v. Hale, 76 Nev. 492, 358 P.2d 113.
[Headnotes 2, 3]
Appellants contend that the trial court erroneously failed to recognize as true certain
uncontradicted evidence. In Duffill v. Duffill, 57 Nev. 224, 61 P.2d 985, we stated: In the
very nature of things there was no possibility of a contradiction of the testimony of the
witnesses mentioned, but it is a well-recognized rule that a court is not bound to accept
uncontradicted testimony. We believe this rule is particularly applicable in this case where
substantially all of the uncontradicted evidence consisted of testimony given by Tomera and
Hobson whom the court determined had acted in bad faith toward Marisquerena.
[Headnote 4]
There is nothing in the evidence which in any way connects appellant Thelma L. Hobson
with the dealings between her husband and Marisquerena. She was not even a party to the
ultimate written sales agreement between Joseph S. Hobson and Tomera.
Judgment against appellant Joseph S. Hobson affirmed. Judgment against appellant
Thelma L. Hobson reversed. Costs to respondent.
____________
81 Nev. 64, 64 (1965) Claybaugh v. Gancarz
H. L. CLAYBAUGH, Appellant, v. FRANK GANCARZ, Respondent.
No. 4569
February 5, 1965 398 P.2d 695
Appeal from judgment of the Fifth Judicial District Court, Nye County; Peter Breen,
Judge.
Senior locator of unpatented lode mining claim brought quiet title suit against junior
locator, who had relocated claim over the claim of the senior locator, and the junior locator
filed a cross-complaint seeking to quiet title. The lower court entered a judgment for the
junior locator, and the senior locator appealed. The Supreme Court, Badt, J., held that the
existence of good faith on the part of the senior locator in the location of the claim and the
bad faith of the junior locator in relocation of the claim when the junior locator had notice of
the senior locator's claim precluded the junior locator from challenging the title of the senior
locator.
Reversed.
Denton, Monsey & Winne, of Las Vegas, for Appellant.
Deaner, Butler & Adamson, of Las Vegas, for Respondent.
1. Mines and Minerals.
Failure of senior locator to recite his post office address in location notice of unpatented lode mining
claim and in location certificate was not substantial failure of senior locator to comply with statute. NRS
517.050; NCL 1931-1941 Supp. 4120-4122.
Testimony of junior locator, who located unpatented lode mining claim over claim of senior locator, in
quiet title suit that when he went onto claim to make his location he did not see any monuments could not
prevail over positive testimony of senior locator that he had erected the monuments. NRS 517.050; NCL
1931-1941 Supp. 4120-4122.
As to those having actual notice, defects in certificate of location of mining claim, whatever defects may
be, are to be deemed immaterial. NRS 517.050; NCL 1931-1941 Supp. 4120-4122.
Good faith of senior locator in locating unpatented lode mining claim and bad faith of junior locator in
relocating claim over senior locator's claim after senior locator brought junior locator on the claim and
junior locator knew that senior locator was claiming it as his own precluded junior locator from challenging
title of senior locator on ground that senior locator's notice of location was defective. NRS 517.050;
NCL 1931-1941 Supp. 4120-4122.
It was error for trial court in quiet title suit to grant motion of junior locator to strike senior locator's
location notice and his location certificate, on ground that they did not comply with statute, where they
were important items in support of senior locator's claim of good faith, and it was error for court to refuse
to hear evidence concerning lease of senior locator to junior locator before junior locator relocated over
senior locator's claim. NRS 517.050; NCL 1931-1941 Supp. 4120-4122.
OPINION
This is an appeal from a judgment in an action involving conflicting claims to an
unpatented lode mining claim in Bull Frog Mining District, Nye County, Nevada. The senior
locator was H. L. Claybaugh, appellant herein, under his asserted location of the Nine-oh lode
mining claim. The junior locator was Frank Gancarz, under his asserted location of the
Gancarz lode mining claim, which was subsequently located over the Nine-oh, under the
assumption and theory that the Nine-oh location was void by reason of Claybaugh's failure to
comply with the requirements of the Nevada statute in his asserted execution and recording of
his location certificate, and his performance of the required location work, marking of
boundaries, etc.
The issues were tried under Claybaugh's suit to quiet title against Gancarz and on the
answer and cross-complaint of Gancarz seeking to quiet title as against Claybaugh. At the
completion of appellant's case, the court granted respondent's motion to dismiss for failure to
prove a claim. Respondent introduced evidence in support of his counterclaim and the lower
court made findings and entered judgment holding that respondent Gancarz was entitled to
exclusive possession and his title was quieted against all claims of Claybaugh.
Gancarz was entitled to exclusive possession and his title was quieted against all claims of
Claybaugh. We proceed to the facts.
Claybaugh, being advised of the existence of a soap mine in Nevada, visited the property
in 1941 and in 1942, in each instance taking samples of the bentonite ore. In August, 1946,
accompanied by a mining engineer, he went upon the property and established corner
monuments, side monuments, and monuments at the point of discovery. On the same day he
filed a notice of location in the county recorder's office at Tonopah. He hired one John L.
Lamb to do the location work. It seems that the notice of location was posted on a location
monument August 15, 1946, and was recorded with the county recorder the same day. The
location certificate, made upon a printed form captioned Proof of Labor, was subscribed
and sworn to October 31, 1946, and filed for record in the county recorder's office November
6, 1946. Both of these instruments were admitted in evidence over objection and subject to a
motion to strike upon the ground that they were insufficient, together or separately, to
constitute a certificate of location as required by the pertinent statute NRS 517.050. A
subsequent motion to strike was granted upon the grounds mentioned.
Claybaugh's location notice was as follows:
LOCATION NOTICE Notice is hereby given that the undersigned has discovered and
hereby locates and claims the following described piece of mineral bearing ground as a Lode
Mining claim. From the discovery monument 200 feet in a Westerly direction and 1300 feet
in a Easterly direction and 300 feet on each side of the middle of the vein.
This claim is located approximately 1/2 mile Easterly from Beatty, Nev., on Range of Hill
carrying telephone line.
The general course of the vein or ledge is Easterly and Westerly and the size of the claim
is 1500 feet long by 600 feet wide. This claim shall be known as the Nine-oh situate in the
Bullfrog Mining District, Nye County, State of Nevada.
Located this 15th day of Aug., 19[46].
H. L. Claybaugh
L. A. Harris
Alvah R. Buswell
1

His certificate of location (entitled on a printed form used as Proof of Labor) is as
follows:
STATE OF NEVADA }
}
COUNTY OF NYE }
Before me, the subscriber personally appeared, John Lamb who being duly sworn, says:
that at least One hundred dollars worth of labor or improvements as location work were
performed and made upon Claim known as Nine O.H. 1/2 Mile from Beatty Nevada, Easterly
direction situated in Bull Frog (also known as Bull Frog county for 24 hours in 1991) Mining
District, County of Nye, State of Nevada, during the year ending July 1st, 1947.
Such expenditure was made by or at the expense of H. L. Claybaugh, of Las Vegas,
Nevada, owner of said claim, for the purpose of holding said claim.
Subscribed and sworn to before me this)
31 day of October 1946)
Dorothy M. Andre
NOTARY PUBLIC in and for
Nye County, Nevada
The foregoing was filed for record in the county recorder's office in Nye County, Nevada,
on November 6, 1946.
The pertinent statutes involved at the time were NCL, 1931-1941 Supp., 4120-4122,
reading as follows:
4120. WHO MAY LOCATEMETHODFORM AND POSTING OF NOTICE. 1.
Any person who is a citizen of the United States, or who has declared his intention to become
such, who discovers a vein or lode, may locate lode mining claim thereon by defining the
boundaries of the claim in the manner and within the time hereinafter prescribed, and by
erecting or constructing at the point of such discovery a monument of the size and
character of any of the several monuments prescribed in section 2 of this act and by
posting in or upon such discovery monument a notice of such location, which must
contain:
____________________

1
The recital of the year is indecipherable, but it was stipulated that the year was 1946. Although the two
co-locators with Claybaugh, as well as other parties who are joined with Gancarz, appear in the record of the
trial, the only parties to this appeal are appellant Claybaugh and respondent Gancarz.
boundaries of the claim in the manner and within the time hereinafter prescribed, and by
erecting or constructing at the point of such discovery a monument of the size and character
of any of the several monuments prescribed in section 2 of this act and by posting in or upon
such discovery monument a notice of such location, which must contain:
FirstThe name of the claim.
SecondThe name of the locator or locators, together with the post-office address of
such locator or locators.
ThirdThe date of location.
FourthThe number of linear feet claimed in the length along the course of the vein,
each way from the point of discovery, with the width claimed on each side of the center of the
vein and the general course of the lode or vein, as near as may be.
4121. LOCATION WORK.BOUNDARIES, HOW AND WHEN DEFINED. 2.
The locator of the lode mining claim must sink a discovery shaft upon the claim located four
feet by six feet to the depth of at least ten feet from the lowest part of the rim of such shaft at
the surface, or deeper, if necessary to show by such work a lode deposit of mineral in place; a
cut or crosscut or tunnel which cuts a lode at a depth of ten feet or an open cut along the said
ledge or lode, equivalent in size to a shaft four feet by six feet by ten feet deep, is equivalent
to a discovery shaft. The locator must define the boundaries of his claim by removing the top
of a tree (having a diameter of not less than four inches) not less than three feet above the
ground, and blazing and marking the same, or by a rock in place, capping such rock with
smaller stones, such rock and stones to have a height of not less than three feet, or by setting a
post or stone one at each corner and one at the center of each side line. When a post is used, it
must be at least four inches in diameter by four and one-half feet in length set one foot in the
ground. When it is practically impossible, on account of bedrock or precipitous ground, to
sink such posts, they may be placed in a mound of earth or stones, or where the proper
placing of such posts or other monuments is impracticable or dangerous to life or limb, it
shall be lawful to place such posts or monuments at the nearest point properly marked to
designate its right place.
such posts or other monuments is impracticable or dangerous to life or limb, it shall be lawful
to place such posts or monuments at the nearest point properly marked to designate its right
place. When a stone is used (not a rock in place) it must be not less than six inches in
diameter and eighteen inches in length set two-thirds of its length in the top of a mound of
earth or stone, four feet in diameter and two and one-half feet in height. All trees, posts or
rocks used as monuments, when not four feet in diameter at the base, shall be surrounded by a
mound of earth or stone four feet in diameter by two feet in height, which trees, posts, stones
or rock monuments must be so marked as to designate the corners of the claim located;
provided, however, that the locator of a mining claim shall within twenty days from the date
of posting the notice of location define the boundaries of said claim by placing at each corner
and at the center of each side line one of the hereinbefore described monuments, and shall
within ninety days of the date of posting said location notice perform the location work
hereinbefore prescribed.
4122. LOCATION NOTICE, FILING AND CONTENTSRECORD OF
LOCATIONCONTENTS OF LOCATION CERTIFICATEFORMER RECORDS
VALIDATED. 3. Any locator or locators of a mining claim, after having established the
boundaries of said claims, and after having complied with the provisions of this act with
reference to the establishment of such boundaries, may file with the district mining recorder a
notice of location, setting forth the name given to the lode or vein, the number of linear feet
claimed in length along the course of the vein, the date of location, the date on which the
boundaries of the claim were completed, and the name of the locator or locators. Should any
claim be located in any section or territory where no district has been as yet formed, or where
there is no district recorder, the locator or locators of such claims may file with the county
recorder, notice of location as set forth above, and said notice of location will be prima facie
evidence in all courts of justice of the first location of said lode or vein. Within ninety days of
the date of posting the location notice upon the claim of locator [he] must record his
claim with the county recorder of the mining district or county in which such claim is
situated by location certificate which must contain:
the date of posting the location notice upon the claim of locator [he] must record his claim
with the county recorder of the mining district or county in which such claim is situated by
location certificate which must contain:
FirstThe name of the lode or vein;
SecondThe name of the locator or locators, together with the post-office address of
such locator or locators;
ThirdThe date of the location and such description of the location of said claim, with
reference to some natural object or permanent monument, as will identify the claim;
FourthThe number of linear feet claimed in length along the course of the vein each
way from the point of discovery with the width on each side of the center of the vein, and the
general course of the lode or vein as near as may be;
FifthThe dimensions and locations of the discovery shaft or its equivalent, sunk upon
the claim;
SixthThe location and description of each corner, with the markings thereon. Any
record of the location of a lode mining claim which shall not contain all the requirements
named in this section shall be void, and every location of a mining claim made after the
effective date hereof shall be absolutely void unless a certificate of location thereof
substantially complying with the above requirements is recorded with the county recorder of
the county in which the claim is located within ninety (90) days after the date of location. All
records of lode or placer mining claims, millsites, or tunnel rights heretofore made by any
recorder of any mining district or any county recorder are hereby declared to be valid and to
have the same force and effect as records made in pursuance of the provisions of this act. And
any such record, or a copy thereof duly verified by a mining recorder or duly certified by a
county recorder, shall be prima facie evidence of the facts therein stated.
Pertinent amendments from the old statute may be noted as follows: The requirement that
the post office address of the locators be recited; the provision that every location of a
mining claim made after July 1, 1941, shall be absolutely void unless a certificate of
location thereof substantially complying with the above requirements is recorded with the
county recorder of the county in which the claim is located within 90 days after the date
of location.
every location of a mining claim made after July 1, 1941, shall be absolutely void unless a
certificate of location thereof substantially complying with the above requirements is
recorded with the county recorder of the county in which the claim is located within 90 days
after the date of location. The old statute, prior to the 1941 amendment, had contained only
the sentence that preceded such requirement which made the record of the location of a lode
mining claim not containing all the requirements named in the section void. Under the former
section, as thus described, it had been regularly held by this court and other courts of the
mining states that it was merely the record that was void and not the location, and that the
failure to conform simply deprived the locator of the prima facie proof of the facts recited in
the location certificate, but did not deprive him of otherwise making proof of such facts. The
1941 amendment, then, besides requiring a recital of the post office address of the locator,
provided further that not only the record of the location not containing all the requirements
named in the section should be void but that every location shall be absolutely void unless the
certificate substantially complies with the requirements. In other words, the effect of
non-compliance was drastically increased to make the location, as well as the record, void,
but to soften it by requiring only a substantial compliance.
Before applying a construction of the amendments we turn to further facts of the case. For
15 years following appellant's location of the Nine-oh, he performed the required annual labor
on the claim as evidenced by his annual proofs of assessment work. In the year 1960 he
brought respondent upon the claim in view of negotiations for having respondent and his
associates enter into a contract with reference to working the same under a contract and lease.
Respondent frankly concedes that on this occasion he saw some one working on the claim
and knew that appellant was claiming this Nine-oh as his own. In February, 1961, respondent
went to look for bentonite on his own behalf, thinking he could locate some ore near
appellant's Nine-oh claim, but did not want to file over him."
want to file over him. In his desire to know the full extent of appellant's claim, respondent
examined appellant's notice of location at the recorder's office in Tonopah. After determining
that appellant's notice of location was defective, respondent went to the claim, I put up a
location monument on Mr. Claybaugh's claim, and erected other monuments. Gancarz
further testified he had a Mr. Beko make out a location notice. And I went back to the claim
and nailed a can on the post (emphasis supplied) and I put a copy of the location notice in the
can. He offered in evidence a photograph which he identified as the location monument.
Directly behind it appears to be the portal of a tunnel. On the photograph of the four by four
post is an indecipherable paper. If this paper is a notice of location, it certainly is not the
Gancarz notice of location which, according to his testimony, was placed in a can nailed to
the post. If it is anything at all, it must be Claybaugh's notice of location. Gancarz further
identified photographs 9 and 10 as pictures of the inside of the mine. They appear to indicate
the portal of a tunnel with odds and ends stored therein. Gancarz testified that this condition
was there at the time he made his location, and before he did any work on the mine. After
completing his discovery work, he hired a person to do the location work, and then proceeded
to file a certificate of location May 26, 1961. On October 2, 1961, appellant filed his
complaint to quiet title and in due course respondent filed his answer and counterclaim to
quiet title.
As heretofore noted, appellant's notice of location and certificate of location, theretofore
admitted subject to a motion to strike, were later stricken on the ground that they did not
substantially comply with the amended statute. His complaint was dismissed on respondent's
motion, and respondent proceeded to prove his counterclaim. Appellant offered to prove that
respondent was his tenant at the time respondent located his Gancarz claim. There was
already in evidence a lease agreement executed July 1, 1960, from appellant to respondent.
On April 19, 1961, there was a stipulation to dismiss appellant's receivership suit against
respondent's company, Lovelite Cosmetics, Inc.
Lovelite Cosmetics, Inc. On March 6, 1961, Gancarz relocated the property in his own name,
but the stipulation of April 19, 1961, indicated that up to that date the lease was in effect.
Gancarz was a party to the written agreement of April 19, 1961, renouncing the contract and
lease of July 1, 1960. The trial court refused to hear any of the evidence offered on the ground
that appellant claiming to hold as a landlord had nothing to lease. The point here involved
was of course the general rule that a tenant cannot question his landlord's title.
[Headnote 1]
1. The main question presented is whether under the facts of the case Gancarz is entitled
to prevail over the Nine-oh location, or whether under such facts Claybaugh's work and
filings may be said to be a substantial compliance with the statute. It may first be noted that
neither in the location notice nor the location certificate did Claybaugh recite his post office
address. As against Gancarz' attack, however, it is apparent that Gancarz was in no way
prejudiced by this omission. He knew Claybaugh and knew his address. They had had
business dealings with each other and were negotiating about the property. It would be
unreasonable to hold the failure to recite his post office address as a substantial failure to
comply.
Taking the notice of location and certificate of location together, both of which were
offered in evidence at the same time, we find the recitals (1) that Claybaugh had made a
discovery and located a lode claim; (2) that he had erected a discovery monument; (3) that the
claim extended 200 feet in a westerly direction and 1,300 feet in an easterly direction and 300
feet on each side of the middle of the vein; (4) that the claim was located approximately
one-half mile easterly from Beatty, Nevada, on a range of hills carrying telephone line; (5)
that the general course of the vein was easterly and westerly; (6) that the size of the claim was
1,500 feet long by 600 feet wide; (7) that the name of the claim was Nine-oh; (8) in Bull Frog
Mining District, Nye County Nevada; (9) that it was located August 15, 1946; (10) that his
certificate of location was recorded with the county recorder November 6, 1946, within 90
days from the date of location; {11) that location work of at least $100 worth of labor or
improvements were performed on the claim and were made at Claybaugh's expense.
with the county recorder November 6, 1946, within 90 days from the date of location; (11)
that location work of at least $100 worth of labor or improvements were performed on the
claim and were made at Claybaugh's expense.
[Headnote 2]
Neither of the instruments described the discovery shaft nor the location and description of
each corner with the markings thereon. However, Claybaugh testified: Mr. Harris [the man
who accompanied him in making the location] is a mining engineer and we put up
monuments and corners and side monuments and monuments at point of discovery at the
mine. Q. As I understand your testimony, you put up corners, sideline markers, corner
markers, and markers at the point of discovery. A. Yes.
2
It is true that Gancarz testified that
at the time he went upon the claim to make his location he did not see any monuments. This
negative testimony cannot prevail over Claybaugh's positive testimony that he had erected the
monuments, and there was nothing otherwise in the case to contradict this testimony. The
same may be said as to the location and description of the location work.
We may note at this point that the statute prior to the 1941 amendment declaring that any
record of the location of the lode which did not contain all the requirements named would be
void, was interpreted in Ford v. Campbell, 29 Nev. 578, 92 P. 206, with Mr. Justice Norcross
speaking for the court, relying strongly on the opinion of Judge Hawley in Zerres v. Vanina, 9
Cir., 134 F. 618, holding a senior location valid as against a junior locator who claimed that
neither the location work nor the location certificate complied with the requirements of the
statute. Under that statute Justice Norcross quotes with approval Judge Hawley: If no
record at all is made until after a subsequent locator claims a right to the ground, should not
the original locator be allowed to prove, if he can, that he had in all other respects fully
complied with all the requirements of the law?'"
____________________

2
Respondent's Exhibit 3, a photograph showing what purports to be the location monument, as hereinabove
discussed, clearly indicates in its immediate vicinity, possibly only a few feet distant, the portal of the tunnel
comprising the location work.
the ground, should not the original locator be allowed to prove, if he can, that he had in all
other respects fully complied with all the requirements of the law?'
Respondent cites Gustin v. Nevada-Pacific Development Corp., 125 F.Supp. 811, an
opinion by Foley, Chief Judge, in behalf of the United States District Court for the District of
Nevada.
Judge Foley in that case held invalid certain of plaintiff's Kay Cooper group for which no
certificate of location had been recorded, and likewise held invalid certain claims asserted by
the defendants and counterclaimants, of the Ray Ricketts group for which location certificates
had not been recorded. It is the one case presented with reference to conflicts between a
senior and junior locator since the 1941 amendment, and appellant places great reliance upon
it. However, it is clearly distinguishable in two respects. In the instant case a location
certificate was filed within 90 days after the location. In Gustin no certificates of location or
purported certificates of location were filed within the 90-day period prescribed by the statute.
Secondly, no issues of the bad faith of the junior locator were raised. Had they been, it is
quite possible that the decision might have gone differently, as Judge Foley referred to the
amendment as a severe and confusing, but unfortunately legal, prerequisite to the location of
a lode mining claim and out of harmony with the time honored policy of the mining law that
the rules and regulations looking to the valid location of mining claims, * * * should be
simple and easily understood by the ordinary prospector.
We thus turn to those elements in the present litigation having to do with the good faith of
the appellant and the bad faith of the respondent with regard to the conflicting claims to the
property in question. In 2 Lindley on Mines 381 (3rd ed. 1914), we find the following,
supported by over a score of authorities in the note:
In the initiation of rights upon public mineral lands, as well as in the various steps taken
by the miner to perfect his location, his proceedings are to be regarded with indulgence, and
the notices required invariably receive at the hands of the courts a liberal construction.
the hands of the courts a liberal construction. The mining laws are to be expounded with as
little differentiation as may be between former known actual customs of miners and the
formulated expressions of congress based upon those customs in present positive law.'
The courts always construe these notices liberally, and if by any intendment the proof can
be reconciled and made consistent with the statement contained in them, the jury will be
allowed to say whether or not, upon the whole proof, the identification is sufficient.
(Bramlett v. Flick, 23 Mont. 95, 57 P. 869, 20 Morr.Min.Rep. 103).
To hold the locator to absolute technical strictness in all the minor details would be
practically to defeat the manifest end and object of the law. The pioneer prospector, as a rule,
is neither a lawyer nor a surveyor. Neither mathematical precision as to measurement nor
technical accuracy of expression in the preparation of notices is either contemplated or
required. The law being designed for the encouragement and benefit of the miners should be
liberally interpreted, looking to substance, rather than shadow, and should be administered
on the lines of obvious common sense.' Mere imperfections in the certificate will not render it
void.
As was said by the supreme court of Utah,
If by any reasonable construction, in view of the surrounding circumstances, the
language employed in the description will impart notice to subsequent locators, it is
sufficient.' (Citing numerous cases from Utah, Idaho, and Montana.)
Most of the cases cited were early cases. Fifty years after Lindley the monumental work
The American Law of Mining was published, edited by the Rocky Mountain Mineral
Foundation, University of Colorado. At Volume I, 5.67, we find the following:
Statutes of four jurisdictions state, in varying terms, that a failure to comply with any of
the state location requirements (including the place of monuments) will render the location
void. While these statutes have occasionally been applied strictly, it would seem that they are
subject to two general qualifications: * * * {2) where the act omitted or defectively
performed, such as marking, was one designed to provide notice of the location, an
adverse claimant with actual knowledge of the existence and extent of the defective
location should not be allowed to complain.
subject to two general qualifications: * * * (2) where the act omitted or defectively
performed, such as marking, was one designed to provide notice of the location, an adverse
claimant with actual knowledge of the existence and extent of the defective location should
not be allowed to complain. * * *
In recent years courts have placed increasing emphasis on the good faith of the conflicting
junior claimant, and have tended to excuse defects in the senior location if this is not shown.
Citing in the footnotes numerous authorities, old and new, we find the statement:
* * * [T]he law does not look with favor upon him who deliberately and knowingly
seeks to appropriate to himself the fruits of another's labor, and * * * the policy of the law
will always uphold an original discovery even though there be technical defects, if the
location is made in good faith.'
Numerous cases support the text. In MacDonald v. Midland Mining Co., 139 Cal.App.2d
304, 293 P.2d 911, an action for declaratory relief was filed by a junior as against the assigns
of a senior locator. It was in effect the typical action referred to in most of the cases as an
action involving conflicting claims to an unpatented mining claim. A lode had been
discovered and a location notice posted June 16, 1951. Discovery work was performed
between October and December, 1951. On February 5, 1953, an amended notice, meeting
statutory requirements, was recorded. Up to this point no third party had questioned the
ownership of the locators. Not even Burtt, who, though employed by plaintiff [the junior
locator] in February 1953 nevertheless prepared and recorded the Amended Notice of
February 5, 1953, in the name of and presumably as a friendly public gesture to the Law
Group [the senior locators], with whom, we infer, Burtt hoped to negotiate a sale or lease on
behalf of his employers, the plaintiff and the plaintiff's associates [the junior locators]. On
March 29, 1953, Neubert recorded a notice of location on Garnet Queen No. 3, calling it the
Garnet King Lode Claim. All the Neubert papers were prepared for him by Burtt.
papers were prepared for him by Burtt. Burtt also personally posted Neubert's notice on the
property. Thereafter Burtt supervised the discovery work and personally recorded the notice,
all in behalf of Neubert [junior locator] just as he had done for the Law Group [senior
locators] a few weeks earlier. On April 4, 1953, Neubert contracted to sell his interest in the
Garnet King to plaintiff. The parties interested in the junior location had been lessees of the
Garnet King No. 3 from the trustee of the senior locators. The court's final judgment, in
affirming the decision holding for the senior locator, said that the record supported the
finding that the junior locator's location was made in bad faith and he was not before the court
with clean hands, and in view of the fact that the action was an equitable one, such findings
alone were sufficient to support the denial of relief to the appellant junior locator, this,
notwithstanding 2307 of the California statute providing that a location shall be null and
void if the requirements of Section 2304 (performance of discovery work within 90 days) are
not complied with * * *. The court cited cases approving a liberal construction of the statute
where there is substantial compliance, and that [e] very reasonable doubt will be resolved in
favor of the validity of a mining claim as against the assertion of a forfeiture.' And
particularly: It is well settled that one who has actual knowledge of the claims of another to
mineral land cannot, in good faith, relocate the land because of technical defects in the
making of the location.' And again: Good faith confronts any subsequent locator who
enters upon the actual possession of a senior locator's land for the purpose of initiating a
claim to the same ground, although the senior location be invalid, and when such entry is in
bad faith such intrusion constitutes a naked trespass.'
In Harvey v. Havener, 135 Mont. 437, 340 P.2d 1084, the question presented was: Does
the failure to record a verified location notice operate to deprive the locator of a mining claim
of his interest therein as against one who enters the property and makes a subsequent location
with notice of the prior claim? The court said, no. The only person who can invalidate such
a defective recorded location notice is one who makes a valid location without actual
notice of the prior location."
location notice is one who makes a valid location without actual notice of the prior location.
The court further held: [A]s to persons with actual notice the provisions of the statute with
respect to the contents of the recorded certificate are not in any sense of the word mandatory.
In Flynn Group Mining Co. v. Murphy, 18 Idaho 266, 109 P. 851, the holding is reflected
in headnotes 11 and 12 reading, respectively, as follows:
Where it appears that a mining claim has been located in good faith, if by any reasonable
construction the language used in the location notice describing the claim and referring to
natural objects and permanent monuments imparts knowledge of the location of such claim to
a subsequent locator, it is sufficient.
Held, that the locator had actual notice that the ground in controversy had been located,
as well as constructive notice by an examination of the recorded notice, and that no
technicalities will be resorted to to sustain his relocation of the same ground.
In Brown v. Murphy, 36 Cal.App.2d 171, 97 P.2d 281, a junior locator sued to quiet title
to mining claims as against a senior locator. The trial court's denial of relief was affirmed in
the following language:
Good faith confronts any subsequent locator who enters upon the actual possession of a
senior locator's land for the purpose of initiating a claim to the same ground, although the
senior location be invalid, and when such entry is in bad faith, such intrusion constitutes a
naked trespass. [citing authorities] In view of this finding and conclusion it is unnecessary to
determine the many other points presented. Inasmuch as appellant must rely on the strength of
his own title, under the circumstances here related it was incumbent upon him to prove that
he located in good faith, especially when the property was in the actual possession of
another.
Johnson v. Ryan, 43 N.M. 127, 86 P.2d 1040, was an action by senior locators to quiet title
to a mining claim. The trial court found in substance that senior locators had performed all
necessary acts in locating this mining claim, with the exception of recording a copy of the
location notice, and rendered judgment in favor of junior locators.
claim, with the exception of recording a copy of the location notice, and rendered judgment in
favor of junior locators. The Supreme Court of New Mexico reversed, because the junior
locator had filed with notice and knowledge of the senior locator's claim of title. It cited
Bismarck Mining Co. v. North Sunbeam Co., 14 Idaho 516, 95 P. 14, as follows: It is the
well settled doctrine of all the later decisions that location notices and records should receive
a liberal construction, to the end of upholding a location made in good faith.
In Gerber v. Wheeler, 62 Idaho 673, 115 P.2d 100, where, as here, a junior locator filed on
the same ground covered by the senior locators' claim, the court found that as the ground was
already appropriated by a prior claim and the junior locators had actual knowledge of this, the
second location was void.
Montana and other states have brought the matter of good faith into the picture by statute.
Its statute provides: No defect in the posted notice or recorded certificate shall be deemed
material, except as against one who has located the same ground, or some portion thereof, in
good faith and without notice.
[Headnote 3]
However, with or without such statute, jurisdiction after jurisdiction has considered this
question and has decided mining conflicts on the basis of the presence or absence of good
faith. The purpose of the certificate is to impart constructive notice to subsequent locators of
the existence of the claim, its location and extent, just as the markings upon the ground are
intended to impart actual notice of the same facts. As to the parties having actual notice, as
respondent did in this instance, the defects in the certificate, whatever they may be, are to be
deemed immaterial. Heilman v. Loughrin, 57 Mont. 380, 188 P. 370, citing the Montana
statute and 2 Lindley on Mines 379 (3rd ed. 1914).
[Headnote 4]
In view of the increasing emphasis placed by the courts in recent years on the question of
the good faith of the conflicting junior claimant and to excuse defects in the senior location if
this is not shown, we hold that the existence of good faith in behalf of Claybaugh in the
location of the Nine-oh claim and the bad faith of Gancarz in the relocation of said claim
preclude Gancarz from challenging the title of the good faith senior locator.
the existence of good faith in behalf of Claybaugh in the location of the Nine-oh claim and
the bad faith of Gancarz in the relocation of said claim preclude Gancarz from challenging
the title of the good faith senior locator. The good or bad faith of the senior and junior
locators was a real and important issue to be determined by the trial court.
[Headnote 5]
It was error for the trial court to grant respondent's motion to strike appellant's location
notice and his location certificate. They were important items in support of his good faith. It
was also error for the court to refuse to hear evidence concerning the lease to respondent in
existence at the time respondent relocated over appellant's claim. Such evidence was relevant
and material with reference to the asserted bad faith of respondent.
3

The trial court's explanation of its rulings that Claybaugh had nothing to lease simply
begged the questionwhether Claybaugh's Nine-oh was or was not a valid subsisting claim.
As the record contains ample evidence of the good faith of appellant in the location of the
Nine-oh and bad faith of the respondent in relocating the claim as the Gancarz, no purpose
will be served in remanding the case for new trial.
The foregoing is without intent to indicate that this court would not, in the absence of such
element of the junior locator's bad faith, hold the senior locator to a substantial compliance
with the requirements of the statute as amended in 1941.
The judgment is reversed with instructions to enter an order denying the defendant's
motion to dismiss and to enter judgment in favor of the plaintiff in accordance with the prayer
of his complaint.
McNamee, C. J., concurs.
____________________

3
In the court below and in the briefs on this appeal the parties argue the applicability of the rule that a lessee
may not question his landlord's title, in a suit to quiet title. It is unnecessary for us to determine this question in
this appeal other than with relation to the question of the good faith of the respondent.
Thompson, J., concurring:
I understand the holding of today's case to mean that substantial compliance with the
requirements of the statute governing the mandatory certificate of location will be accorded a
broad and liberal meaning in favor of a senior locator in a suit against a bad faith junior
locatorbut that the same liberality will not prevail if the litigation does not disclose bad
faith in the junior locator. Equity demands this result, and I am in accord with it, though I
must confess that our liberal construction in this case comes very close to exceeding rational
limits. The senior locator posted and recorded a document labeled a notice of location.
From its contents it cannot be clearly ascertained whether it was intended to be a permissive
notice of location or the mandatory certificate of location. It contained more information than
required by the permissive notice of location statute, but was deficient in fully satisfying the
requirements of the mandatory certificate of location proviso. He also recorded a proof of
labor which the majority treat (erroneously, I think) as a certificate of location. The
information contained in the notice of location and the proof of labor, singly or in
combination, does not fully meet the requirements of a certificate of location.
Notwithstanding the apparent deficiencies, a court of justice cannot prefer a junior locator,
who has acted in bad faith, over a senior locator who has been guilty of no greater sin than
inadvertence. Were this not the situation before us, I would not hesitate to declare that the
statute governing the mandatory recording of a certificate of location had not been
substantially complied with.
____________
81 Nev. 83, 83 (1965) Carmody v. District Court
PATRICK CARMODY and SUE CARMODY, Petitioners, v. THE SEVENTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Lincoln, and
THE HONORABLE PETER BREEN, Judge Thereof, Presiding, Respondents.
No. 4828
February 5, 1965 398 P.2d 706
Original petition for writ of prohibition.
The Supreme Court, McNamee, C. J., held that defendants previously convicted of robbery
could be charged for murder because of death resulting from robbery, and that defenses of
double jeopardy, merger, and res judicata were unavailable.
Alternative writ vacated and proceeding dismissed.
Earl M. Hill, of Reno, for Petitioners.
Harvey Dickerson, Attorney General, and Roscoe H. Wilkes, District Attorney, Lincoln
County, for Respondents.
1. Criminal Law.
Where victim's death resulting from events at time of robbery occurs after conviction for robbery, crime
of murder is separate and distinct offense. NRS 200.030, subd. 1.
2. Criminal Law.
Under double jeopardy statute, robbery and murder were separate and distinct offenses. NRS 174.390.
3. Criminal Law.
Plea of guilty to robbery charge did not merge crimes of robbery and murder under statute fixing degrees
of murder, since merger could take place only where a crime includes other offenses and neither robbery
nor murder includes the other. NRS 200.030.
4. Judgment.
Doctrine of res judicata if applicable where defendants convicted of robbery are subsequently charged
with murder of victim, might preclude defendants from denying commission of robbery but would not
allow double jeopardy defense.
OPINION
This is an original petition for a writ of prohibition.
On May 31, 1964 R. B. Free was beaten and robbed in his place of business at Pioche,
Nevada.
his place of business at Pioche, Nevada. Later on the same day petitioners were arrested and
charged with the robbery. On June 8, 1964 at their arraignment on the robbery charge
petitioners each entered a guilty plea and were sentenced to the state prison.
On June 13, 1964 Free, the robbery victim, died from the injuries received during the
robbery. On July 8, 1964 the grand jury returned an indictment against the petitioners
charging them with murder alleged to have been committed during the robbery.
1
At their
arraignment on said murder charge petitioners entered pleas of former jeopardy. The pleas
were overruled, petitioners stood mute, and the court entered a plea of not guilty for each of
them. Prior to the time set for trial this proceeding was filed and an alternative writ of
prohibition issued.
No factual issue exists because the parties have agreed to the facts in a written stipulation
filed herein.
The only question for determination is whether under the circumstances of this case the
petitioners have already been in jeopardy by reason of their plea of guilty to the robbery
charge.
Cases in two states, New Jersey and Texas, hold that a conviction of robbery is a bar to a
subsequent prosecution for murder done in perpetration of the robbery. State v. Mowser, 92
N.J.L. 474, 106 A. 416, 4 A.L.R. 695; Doggett v. State, 130 Tex.Cr. 208, 93 S.W.2d 399. The
basis for the New Jersey and Texas rule that the plea of double jeopardy would be sustained is
that both crimes were products of the same act.
On the other hand, the majority rule is that although robbery and murder may both arise
out of the same act a conviction or acquittal of one offense will not bar a prosecution for the
other. State v. Barton, 5 Wash.2d 234, 105 P.2d 63; State v. Hall, 86 Idaho 63, 383 P.2d 602;
22 C.J.S., Criminal Law 295{5), note 6 {1961), and cases there cited.
____________________

1
Subsection 1 of NRS 200.030 provides: All murder which shall be perpetrated by means of poison, or lying
in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed
in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary, or which shall be committed
by a convict in the state prison serving a sentence of life imprisonment, shall be deemed murder of the first
degree; and all other kinds of murder shall be deemed murder of the second degree.
602; 22 C.J.S., Criminal Law 295(5), note 6 (1961), and cases there cited.
[Headnote 1]
Where the death of the victim occurs after the conviction for robbery the cases are
unanimous
2
that the crime of murder is a separate and distinct offense and changes the
character of the offense of robbery. Southworth v. State, 98 Fla. 1184, 125 So. 345. See also
State v. Calvo, 240 La. 75, 121 So.2d 244; People v. Tideman, 57 Cal.2d 574, 21 Cal.Rptr.
207, 370 P.2d 1007; 15 Am.Jur., Criminal Law 391 (1938). (In the New Jersey Mowser
case the decedent died from the effects of his injuries at noon of the same day.)
The Nevada statute relating to double jeopardy is NRS 174.390 which states: When the
defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment
or information, the conviction, acquittal or jeopardy is a bar to another indictment or
information for the offense charged in the former, or for an attempt to commit the same, or
for an offense necessarily included therein, of which he might have been convicted under that
indictment or information.
[Headnote 2]
It is readily apparent that robbery and murder are separate and distinct offenses under this
statute. See State v. Feinzilber, 76 Nev. 142, 350 P.2d 399.
[Headnote 3]
Petitioners argue that by reason of their plea of guilty to the robbery charge the crimes of
robbery and murder became merged under NRS 200.030. This contention is without merit. A
merger could take place only where a crime includes other offenses. Neither robbery nor
murder includes the other. State v. Hall, supra.
Petitioners urge that inasmuch as the doctrine of res judicata is applicable in criminal
prosecutions, 147 A.L.R. 991, the defense of double jeopardy properly lies.
[Headnote 4]
Because of their conviction of robbery by reason of their pleas of guilty, under the doctrine
of res judicata they may be precluded in the trial for murder from contending that they did
not commit the robbery.
____________________

2
This was conceded during oral argument by petitioners.
they may be precluded in the trial for murder from contending that they did not commit the
robbery. Even so, no fundamental unfairness would result to petitioners in their trial for
murder. Furthermore petitioners have cited no authority which would permit the defense of
double jeopardy merely because the doctrine of res judicata might be applicable.
Alternative writ of prohibition vacated and the proceeding is dismissed.
____________
81 Nev. 86, 86 (1965) Foreman v. Ver Brugghen
CAROLYN FOREMAN, Appellant, v. ADRIEN VER
BRUGGHEN, M.D., Respondent.
No. 4800
February 9, 1965 398 P.2d 993
Appeal from the Eighth Judicial District Court, Clark County; Peter Breen, Judge.
Suit for alleged medical malpractice. The trial court rendered judgment on directed verdict
for defendant, and plaintiff appealed. The Supreme Court, Badt, J., held that there was no
question of fact for jury in absence of any evidence that doctor's treatment was not in
accordance with the standard of practice in the locality.
Affirmed.
Keith C. Hayes, of Las Vegas, for Appellant.
Jones, Wiener & Jones, of Las Vegas, for Respondent.
1. Physicians and Surgeons.
There was no question of fact for jury in malpractice suit in absence of any evidence that doctor's
treatment was not in accordance with the standard of practice in the locality. NRCP 50.
2. Evidence.
Under the statute the relevant writings of a person recognized in his profession or calling as an expert are
admissible in malpractice case, even though the expert is not familiar with standard of practice in
locality and is not subject to cross-examination.
standard of practice in locality and is not subject to cross-examination. NRS 51.040.
No determination could be made that rejection of offer in evidence of medical texts was abuse of
discretion, where texts formed no part of record on appeal in malpractice case. NRS 51.040.
Error in sustaining objection to offer of article written by doctor sued for malpractice, which should have
been admitted for purposes of impeachment, was not prejudicial in view of entire absence of any evidence
that doctor's diagnosis, preoperation treatment or postoperation treatment was not in accordance with
standards of the profession in the locality.
OPINION
By the Court, Badt J.:
[Headnote 1]
This appeal from a judgment on a directed verdict for the defendant physician in a
malpractice suit seeks to have us overrule our former holding in support of the locality rule
in Lockhart v. Maclean, 77 Nev. 210, 361 P.2d 670. This we decline to do for the reasons
stated in that case. The trial court's direction for a verdict for defendant was based on that
decision. In this there was no error. NRCP 50.
It is true that the first concurring opinion in that case stated that it should not be taken as
precluding us, in a proper case in the future, from re-examining said rule and, if necessary for
the just determination of any specific case, reconsidering and possibly departing from its
general application. It is also true that the second concurring opinion was based not by
establishing as a law of this state the locality rule,' but on the basis that the qualification of a
medical expert to testify * * * is a question for the sound discretion of the trial court * * * and
will not be disturbed on appeal unless a clear abuse of discretion is shown. In any event, we
hold that in the absence of any evidence that the defendant's treatment was not in accordance
with the standard of practice in the Las Vegas area, the granting of defendant's motion for a
directed verdict was without error.
Appellant assigns error in the court's rejection of her offer in evidence of a group of
medical texts under NRS 51.040 reading as follows:
1. A statement of fact or opinion on a subject of science or art contained in a published
treatise, periodical, book or pamphlet shall, in the discretion of the court, and if the court
finds that it is relevant and that the writer of such statement is recognized in his profession or
calling as an expert on the subject, be admissible in actions of contract or tort for malpractice,
error or mistake against physicians, surgeons, dentists, optometrists, osteopathic physicians or
surgeons, chiropractors, chiropodists, naturopathic physicians, hospitals and sanitaria, as
evidence tending to prove the fact or as opinion evidence.
1

Dr. Drury was loathe to testify that any of the texts offered in evidence was a standard
text. The closest he would come was fairly standard. He did not testify that any of the
authors was an expert on the subject.
[Headnotes 2, 3]
Respondent's objections to receiving the texts in evidence were based on two grounds. (1)
He asserted that to admit them would be to fly in the face of the rule laid down in Lockhart
v. Maclean, supra; that under Lockhart v. Maclean an expert witness could not testify unless
he were familiar with the standard of practice in the locality, and, even if he did qualify in
such respect, was subject to cross-examination; that an expert familiar simply with standards
throughout the United States was not competent to testify; that to accept the offered texts in
evidence would permit the testimony of persons who not only were not familiar with the
standards of practice in the area but were not even sworn and were not subject to
cross-examination. (2) The second ground of objection was that these texts dealt with
herniated discs, which indicated extrusions but that in Dr. Drury's testimony nothing was
said about extrusions but that the witness had found a degenerated disc.
____________________

1
Paragraph 2 of said section provides for notice of intention to offer such material at the trial. The statutory
notice was given.
disc. This objection amounts to the objection that the material offered was not relevant.
While considerable doubt is thrown upon the question whether any of the writers of the
respective texts qualified under the statute as being recognized in his profession or calling as
an expert on the subject, this objection was not raised, and counsel for respondent
specifically waived such objection. We find no merit to the first ground of objection. NRS
51.040 was not in issue in Lockart v. Maclean. No medical texts were even offered in
evidence in that case. It is noted that under the statute the material is competent, in the
discretion of the court, if the court finds that the material is relevant and the writer of the
statement contained in the treatise is recognized in his profession as an expert. Therefore, the
exercise of the court's discretion was called upon to determine whether the offered texts were
relevant.
The court took the texts home with him to examine over the night recess. He convened
court at 10:45 next morning and announced that the objection was sustained as to all volumes
offered, because he was bound by the decision in Lockhart v. Maclean. He noted that NRS
51.040 was passed in 1953 and Lockhart v. Maclean was decided in 1961, and that he must
assume that the Supreme Court knew of the statute when writing that decision. The court
made no mention of exercising his discretion on the objection made on the ground that the
material was not relevant.
Accordingly, we find it impossible to place our stamp of approval on the ground for which
the court excluded the medical texts. This, however, does not dispose of the matter. In the
court below, for the convenience of the court and counsel, appellant's attorney prepared a list
of the texts, with reference to volume and page, that he desired to offer. He was given
permission to file the same, but neither the texts themselves nor any abstract from such texts
was made a part of the record on appeal. The trial court urged at one point that a record be
made of the offer. The court said: What I am getting at, you have to have something in the
record as to what you are offering."
offering. But the matter rested there. The texts were never marked for identification, and no
specific offer of proof was made. The texts form no part of the record on appeal.
In Charleston Hill v. Clough, 79 Nev. 182, 380 P.2d 458, the concurring opinion recited:
[I]f the defendant wished to make a record for later appellate review, an offer of proof was
required. The record would then disclose what testimony would have been given had the
court permitted further questioning. Such an offer of proof was not made. Accordingly, I do
not believe that we are at liberty to guess what the evidence might have been and rule on the
admissibility of such supposed evidence. Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374
P.2d 684, NRCP 43(c). Thus, I would affirm the judgment below because the record does not
contain the information necessary for us to rule upon the assigned error. Such has indeed
been the consistent position taken by this court. We have no way of determining the relevancy
of the offered texts without examining them. All the record discloses is a list of nine texts.
We are unable to say that their rejection was an abuse of the court's discretion.
[Headnote 4]
Appellant particularly assigns error in the court's order sustaining an objection to the offer
of an article written by respondent. This should have been admitted as proper for purposes of
impeachment, but the error is not prejudicial in view of the entire absence of any evidence
that the respondent's diagnosis, pre-operation treatment, or post-operation treatment was not
in accordance with the standards of the profession in the locality of Las Vegas. Lockhart v.
Maclean, supra.
The judgment is affirmed.
McNamee, C. J., and Thompson, J., concur.
____________
81 Nev. 91, 91 (1965) Valley View Distribs. v. U.S. Rubber Co.
VALLEY VIEW DISTRIBUTORS OF NEVADA, INC., A Corporation (Sometimes Called
VALLEY VIEW DISTRIBUTORS OF LAS VEGAS, INC.), and DELL TAYSOM and
FRANCIS C. LUND, Appellants, v. UNITED STATES RUBBER COMPANY, a
Corporation, Respondent.
No. 4807
February 9, 1965 398 P.2d 993
Appeal from the Eighth Judicial District Court, Clark County; Taylor H. Wines, Judge.
Action to recover amount represented by promissory note and further sum on an open
account. The lower court rendered judgment for plaintiff and defendants appealed. The
Supreme Court held that the evidence sustained the finding on which judgment was rendered.
Affirmed.
Hawkins, Cannon & Hawkins, of Las Vegas, for Appellants.
V. Gray Gubler, of Las Vegas, for Respondent.
Account, Action on; Bills and Notes.
Evidence sustained findings upon the basis of which judgment was rendered on note and open account.
OPINION
Per Curiam:
This is an action brought by respondent against appellants to recover $38,758.17
represented by a promissory note in that amount and the further sum of $31,909.09 on an
open account for goods, wares, and merchandise sold by respondent to appellant Valley View
Distributors of Nevada, Inc., which account was guaranteed in writing by appellants Dell
Taysom and Francis C. Lund.
After a trial before the court, judgment was entered in favor of respondent and against the
appellants for the said amounts.
Only issues of fact were presented to the lower court and because this opinion will be of
no value to the bench or bar it is sufficient to state that these were resolved in favor of
respondent and there was substantial evidence to sustain the findings of the court and its
judgment based thereon.
81 Nev. 91, 92 (1965) Valley View Distribs. v. U.S. Rubber Co.
and because this opinion will be of no value to the bench or bar it is sufficient to state that
these were resolved in favor of respondent and there was substantial evidence to sustain the
findings of the court and its judgment based thereon.
No reply brief was filed by the appellants. At the time set for oral argument, although
counsel for respondent was present and argued, no one appeared on behalf of appellants.
Affirmed.
____________
81 Nev. 92, 92 (1965) Rainsberger v. State
JACK RAINSBERGER, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 4650
February 16, 1965 399 P.2d 129
Appeal from judgment of the Eighth Judicial District Court, Clark County; District Judges
John C. Mowbray, Grant L. Bowen, and Merwyn H. Brown.
Defendant, on plea of guilty, was found guilty in the lower court of first-degree murder
and he appealed. The Supreme Court, Thompson, J., held that fact that when defendant had
pleaded guilty a one-judge court could determine degree of crime and fix sentence and that,
after judgment had been vacated, law then in effect required three-judge court to do so did not
entitle defendant, who did not want jury trial, to be set at liberty on ground that one-judge
court could not sentence him and law providing three-judge court was ex post facto as to him,
and that finding that homicide was murder in first degree was justified.
Judgment affirmed.
Samuel S. Lionel, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Carson City; Edward G. Marshall, Clark County
District Attorney, Las Vegas, for Respondent.
1. Criminal Law.
Procedure to ascertain degree of crime and fix sentence is within constitutional power of legislature to
provide.
2. Criminal Law.
Court hearing, following plea of guilty, is not a trial for issue of defendant's guilt is no longer present.
3. Criminal Law.
Constitutional safeguards pointing to fair trial are greatly diluted in significance after defendant pleads
guilty.
4. Criminal Law.
Trial to determine ultimate issue of innocence or guilt is waived by plea of guilty.
5. Criminal Law.
Presumption of innocence ceases to exist after plea of guilty, and defendant stands before court asking
mercy and understanding with respect to degree and penalty.
6. Criminal Law.
If plea of guilty is not itself constitutionally infirm, one who has so confessed may not rely upon
constitution to free him.
7. Criminal Law.
So far as law is concerned, one's plea to charge of murder is to be governed by truth or falsity of charge.
8. Criminal Law.
Legislative purpose in establishing procedure to conclude murder case, in which accused pleads guilty,
was to avoid senseless trial and to provide fair procedure for disposition of case. NRS 200.030. subd. 3.
9. Criminal Law.
One who has announced his guilt in court of law does not thereafter possess constitutional right with
respect to procedural follow-through activated by his plea.
10. Courts; Criminal Law.
Amendment requiring three judges to determine degree of murder and give sentence accordingly if
defendant confesses is not an ex post facto law. NRS 200.030, subd. 3; U.S.C.A.Const. art. 1, 10.
11. Criminal Law.
That when defendant pleaded guilty a one-judge court could determine degree of crime and pronounce
sentence and that, after vacation of that judgment, law then in effect required a three-judge court to do so,
did not entitle defendant, who did not want a jury trial, to be set at liberty on ground that a one-judge court
could not determine degree and impose sentence and law providing three-judge court to do so was ex post
facto as to him. NRS 200.030, subd. 3; U.S.C.A.Const. art. 1, 10.
12. Criminal Law.
Constitutional protections are primarily concerned with trial of those who profess their innocence.
13. Criminal Law.
Where one accused of murder voluntarily pleaded guilty upon arraignment in open court, with advice of
competent counsel, federal constitutional right to counsel was not violated, notwithstanding fact that
accused, before entering his guilty plea, was without counsel when he confessed crime and at preliminary
hearing. U.S.C.A.Const. Amend. 6.
14. Criminal Law.
Confession, if involuntarily made, would not be admissible.
15. Criminal Law.
Violation of right to counsel requirement may preclude admission of confession as evidence.
U.S.C.A.Const. Amend. 6.
16. Criminal Law.
Accused's tale related in sheriff's office about having heard voices that compelled him to sacrifice victim
he had seen did not qualify as a confession of murder.
17. Criminal Law.
Confession of defendant, who after ten days' imprisonment, had sent word to deputy sheriff that he
wanted to talk to him and who had made full confession of murder in presence of three persons was
voluntary, where he had not been abused by police, he had not been threatened, no promises had been
made to him, his jail cell had been as good as area could provide, and, although he had complained of
stomach pains, services of his physician had neither been requested nor needed.
18. Homicide.
Corpus delicti of murder is fact of death and that such death resulted not from accident or suicide, but
from criminal agency of another person.
19. Homicide.
Corpus delicti of murder was shown by defendant's confession and testimony of pathologist.
20. Criminal Law.
When one pleads guilty to murder, state is not required to prove corpus delicti.
21. Homicide.
Three district judges were justified in finding that homicide confessed to by defendant had been murder
in first degree, either on felony murder doctrine, or upon facts apart from robbery committed. NRS
200.030, subd. 3.
OPINION
[Headnotes 1-6]
On April 25, 1963, three district judges unanimously found Jack Rainsberger guilty of first
degree murder, and sentenced him to death. NRS 200.030(3).
1
The appeal is from that
judgment and sentence.
____________________

1
NRS 200.030 (3) provides in part, * * * If any person is convicted of murder on his confession in open
court without a jury, or upon a plea of guilty without specification of a degree, the supreme court shall appoint
two district judges from judicial districts other than the district in which the confession or plea is made, who
shall, with the district judge before whom such confession or plea was made, or his successor in office, by
examination of witnesses, determine the degree of the crime and give sentence accordingly. Such determination
shall be by unanimous vote of the three district judges.
appeal is from that judgment and sentence. The crime was committed on November 3, 1958,
and on January 9, 1959, Rainsberger, with the advice of court-appointed counsel, entered a
plea of guilty to an open charge of murder. At that time the statute provided for a hearing
before a single district judge to determine degree and pronounce sentence. The hearing was
held, and that judge found Rainsberger guilty of first degree murder, and sentenced him to
death. However, that judgment was vacated because of prejudicial error. Rainsberger v. State,
76 Nev. 158, 350 P.2d 995. On remand a new hearing was ordered before three district judges
because, pending that appeal, the legislature had amended the law to require three district
judges rather than one to dispose of such a case. See Stats. Nev. 1959, ch. 448, effective April
6, 1959. The ordered hearing before three judges did not immediately occur. Claiming the
change in the law to be ex post facto and in violation of the federal constitution, art. 1, 10,
Rainsberger, by a petition for habeas corpus to the state district court, sought his liberty. The
petition was denied, and the denial affirmed on appeal. The ex post facto question was not
reached. Rainsberger v. Leypoldt, 77 Nev. 399, 365 P.2d 489. Similar relief was then sought
in the federal court and denied because state remedies had not been exhausted. Rainsberger v.
Lamb, 313 F.2d 195(9th Cir.); cert. denied, 374 U.S. 847 (1963). The hearing before three
district judges then took place. Again Rainsberger was found guilty of first degree murder and
sentenced to death. On this appeal from that judgment and sentence we are required to resolve
the ex post facto question and other claimed violations of the federal constitutional
requirements concerning the right to counsel and due process. We turn to discuss these and
other assigned errors. It is appropriate, however, first to place this case in context. A different
complexion is cast upon claimed constitutional violations and other claims of error when, as
here, a defendant charged with murder, has voluntarily and with the assistance of competent
court-appointed counsel, entered a plea of guilty in open court. The procedure to ascertain the
degree of the crime, and fix sentence, is within the constitutional power of a legislature to
provide.
power of a legislature to provide. Hallinger v. Davis, 146 U.S. 314 (1892). The court hearing,
following a plea of guilty, is not a trial, for the issue of the defendant's guilt is no longer
present. State v. Ceja, 53 Nev. 272, 298 P. 658; Ramos v. State, 58 Nev. 446, 83 P.2d 147;
State v. Blackwell, 65 Nev. 405, 198 P.2d 280; Rainsberger v. State, 76 Nev. 158, 350 P.2d
995; Archibald v. State, 77 Nev. 301, 362 P.2d 721; Annot., 34 A.L.R.2d 919. The
constitutional safeguards pointing to a fair trial are greatly diluted in significance, for a trial to
determine the ultimate issue of innocence or guilt has been waived by the plea of guilty. The
presumption of innocence has ceased to exist, and the defendant stands before the court an
admitted murderer, asking mercy and understanding with respect to degree and penalty. If the
plea of guilty is not itself constitutionally infirm, it would appear that one who has so
confessed may not rely upon the constitution to free him. It is within this context that we must
consider the claims of error presented here.
1. Ex Post Facto. The United States Constitution, Art. 1, 10, provides that: No State
shall * * * pass any * * * ex post facto Law, * * *. The appellant contends that the
legislative amendment (Stats. Nev. 1959, ch. 448) requiring three judges, rather than one, to
determine the degree of the crime, and pronounce sentence, is an ex post facto law as to him
and may not constitutionally be applied. Indeed, he argues that there is no longer present in
Nevada a procedure for handling his case. A one judge court may not now determine degree,
and impose sentence, because that law has been repealed. A three judge court may not do so
because that proviso is ex post facto and unconstitutional as applied to him. Nor may we
order that his guilty plea be withdrawn and a not guilty plea substituted, because he does not
want a jury trial. In short, he asks that we order his liberty, notwithstanding his guilt. Of
course, we cannot accommodate him. None of the cases relied upon by the appellant (Kring
v. Missouri, 107 U.S. 221 (1882); Thompson v. Utah, 170 U.S. 343 (1898) Putty v. United
States, 220 F.2d 473 (9th Cir. 1955) Mallett v. North Carolina, 181 U.S. 589 (1901); Malloy
v. South Carolina, 237 U.S. 180 (1915); Beazell v. Ohio, 269 U.S. 167 {1925); Hallock v.
United States, 1S5 F.
Ohio, 269 U.S. 167 (1925); Hallock v. United States, 185 F. 417 (8th Cir. 1911); United
States v. Hall, 26 Fed.Cas. 84 (No. 15285) (C.C.D. Pa. 1809) bears any resemblance to this
case. None of them involves a confession of guilt in open court. Notwithstanding this
difference, we are directed to a quotation from the Kring case, supra, and to certain testimony
in the record that demands (according to the appellant) the conclusion that the present law
may not be constitutionally applied to him. The quotation from Kring is: We are of the
opinion that any law passed after the commission of an offence which, in the language of Mr.
Justice Washington, in United States v. Hall, In relation to that offence, or its consequences,
alters the situation of a part to his disadvantage,' is an ex post facto law * * *.; and the
testimony is that of a psychologist whose opinion is that one judge would, in all probability,
be more lenient than three in specifying degree and fixing sentence.
2

[Headnotes 7-9]
Because of this testimony Rainsberger argues that, had a three judge court been provided
for when he entered his plea at arraignment, he would not have chosen to plead guilty, for it is
psychologically too easy for three judges to be severe. As the law then in effect provided for a
single judge to determine the degree of the crime and impose sentence, he chose to place that
awesome responsibility on that judge rather than to face the probable consequences of a jury
trial. The nature of the choice open to him at the time of his arraignment was changed by the
legislative amendment to his detriment and, upon remand for another hearing before a three
judge court, he was deprived of the kind of a choice that one accused of murder is
constitutionally entitled to enjoy.
____________________

2
The psychologist sent out slightly over 300 questionnaires to supreme court justices in each of the 49 states.
(No questionnaires were sent to the Nevada justices.) One hundred and fifty-two were returned, of which number
110 gave definitive answers. Sixty-eight (62%) of those who answered definitively believed that one judge
would be more lenient than three with respect to the determination of the degree of the crime and penalty.
Forty-two (38%) believed that there would be no difference between a single judge and a panel of three. The
psychologist concluded that the reason for this result was: * * * that the judge who is a member of a panel
shares the responsibility for the decision and also has the comfort of knowing that the others agree with him,
whereas a single judge does not have this to support his rather serious decision in such a case.
three judge court, he was deprived of the kind of a choice that one accused of murder is
constitutionally entitled to enjoy. The change in the law altered the situation to his
disadvantage. The contention is wholly unsound. So far as the law is concerned one's plea to
a charge of murder is to be governed by the truth or falsity of the charge. The legislative
purpose in establishing a procedure to conclude a murder case, in which the accused pleads
guilty, was not to provide psychological alternatives. Rather, its purpose was to avoid a
senseless trial (for without the statutory scheme a plea of not guilty would be required) and to
provide a fair procedure for disposition of the case. One who has announced his guilt in a
court of law does not thereafter possess a constitutional right with respect to the procedural
follow-through activated by his plea, nor does a change in that procedure of the kind here
present have constitutional implications. Cf. People v. Ward, 50 Cal.2d 702, 328 P.2d 777.
[Headnotes 10, 11]
The ex post facto issue in this case was presented to the Court of Appeals for the Ninth
Circuit, but not decided. Rainsberger v. Lamb, 313 F.2d 195 (9th Cir. 1963). However, Judge
Magruder, writing for the court, made the following statement: Personally, I would be
willing to assume without deciding that appellant has exhausted his remedies under the state
law, * * * after which I would decide the case on the merits, since it seems clear to me that no
constitutional rights have been violated. We agree with his expression that no constitutional
rights have been violated. We hold that the 1959 amendment to NRS 200.030 (3) is not an
ex post facto law.
[Headnotes 12, 13]
2. The Right to Counsel and Due Process. Rainsberger was without counsel when he
confessed on November 14, 1958. He was not represented by counsel at the preliminary
hearing. Following his plea of guilty to the charge of murder, his confession was received in
evidence during the hearing before the three judge court as relevant to degree and penalty. It
was admitted over the objection that it was not voluntarily given.
the objection that it was not voluntarily given. The contention is now made that the judgment
below is void because federal constitutional protections were not observed. The appellant's
position rests primarily upon Escobedo v. Illinois, 378 U.S. 478 (1964), (decided since the
judgment below); Hamilton v. Alabama, 368 U.S. 52 (1961); White v. Maryland, 373 U.S. 59
(1963); and Haynes v. Washington, 373 U.S. 503 (1963). A circumstance of major
significance present here was not present in any of the cited cases. In the instant matter the
accused voluntarily, and with the advice of competent counsel, entered his plea of guilty to
the charge of murder when arraigned in the district court. The issue of guilt was thereby
removed from the case. The contention is not offered that his plea in open court was tainted
by a failure to observe constitutional requisites. The constitutional protections are primarily
concerned with the trial of those who profess their innocence. Cf. In re Lopez and Winhoven,
42 Cal.Rptr. 188, 398 P.2d 380 (decided January 29, 1965), holding that the right to counsel,
as established in Escobedo and Massiah, does not apply retroactively on collateral attack. One
of the reasons given for that holding was that new constitutional interpretations should be
used only to protect the innocent defendant against the possibility of conviction of a crime he
did not commit, and the denial of counsel under Escobedo does not affect the issue of guilt.
See also Morford v. State, 80 Nev. 438, 395 P.2d 861. For this reason alone, the case before
us and those relied upon by the appellant dealing with the right to counsel are poles apart.
Indeed, had Rainsberger pleaded not guilty, been tried and convicted, the doctrine of
Escobedo would not require a reversal for, as will hereinafter be shown, the confession here
involved was unsolicited and voluntary. Whatever the divergent views regarding the scope of
Escobedo (Compare Bean v. State, 81 Nev. 25, 398 P.2d 251; People v. Hartgraves, 31 Ill.2d
375, 202 N.E.2d 33, with State v. Neely, 395 P.2d 557 (Or. 1964); People v. Dorado,40
Cal.Rptr. 264, 394 P.2d 952; and People v. Dorado, 42 Cal.Rptr. 169, 398 P.2d 361, decided
January 29, 1965), we are confident that the ruling does not embrace the case where the
confession is unsolicited and voluntary.
the confession is unsolicited and voluntary. We hold that where, as here, one accused of
murder voluntarily pleads guilty upon arraignment in open court, with the advice of
competent counsel, the federal constitutional right to counsel is not violated, notwithstanding
the fact that the accused, before entering his guilty plea, was without counsel when he
confessed the crime and at the preliminary hearing.
[Headnotes 14, 15]
Though the issue of guilt was removed from this case by the plea of guilty, there still
remained for decision the issues of degree and penalty. Relevant evidence was required to
resolve them. The confession and much other evidence was received for that purpose. Of
course the confession, if involuntarily made, would not be admissible. The reliability of a
confession is still the central due process question even though, within certain well defined
limits (Escobedo v. Illinois, supra; Massiah v. United States, 377 U.S. 201 (1964)), a
violation of the right to counsel requirement may also preclude its admission as evidence. It is
unthinkable that a coerced confession could be used in determining degree and penalty. We
therefore turn our attention to the totality of circumstances disclosed by the record.
[Headnotes 16, 17]
The appellant's argument is that his confession was coerced due to being held
incommunicado by the police for over nine consecutive days in a cramped cell under the glare
of a bright, ever present light, while suffering intense physical pain, and without the aid and
comfort of friends, relatives, legal counsel, or medical attention. As we read the record, the
three judge panel was fully justified in concluding otherwise. When the present homicide was
committed Rainsberger was on parole from California. He had there been convicted on two
counts, charging robbery. The circumstances of those crimes are strikingly similar to the facts
here disclosed. It cannot be said that he was unfamiliar with legal criminal processes. The
contention is not advanced that he lacks intellectual capacity. He obviously does not.
Following his arrest on November 4, 1958, he was interrogated at the sheriff's office for about
two hours, during which he related a tale about having heard voices that compelled him to
sacrifice a victim he had seen. Some incriminatory statements about the crime under
investigation were elicited, though the tale does not qualify as a confession, State v. Behiter,
55 Nev. 236, 29 P.2d 1000. No objection was made when the deputy sheriff testified to that
conversation with Rainsberger. The confession to which objection was made at the hearing,
was obtained ten days later, on November 14, 1958. On that occasion Rainsberger sent word
to a deputy sheriff that he wanted to talk to him. Talk he did. A full confession of his crime
was voluntarily given in the presence of three persons (the stenographer and two deputy
sheriffs), transcribed, signed and witnessed. His confession was not coerced. He asked to
speak out. His statements were not solicited. There is no evidence that he was abused by the
police during the ten days of his confinement before he confessed. He was not threatened, nor
were promises made. Though it is true that he complained of stomach pains, the services of a
physician were neither requested nor needed. His jail cell was apparently as good as the area
could then provide. Though the United States Supreme Court has noticed and held improper
many sophisticated and some not so sophisticated methods of coercion (Watts v. Indiana, 338
U.S. 49 (1949); Spano v. New York, 360 U.S. 315 (1959); Reck v. Pate, 367 U.S. 433
(1961); Haynes v. Washington, 373 U.S. 503 (1963)), the case before us is not within the
ambit of its rulings.
[Headnotes 18-21]
3. Other Claims of Error. The remaining assignments of error do not rest upon the
constitution. It is asserted that the cause of death is not established by the proof, nor is a
willful, deliberate and premeditated killing shown. The assertion is not valid. The corpus
delicti (that is, the fact of death, and that such death resulted not from accident or suicide, but
from the criminal agency of another personState v. Fouquette, 67 Nev. 505, 221 P.2d 404;
Sefton v. State, 72 Nev. 106, 295 P.2d 3S5) is abundantly shown by Rainsberger's
confession and the testimony of the pathologist.
P.2d 385) is abundantly shown by Rainsberger's confession and the testimony of the
pathologist. We shall not repeat that evidence here, because when one pleads guilty to murder
the state is not required to prove the corpus delicti. Rainsberger v. State, 76 Nev. 158, 350
P.2d 995 (prior appeal); Ramos v. State, 58 Nev. 446, 83 P.2d 147. The three district judges
were justified in finding that the homicide was murder in the first degree, either on the felony
murder doctrine, NRS 200.030 (1), or upon the facts apart from the robbery. Rainsberger
walked up behind the victim as she was getting into her car at a parking lot. He exhibited a
knife, told her to drive him out of town and give him her money. At his direction she drove
him out of town and turned off onto a graveled road. She was told to stop, and take off her
slip and stockings. Rainsberger then used those garments to tie her hands behind her. The
victim started to yell. Rainsberger gagged her. The confession then reveals: Rainsberger: I
think she got one of her arms lose because she kept trying to reach for the knife. I had the
knife laying on the seat beside me. I kept pushing her off * * * and she came right over the
top of me, out the other side away from the driver's seat. I went after her and I had a hold on
her and I picked up the knife and I just started slashing. I hit her in the back once, I remember
that. All it did was stop her, stunned her. I had the knife in my left hand, I must have. I
grabbed a hold of her shoulder or her hair or something and I threw her down on the ground
or something and then I started to using the knife.
Capt. O'Reilly: Was she standing or on the ground then?
Rainsberger: On the ground, I am pretty sure. Then I got back in the car, in the back seat,
I knocked her purse over and started looking for money and found her wallet and I picked it
up and I got in the front seat and I started out to drive. He took the victim's wallet which
contained ten dollars.
The testimony of the pathologist, and his written report, show seven distinct knife stab
wounds in the victim's neck and throat. This evidence, and the confession, warrants an
inference that, before the first wound was made, Rainsberger had formed a deliberate design
to kill.
kill. Kuk v. State, 80 Nev. 291, 392 P.2d 630. The homicide and the robbery are fully
established. State v. Mangana, 33 Nev. 511, 112 P. 693; State v. Ceja, 53 Nev. 272, 298 P.
658. The specification of first degree murder was not error.
The court-appointed counsel for the appellant has discharged his assigned task with skill
and devotion. We commend him. The lower court is directed to give him the certificate
specified in subsection 3 of NRS 7.260 to enable him to receive compensation for his services
on this appeal. The judgment and sentence below is affirmed.
____________
81 Nev. 103, 103 (1965) United Pacific Insurance Co. v. St. Denis
UNITED PACIFIC INSURANCE COMPANY, Appellant, v. JOSEPH E.
ST. DENIS AND CECILIA ST. DENIS, Respondents.
No. 4806
February 17, 1965 399 P.2d 135
Actions to foreclose mechanics' and materialmen's liens, in which the defendant filed
third-party complaint against surety on contractor's performance bond. The trial court
dismissed third-party complaint, but subsequently entered amended judgment for third-party
plaintiffs, and surety appealed. The Supreme Court, Badt, J., held that where amended
decision awarding third-party plaintiff over $6,000 in addition to prior amended decision was
filed without further motion to amend or notice and without any further hearing, judgment
based thereon was required to be reversed.
Reversed.
Singleton and DeLaney and Rex. A. Jemison, of Las Vegas, for Appellant.
Albert M. Dreyer, of Las Vegas, for Respondents.
1. Judgment.
Motion to amend judgment was not invalidated by fact that it was not in writing where motion was stated
in written notice of hearing of motion. NRCP 7 (b) and (1), 59(e).
2. Judgment.
Motion to amend judgment, in which moving party stated he would use in support of motion pleadings,
files, records and testimony but in which he made no statement of grounds of motion, was fatally defective
in that it did not comply with statutory requirement that it state with particularity grounds therefore and also
in that it failed to set forth relief or order sought, especially in view of absence of indication that hearing
was ever had on motion. NRCP 7(b).
3. Judgment.
Statutory requirement that motion must state with particularity grounds therefore and to set forth relief
sought are particularly applicable to motion to amend judgment. NRCP 7(b).
On appeal from final judgment, reviewing court was not precluded from reviewing errors occurring in
former orders contained in prior amended judgments. NRCP 72; NCL 1931-1941 Supp. 9385.62.
5. Judgment.
Where amended decision awarding third-party plaintiff over $6,000 in addition to prior amended decision
was filed without further motion to amend or notice and without any further hearing, judgment based
thereon was required to be reversed. NRCP 7(b).
6. Judgment.
Motion to alter or amend judgment must state grounds with particularity and relief sought. NRCP 59.
7. Judgment.
Motion to alter or amend judgment may not be bypassed or avoided by obtaining from court, on ex parte
application, order to show cause, which also avoids and bypasses requirement that grounds of motion shall
state with particularity grounds therefor and shall set forth relief or order sought. NRCP 59.
OPINION
The action was initiated in the court below by a complaint to foreclose mechanics' and
materialmen's liens. Two or more of such lien foreclosure suits were consolidated for trial.
However, the above-captioned appeal indicates the only parties before this court. The only
issue before the court involves a third-party complaint filed by the respondents against the
appellant herein as the third-party defendant, based upon a contractor's bond executed by
appellant which, among other things, held the owner harmless as against liens of
materialmen and laborers.
the third-party defendant, based upon a contractor's bond executed by appellant which, among
other things, held the owner harmless as against liens of materialmen and laborers. A trial
was held upon the third-party complaint and the answer thereto, and the trial court on
September 16, 1960, made findings of fact and conclusions of law in which the court found
that the third party defendant, United Pacific Insurance Company, surety on the contract
bond set forth in the third party complaint has not been subject to any default upon the part of
the principal or breach in the construction contract for which the defendants, Joseph E. St.
Denis and Cecilia St. Denis were indemnified.
Conclusions of law were also filed on said date, holding that the third-party defendant,
United Pacific Insurance Company, have judgment of dismissal against the third-party
plaintiffs, and judgment was entered accordingly.
On September 16, 1960, the attorney for said third-party plaintiffs acknowledged in
writing the receipt of notice of entry of judgment, together with a copy of the findings of fact,
conclusions of law, and copy of judgment and decree of foreclosure.
On the 22nd day of September, 1960, Joseph E. St. Denis served written notice on James
McGroarty, the main contractor for the construction in which the lien claimants were
involved and to his attorney, that on the 23rd of September, 1960, at 9:15 o'clock A.M., they
would move the court for amendment of the judgment heretofore entered to hold defendant,
United Pacific Insurance Company, liable on its performance bond. The movant stated that he
would use in support of said motion the pleadings, files, records, and testimony in the
above-entitled matter, but made no statement of the grounds of his motion. This notice of
motion was within the time limit prescribed by NRCP 59(e), but is attacked on several
grounds.
[Headnotes 1-3]
It is asserted, first, by appellant that the motion to amend the judgment was without any
force because it was not in writing. This ground we must reject. NRCP 7{b) {1) requires that
a motion "shall be made in writing, shall state with particularity the grounds therefor, and
shall set forth the relief or order sought.
7(b) (1) requires that a motion shall be made in writing, shall state with particularity the
grounds therefor, and shall set forth the relief or order sought. The requirement of writing is
fulfilled if the motion is stated in a written notice of the hearing of the motion. The
committee's note to Form 19 reads: The above motion and notice of motion may be
combined and denominated notice of motion. See Rule 7(b). However, the motion was
fatally defective because it did not comply with the requirement to state with particularity the
grounds therefor and failed to set forth the relief or order sought. Bearing in mind that a
judgment had been entered dismissing United Pacific Insurance Company, the relief sought
by the motion to amend was simply to hold defendant United Pacific Insurance Company
liable on its performance bond as alleged in the complaint heretofore filed
1
whether for a
judgment of $3,893.23 as found in the court's decision of October 4, 1962, or for $10,582.58
in accordance with the court's amended decision of October 24, 1962, or the additional sum
of $5,609.00 as recited in the judgment of November 9, 1962. The decisions of October 4,
1962, and October 24, 1962, and the judgment of July 8, 1964, are treated further infra. But
of particular concern is the fact that the record does not disclose any hearing had on such
motion to amend the judgment. The court's Decision of October 4, 1962, recited that this
action was tried by the court, etc. The Amended Decision of October 24, 1962, simply
referred to the October 4, 1962, decision and that the court in reviewing the record recalled
further matters. The findings of fact and conclusions of law of November 9, 1962, recited
that the cause had come on duly and regularly before the court on July 13, 1959, and February
14 and 19, 1960. There is no indication of any kind that a hearing was ever had on the motion
to amend the judgment. The salutary requirements of NRCP 7(b) that a motion must state
with particularity the grounds therefor and set forth the relief sought are particularly
applicable to a motion to amend the judgment.
____________________

1
The reference to the complaint so far as this court can tell added nothing. The complaint is not included in
the record sent to this court.
to a motion to amend the judgment. In this instance United Pacific Insurance Company, the
third-party defendant, was not advised as to what contentions it had to meet and the
uncertainty and insufficiency are in no respect relieved by anything in the record showing that
the motion was heard.
St. Denis had filed his notice of motion for a new trial which had been set for hearing, but
on October 11, 1960, moved to vacate such hearing and the said motion was granted by a
visiting judge. Over 15 months later, on January 25, 1962, the court made and filed an order
in the consolidated lien foreclosure suits that the foreclosure sale noticed for January 29,
1962, is continued until a date subsequent to February 7, 1962, and that all parties to the
action
2
appear before the court on said date and show cause why said sales should not
forever be barred and why judgment should not be entered in favor of Joseph E. and Cecilia
St. Denis against McGroarty, the principal contractor, and United Pacific Insurance
Company.
On October 4, 1962, the court filed a decision that respondents have judgment against
McGroarty and United Pacific Insurance Company in the sum of $3,893.23. Counsel for the
St. Denises was instructed to prepare findings, conclusions, and judgment. The record does
not disclose any motion, notice, or hearing pursuant to which said decision was rendered.
3

On October 24, 1962, an amended decision was made and filed that Joseph E. and Cecilia
St. Denis have judgment against McGroarty and United Pacific Insurance Company for the
sum of $6,689.35 in addition to the amounts awarded in the previous decision, thus raising
the judgment to $10,582.58, and directed findings, conclusions, and judgment to be drawn in
accordance with both the prior decision and this amended decision. The record does not
disclose that the amended decision was based upon any motion, notice, or hearing. In fact, the
wording of the amended decision would indicate that it was made by the court of its own
motion.
____________________

2
Appellant was at this time no longer a party because of the entry of a judgment dismissing the action as
against them.

3
The opening sentence of the Decision states: This action was tried by the court so long ago that it
becomes difficult even to review the notes with any certain memory.
wording of the amended decision would indicate that it was made by the court of its own
motion. The record does not show service or notice of this amended decision on appellant.
On November 9, 1962, findings and conclusions and judgment were filed (but not served,
nor was notice thereof served, on appellant) entering judgment in favor of respondents against
appellant in the sum of $12,359.00.
On March 12, 1964, Singleton and DeLanoy (with whom was associated Rex A. Jemison
who argued the present appeal in behalf of appellant) was substituted in place of Milton W.
Keefer, as attorney for appellant.
On March 26, 1964, appellant filed a motion to strike the court's decision of October 4,
1962, its amended decision of October 24, 1962, and its findings and judgment of November
9, 1962, so far as the same pertained to United Pacific Insurance Company on the grounds
that said orders were void, with notice that said motion would be brought on for hearing April
3, 1964.
On May 22, 1964, counsel for the St. Denises filed a memorandum in opposition to such
motion to strike, a memorandum in support of the motion to stay foreclosure sales, and for
judgment in favor of the St. Denises against McGroarty and United Pacific Insurance
Company. The St. Denises assert that such memoranda were filed in support of their original
motion to correct the judgment originally rendered by the court, which motion had been made
in September, 1960.
On July 7, 1964, the court rendered a written decision which was filed the following day,
which recited in some detail the proceedings since the commencement of the action July 10,
1959, denied the motions to strike and ordered that the judgment against United Pacific
Indemnity may stand. On July 15, 1964, notice of appeal of United Pacific Insurance
Company from the decision of October 4, 1962, the amended decision of October 24, 1962,
the judgment of November 9, 1962, and the decision of July 8, 1964, was filed.
[Headnote 4]
On November 2, 1964, on motion of respondents, we dismissed the appeal from the
decision of October 4, 1962, from the amended decision of October 24, 1962, and from the
decision of July S, 1964, on the ground that no appeal lay from said decisions.
1962, from the amended decision of October 24, 1962, and from the decision of July 8, 1964,
on the ground that no appeal lay from said decisions. We denied the motion to dismiss the
appeal from the judgment of November 9, 1962 (made on the ground that the appeal was not
taken in time), because no written notice of the entry of that judgment had ever been served
as required by NRCP 73, and the time for appeal had not commenced to run. In the appeal
from the judgment of November 9, 1962, we are not precluded from reviewing errors
occurring in the former orders contained in the former decisions.
4

The court's Decision of July 7, 1964, contained the following final paragraph: The two
files in this case reflect a long series of complicated, interrupted Court sessions, request for
Points and Authorities which were never submitted, a long series of modifications of
Judgments, a Motion somewhere along the line to dismiss United Pacific, an Order reflecting
[reversing?] that Order.' After an appraisal of the entire situation over the long period of
years, without any assistance from counsel for either McGroarty or Pacific Indemnity
Company, it would seem too useless to the Court at this time to vacate any Judgment or to
grant a Motion to Strike on behalf of Pacific Indemnity. It is therefore ORDERED the Motion
to Strike be denied; that the Judgment against United Pacific Indemnity may stand.
We have recited this in full because it reflects the feeling of helplessness in the court by
reason of the period of four years over which the litigation had been maintained, the
complexity thereof, and the lack of help which the court was entitled to expect from counsel.
It perhaps explains the occasions on which the court seemed to feel impelled to take matters
into its own hands.
The amended decision of October 24, 1962, which more than doubled the judgment
against United Pacific Insurance Company, was made without notice, motion, or hearing of
any kind. Respondents contend that the decision of October 24, 1962, as well as the decision
of October 4, 1962, was rendered in response to the motion of September 16, 1960, to
modify the judgment.
____________________

4
Advisory Committee's note to NRCP 72; 9385.62 NCL, 1931-41 Supp.
October 4, 1962, was rendered in response to the motion of September 16, 1960, to modify
the judgment. We must reject this contention. It finds no support in the record.
[Headnote 5]
Without a further motion to amend the judgment, without any further notice, and without
any further hearing the judge filed an amended decision awarding an additional $6,689.35.
The amended decision of October 24, 1962, was followed by findings, conclusions, and a
judgment based thereon. This judgment must fall. This was the judgment from which the
present appeal was taken.
[Headnotes 6, 7]
We must turn our attention to the court's order to show cause dated and filed January 25,
1962. That order was issued to the parties named in its caption, namely, Benton, plaintiff, and
the St. Denises, McGroarty Construction Company and Hammond Sheet Metal Company,
defendants, in action No. 91485, and Larkin Plumbing & Heating Co., Inc., plaintiff, and the
St. Denises and McGroarty, defendants, in action No. 93930. We consider it most significant
that it was not addressed to United Pacific Insurance Company. This is understandable, as the
trial court's order, findings, conclusions, and judgment of September 16, 1960, ordered a
judgment of dismissal of the third-party complaint of the St. Denises against United Pacific.
Further, said order to show cause was not preceded by any motion for such order or by any
notice that such an order would be sought. At the time the trial judge issued such order to
show cause he had already theretofore entered an order of dismissal in favor of United Pacific
as against the third-party plaintiffs. The order to show cause of January 25, 1962, ordered the
parties named to show cause why judgment should not be entered in favor of Joseph E. St.
Denis and Cecilia St. Denis against James McGroarty and United Pacific Insurance
Company. For what? In what amount? And on what grounds? Prior to the effective date of
the adoption of NRCP, January 1, 1953, it had been the law of this state that the manner of
vacating judgments was regulated by statute and that the statutory provisions must be
complied with in order to authorize the court to act; that this could not be done upon a
mere motion, as it did not come within the provisions of Rule 6S {relief upon grounds of
mistake, inadvertence, surprise, or excusable neglect), but was relegated to the
provisions in relation to new trials.
the manner of vacating judgments was regulated by statute and that the statutory provisions
must be complied with in order to authorize the court to act; that this could not be done upon
a mere motion, as it did not come within the provisions of Rule 68 (relief upon grounds of
mistake, inadvertence, surprise, or excusable neglect), but was relegated to the provisions in
relation to new trials. State of Nevada v. District Court, 16 Nev. 371. A motion to alter or
amend a judgment now comes within the provisions of NRCP 59. The three essentials are a
motion, notice of such motion, and the requirement that it be served not later than ten days
after written service of notice of entry of the judgment. Like other motions, it must state the
grounds with particularity, and the relief sought. There is no provision under which the
motion may be bypassed or avoided by obtaining from the court, on ex parte application, a
so-called order to show cause, which also avoids and bypasses the requirement that the
grounds of the motion shall state with particularity the grounds therefor, and shall set forth
the relief or order sought. Both of these items are absent from the order to show cause. We
are satisfied that the court was without jurisdiction (however much it may have been moved
by its understandable impatience) to issue the order to show cause of January 25, 1962.
Although the same was made returnable on February 7, 1962, the record shows no
proceedings had on said date or thereafter which led to the court's decision of October 4,
1962, and its amended decision of October 24, 1962, although the court's findings of fact,
conclusions of law, and judgment of November 9, 1962, recite that the cause came on duly
and regularly before the court, sitting without a jury, on the 13th of July, 1959, and the 4th
and 19th days of February, 1960.
Our final conclusion may be summed up as follows: The trial on the third-party claim of
Joseph E. and Cecilia St. Denis, third-party plaintiffs, against United Pacific Insurance
Company, as third-party defendant, resulted in a judgment of dismissal of said third-party
plaintiffs. The record does not disclose any proceedings justifying the court's action in
changing, modifying, and annulling said judgment.
annulling said judgment. The judgment of November 9, 1962, from which this appeal is
taken, entering judgment in favor of Joseph E. St. Denis and Cecilia St. Denis, third-party
plaintiffs, against United Pacific Insurance Company in the respective sums of $6,750.00 and
$5,609.00, plus interest and costs, is reversed with costs.
This opinion reciting the sundry proceedings in the court below has necessarily referred in
several places to orders made with reference to foreclosure of the liens of the lien claimants,
but it is limited in its effect only to the issues raised as between United Pacific Insurance
Company (the third-party defendant), as appellant, and Joseph E. St. Denis and Cecilia St.
Denis (the third-party plaintiffs) as respondents.
Thompson, J., concurs.
McNamee, C. J., had approved draft of this opinion but was hospitalized on account of
injuries before the final draft was ready for his signature.
____________
81 Nev. 112, 112 (1965) Thorne v. State
JERRY THORNE, Appellant, v. STATE
No. 4795
February 24, 1965 399 P.2d 201
Judge.
The defendant was convicted in the trial court of first degree burglary, and he appealed.
The Supreme Court held that by answering plea of not guilty instead of demurring, defendant
waived defect, if any, in describing building allegedly burglarized by name by which it had
been known a year before the burglary instead of name by which it was known at the time of
burglary.
Judgment affirmed.
James L. Wadsworth, of North Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Carson City; William P. Beko, Nye County District
Attorney, Tonopah, for Respondent.
1. Burglary.
Allegation of ownership of building allegedly burglarized was not necessary.
By pleading not guilty instead of demurring, defendant waived defect, if any, in information describing
building allegedly burglarized by name by which it had been known a year before the burglary instead of
name by which it was known at the time of burglary. NRS 174.210, 174.230.
Test of sufficiency of information after trial and conviction without claim of jurisdictional inadequacy or
of failure to charge public offense differs from test applicable on demurrer; after trial, the pleading will be
liberally construed, especially in absence of prior demurrer.
OPINION
Per Curiam:
[Headnotes 1-3]
A jury convicted Thorne of first degree burglary. Following conviction he moved for a
new trial and also to arrest judgment. Each motion was denied. He appeals from the judgment
and sentence subsequently pronounced. His post trial motions and this appeal offer the same
claim of error. It is that the information failed to name accurately the building which he had
unlawfully entered, nor did it name the owner of that building. His claim has no merit.
Ownership of the building need not be alleged. Cf. State v. Simas, 25 Nev. 432, 62 P. 242.
Thorne was charged with having unlawfully entered Andre's Trading Post at Beatty,
Nevada, with the intent to commit larceny. One year before, the building was known by that
name. However, at the time of the crime it was known as Andre's General Store. Thorne
did not choose to demur to the information. NRS 174.210; NRS 174.230. Instead, he entered
his plea of not guilty, thereby waiving any defect of the kind here involved. Wood v. State, 76
Nev. 312, 353 P.2d 270. Obviously, the test of the sufficiency of an information after trial
and conviction {when there is no claim of a jurisdictional inadequacy or the failure to
charge a public offense) properly differs from that which would apply on demurrer to the
information.
after trial and conviction (when there is no claim of a jurisdictional inadequacy or the failure
to charge a public offense) properly differs from that which would apply on demurrer to the
information. After trial, the pleading will be liberally construed, Rimkus v. United States, 7
Cir., 56 F.2d 52 (motion to arrest judgment), especially when there has been no prior
demurrer thereto. Nor will a court close its eyes to the evidence. Here, three eye witnesses
testified to the crime. It is undisputed that the burglary occurred at Andre's General Store,
formerly Andre's Trading Post.
For all of the reasons mentioned there can be no substance to the claim of error in this
case.
Affirmed.
____________
81 Nev. 114, 114 (1965) Frame v. Grisewood
ARTHUR J. FRAME, Appellant, v. DONALD
GRISEWOOD, Respondent.
No. 4809
March 1, 1965 399 P.2d 450
Bowen, Judge.
Host-guest automobile accident case. The trial court rendered judgment, and the defendant
appealed. The Supreme Court, Thompson, J., held that the intoxication instruction was
proper, that an instruction concerning guest's duty to warn host of danger was not required,
that host did not establish his defenses of assumed risk and contributory negligence, that
evidence as to host's speed was admissible, and that preclusionary ruling of trial court as to
voir dire examination of prospective jurors was not abuse of discretion.
Judgment affirmed.
Loyal Robert Hibbs, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Respondent.
1. Trial.
Even though pretrial order in host-guest automobile accident case did not specify willful misconduct as
an issue, where jury was instructed on that subject and no objection was made, it was permissible for jury
to consider willful misconduct as predicate for liability. NRS 41.180; NRCP 51.
The Supreme Court stated the facts most favorable to the winner below.
3. Automobiles.
The word intoxication in automobile guest statute recognizing that host may be found liable to guest for
injury proximately resulting from intoxication of host means a condition resulting from imbibing of
alcoholic liquor wherein a person's normal faculties, either of perception, or of will, or of judgment, are
impaired so that he no longer has capacity to drive vehicle with caution characteristic of sober person of
ordinary prudence. NRS 41.180.
4. Automobiles.
The aim of automobile guest statute to allow recovery if host's consumption of alcohol proximately
caused injury to (or the death of) his guest should be considered when the term intoxication in the statute
is construed. NRS 41.180.
5. Automobiles.
Under the automobile guest statute, the precise degree of inebriation is relatively unimportant if, in fact,
the host's consumption of alcohol was the proximate cause of the guest's injury. NRS 41.180.
6. Trial.
The failure in host-guest automobile accident case to give instruction concerning guest's duty to warn host
of danger was not error where there was no showing that guest was aware of a danger of which the host was
unaware. NRS 41.180.
7. Negligence.
The defense of assumed risk is based on theory of consent: the main requisites are a voluntary exposure
to danger and actual knowledge of risk assumed.
8. Automobiles.
Evidence in host-guest automobile accident case raised jury question as to whether the guest assumed the
risk of bald tires, host's intoxication, high speed race with another automobile, and attempt to negotiate a
turn at 100 m.p.h. NRS 41.180.
9. Automobiles.
The evidence in host-guest automobile accident case raised jury question as to whether guest was
contributorily negligent. NRS 41.180.
10. Automobiles.
Witness' testimony about motorist's high speed and his race with small sports car at a point about one
mile distant from accident scene was not so remote as to be inadmissible, where witnesses continued their
observation of motorist's driving to a point immediately before the accident.
11. Automobiles.
Testimony about host's high speed and his race with small sports car was admissible in host-guest
automobile accident case on issues of gross negligence and willful misconduct and as independent proof of
speed at place of accident. NRS 41.180.
12. Jury.
The peremptory challenge does not exist as a matter of right, apart from legislative provision therefor; the
legislature may determine the number of peremptory challenges each side is to have, or whether any shall
exist at all. NRS 16.040.
13. Jury.
The legislature cannot abrogate right to challenge juror for cause. NRS 16.050.
14. Appeal and Error; Jury.
It is appropriate for trial court to treat a proposed voir dire examination designed to develop information
for exercise of peremptory challenge differently than a voir dire examination to develop grounds for a
challenge for cause; for review purposes, the test in either instance is whether an abuse of discretion has
occurred. NRCP 47 (a); NRS 16.040, 16.050.
15. Jury.
The trial court's failure to inquire whether prospective jurors used alcoholic beverages and to what extent,
whether they had driven an automobile after having one or two drinks, the speed at which they normally
drive on unobstructed highway, when they replace a tire because of wear and tear, and whether they use
recapped tires was not abuse of discretion, where questions were designed to develop information for
exercise of peremptory challenges. NRCP 47 (a); NRS 16.040, 16.050.
OPINION
[Headnote 1]
This is a guest-host case (NRS 41.180) in which the jury awarded the guest Grisewood
$34,560 from the host Frame, for damages sustained in a one car accident. The claimed basis
for the host's liability was intoxication, gross negligence and willful misconduct.
1
The host
appeals, assigning five errors. Four of them must be resolved with the facts of the accident
in mind.
____________________

1
The pre-trial order does not specify willful misconduct as an issue. However, the jury was instructed on that
subject, and no objection was made. NRCP 51; Duran v. Mueller, 79 Nev. 453, 386 P.2d 733; Wagon Wheel
Saloon v. Mavrogan, 78 Nev. 126, 369 P.2d 688. Accordingly, it was permissible for the jury to consider willful
misconduct as a predicate for liability.
resolved with the facts of the accident in mind. The fifth claim of error concerns the voir dire
examination of the prospective jurors, and will be considered last.
[Headnote 2]
In most accident cases the evidence is in conflict in material respects. This case is no
exception. Therefore we shall state the facts most favorable to the winner below, for he is
entitled to that advantage on appeal.
Grisewood and Frame were friends. On August 19, 1962, a Sunday, they and Pat Chickese
(now Mrs. Frame) had enjoyed a day's outing at Pyramid Lake drinking beer, playing ball,
water skiing, etc. During the course of the afternoon Grisewood injured his left knee kicking
a football and was inactive thereafter. Frame drank six or seven cans of beer while there and,
before starting home, the three of them stopped at Crosby's Lodge where Frame had two
scotch and sodas, and Grisewood had a drink. They then started for home in Frame's 1957
four-door Oldsmobile. Two of the four tires on that car were bald, and the others had very
little tread. Frame knew this. Grisewood did not. The three friends sat in the front seat, Frame
driving, Pat in the middle, and Grisewood to her right. It was still daylight. The Pyramid Lake
road to Reno was paved and two lanes wide. The weather was good and the pavement dry.
About one mile before the accident scene Frame very quickly passed a car going in the
same direction and driven by George Tomlin. Tomlin's speed was about 65 miles per hour.
Three or four car lengths behind Frame came an Austin-Healey which also passed the Tomlin
car. Tomlin guessed that the Oldsmobile and the Healey were going between 75 and 80 miles
per hour when they passed him, and appeared to be racing as they coursed down the highway
before him, the Austin-Healey to the left side of the road and the Oldsmobile to the right.
Tomlin visually followed them until they rounded a turn about one mile distant. He next
noticed a cloud of dust. As Frame commenced that turn his speed was 100 miles per hour. His
car went out of control and off the right shoulder of the highway. It traveled 645 feet 11
inches in the sand, coursed back onto the road and started rolling.
road and started rolling. It rolled 120 feet before coming to rest upside down 20 to 25 feet
from the right side of the pavement. One tire was flat, possibly two. Three highway markers
had been knocked over by the uncontrollable Oldsmobile. Grisewood did not warn Frame of
danger during the trip.
[Headnotes 3-5]
1. Intoxication Instruction. NRS 41.180 recognizes that a host may be found liable to his
guest for injury proximately resulting from the intoxication of the host. In this case there
was evidence from which the jury permissibly could infer that the accident and Grisewood's
injuries proximately resulted from Frame's intoxication. Hence, the trial court was required to
instruct the jury about intoxication as that word is used in the guest law. Over the objection
of defense counsel, the following instruction was given: The term intoxication,' under the
law that applies to this case, means a condition resulting from the imbibing of alcoholic
liquor wherein a person's normal faculties, either of perception, or of will, or of judgment, are
impaired so that he no longer has the capacity to drive a vehicle with the caution
characteristic of a sober person of ordinary prudence. The giving of that instruction is
assigned as prejudicial error.
The appellant's argument rests upon an analogy drawn from the California criminal case of
People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8. The court there was dealing with a
prosecution for manslaughter under a statute which contained the phrase, driving a vehicle
while under the influence of intoxicating liquor. Because of that phrase the court did draw a
distinction between intoxication or drunkenness and under the influence of intoxicating
liquor, pointing out that one may be under the influence without being intoxicated. Thus, the
theme of the appellant's contention here is that the instruction as given would allow the jury
to fix liability upon the host when merely under the influence, but not intoxicated. We
believe the analogy inapposite when considering intoxication for the purposes of liability
under the Nevada guest law. It seems to us that the aim of the guest statute is to allow
recovery if the host's consumption of alcohol proximately caused injury to {or the death
of) his guest.
that the aim of the guest statute is to allow recovery if the host's consumption of alcohol
proximately caused injury to (or the death of) his guest. The term intoxication is to be
construed with this purpose in mind. The precise degree of inebriation is relatively
unimportant if, in fact, the host's consumption of alcohol was the proximate cause of injury.
Reasonable jurors can make this determination. The legislative emphasis is upon the injury
proximately caused by drink, rather than upon the number of alcoholic drinks ingested. Were
it otherwise, scientific proof of the driver's blood-alcohol content would be required in every
case, before liability could attach. The instruction given in this case serves the legislative
purpose and we approve it as a sensible definition of intoxication under the guest statute.
The tenor of Taylor v. Joyce, 4 Cal.App.2d 612, 41 P.2d 967, and DeArmond v. Turner, 141
Cal.App.2d 574, 297 P.2d 57, though not squarely on point, appears to support us.
[Headnote 6]
2. Failure to Give Duty to Warn Instruction. The host offered an instruction concerning
a guest's duty to warn the host of danger. The trial court refused to give it. That refusal is
assigned as prejudicial error. The host contends that the instruction was relevant to his
defense that the guest was contributorily negligent. On the record in this case the court ruled
correctly. There is no showing that the guest was aware of a danger of which the host was
unaware. This case involves a one car accident on a safe highway. The condition of danger
was the conduct of the host in driving at an excessive speed, in a car having two bald tires
and two with sparse tread, after drinking six or seven beers and two scotch and sodas. These
facts were known to the host and he knew, or should have known, of the danger inherent in
them. This is not the kind of a situation where a duty to warn is imposed upon the guest. A
fortiori, his failure to warn does not bear upon the issue of contributory fault.
[Headnotes 7, 8]
3. The Host's Affirmative Defenses. Next the host contends that his affirmative defenses of
assumed risk and contributory negligence were each established as a matter of law.
and contributory negligence were each established as a matter of law. The contention is not
sound. The defense of assumed risk is based on the theory of consent. The main requisites are
a voluntary exposure to danger and actual knowledge of the risk assumed. Sierra Pacific v.
Anderson, 77 Nev. 68, 358 P.2d 892; Papagni v. Purdue, 74 Nev. 32, 321 P.2d 252. Here
when the guest got into the host's car and started for Reno he did not possess actual
knowledge that two of the tires were bald; that his host was intoxicated; that his host would
race with the Austin-Healey and attempt to negotiate a turn at 100 miles per hour. Of course,
there was much other evidence in the case from which the jury could inferentially have
concluded otherwise. It chose not to do so. Its ruling on this issue, based upon evidence
favorable to the guest, may not be overturned by us.
[Headnote 9]
The same is true as to the issue of the guest's contributory fault. We have already held that
the guest's failure to warn was not, in the circumstances of this case, probative of contributory
negligence. Further, it strikes us that once the trip was commenced, the race with the
Austin-Healey underway, and high speed attained, there was little, if anything, the guest could
do to protect himself, except to sit tight and hope for the best. At that point a choice was not
open to him. In any event, there is absolutely nothing in the record to show that the guest's
action was a proximate or concurring cause of the accident. The fact that he got into the car
did not cause the accident. The fact that he was seated in the front seat did not cause the
accident. His failure to warn his host was immaterial for the reasons already expressed. The
jury was fully justified in concluding that the guest was not chargeable with contributory
fault.
[Headnotes 10, 11]
4. Evidence as to Speed. Over objection, the trial court allowed Mr. and Mrs. Tomlin to
testify about Frame's high speed and apparent racing with the foreign car at a point about one
mile distant from the accident scene. The reception of that testimony is assigned as
prejudicial error, the argument being that Tomlin's observation was at a "remote point"
and not probative of speed or the manner of the host's driving at or near the place of the
accident.
as prejudicial error, the argument being that Tomlin's observation was at a remote point and
not probative of speed or the manner of the host's driving at or near the place of the accident.
The cases are collected at 46 A.L.R.2d 9. In the circumstances here present the lower court
ruled correctly. In answer to the question, What did you observe with regard to the
Oldsmobile and the small sportscar after they passed you?, Mr. Tomlin said, Oh, I observed
they went down the road, and they were side by side, going down the road, until they went
around a curve and went out of sight. Then I didn't see what happened. The first thing I seen
was a big cloud of dust. The continuing observation of Frame's driving to a point
immediately before the accident destroys the significance of the objection of remoteness. Cf.
Patton v. Henrikson, 79 Nev. 197, 380 P.2d 916. The testimony was plainly admissible on the
issues of gross negligence and willful misconduct (Fleming v. Lawson, 240 F.2d 119), and
also as independent proof of speed at the place of the accident (Shepard v. Harris, 329
S.W.2d 1), for it was probable that the speed at which Frame passed Tomlin continued until
the accident occurred. Indeed, other evidence shows this to have been the case.
5. Voir Dire Examination of Jurors. The last assignment of error attacks the preclusionary
ruling of the trial court as to the voir dire examination of prospective jurors. Effective March
16, 1964, NRCP 47(a) provided that the court shall conduct the examination of prospective
jurors and may permit such supplemental examination by counsel as it deems proper. Before
trial, counsel for each side submitted a list of questions to the court and requested that the
court ask them of the prospective jurors. Defense counsel had proposed twelve questions, and
plaintiff's counsel nine. Most of them were not asked, though some were. It is now contended
that, by failing to ask all questions suggested, the defendant's counsel was forbidden
important information which would enable him to intelligently exercise peremptory
challenges. Absent such information, his statutory right to excuse a juror peremptorily is
hollow and without substance or meaning.
[Headnotes 12-14]
First, we must place counsel's contention in focus. He does not assert that his right to
challenge for cause (NRS 16.050) was affected by the court's restrictive ruling. His sole
contention is that he was precluded from developing information that would permit the
intelligent exercise of the four peremptory challenges allowed by NRS 16.040. Of
significance is the fact that the peremptory challenge does not exist as a matter of right, apart
from legislative provision therefor. The legislature may determine the number of peremptory
challenges each side is to have, or whether any shall exist at all. State v. McClear, 11 Nev. 39.
The same is not true of the right to challenge for bias. A legislature cannot abrogate that right.
State v. McClear, supra. It is plain that the peremptory challenge does not enjoy the dignity
accorded the challenge for cause. Thus it is appropriate for the trial court to treat a proposed
voir dire examination designed to develop information for the exercise of a peremptory
challenge differently than a voir dire examination to develop grounds for a challenge for
cause. For review purpose, the test in either instance is whether an abuse of discretion has
occurred.
2
However, because of the inherent distinction between the challenge for cause and
the peremptory challenge, a lower court normally is given considerably more latitude when
dealing with the latter than when concerned with the challenge for cause.
[Headnote 15]
In this case, defense counsel wanted to know whether the prospective jurors used
alcoholic beverages and to what extent; whether they had driven a car after having one or two
drinks; the speed at which they normally drove on an unobstructed highway; when they
replaced a tire because of wear and tear; whether they used recapped tires, etc. The court did
not ask those questions.
We hold that the court did not abuse its discretion in so limiting the voir dire examination.
Our ruling rests upon the fact that the proposed questions were not relevant to any
statutory ground of challenge for cause.
____________________

2
Annotations in this general area are: 72 A.L.R.2d 905; 4 A.L.R.2d 1200; 1 A.L.R. 1688; 158 A.L.R. 1361;
64 A.L.R. 645.
upon the fact that the proposed questions were not relevant to any statutory ground of
challenge for cause. The rejection of such questions seldom will supply an appropriate basis
for appellate court intervention. Were we to hold otherwise and reverse we would have to
presume an unfair and partial jury even though each juror had been passed for cause. We are
confident that the law does not suggest that result.
Affirmed.
Badt, J., concurs.
At conference, following submission of this case, McNamee, C. J., expressed his
agreement that the judgment below be affirmed. However, because of hospitalization, he has
not read nor signed this opinion.
____________
81 Nev. 123, 123 (1965) Beam v. Pioneer Title Ins. & Trust Co.
THOMAS T. BEAM, Appellant, v. PIONEER TITLE INSURANCE AND TRUST
COMPANY, a California Corporation, Qualified to do Business in the State of Nevada,
Respondent.
No. 4810
March 3, 1965 399 P.2d 448
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Action for breach of escrow instruction that plaintiff's deed of trust, which was to be
second to deed of trust securing construction loan, was to be recorded before work was
performed or materials delivered to the property. The lower court gave judgment, and the
plaintiff appealed. The Supreme Court held that the finding that no work was performed and
no materials were furnished between the time of instruction and recording of plaintiff's deed
of trust was justified.
Judgment affirmed.
George E. Franklin, Jr., of Las Vegas, for Appellant.
Dickerson & Miles, of Las Vegas, for Respondent.
Escrows.
In action for breach of escrow instruction that plaintiff's deed of trust, which was to be second to deed of
trust securing construction of loan, was to be recorded before work was performed or materials delivered to
the property, the finding that no work was performed and no materials were furnished between the time of
instruction and the recording of plaintiff's deed of trust was justified.
OPINION
Per Curiam:
In the lower court Beam filed suit against Pioneer Title Insurance and Trust Company to
recover $27,780 plus attorneys fees and costs claimed to be due because of Pioneer's alleged
breach of escrow instructions. It appears that Beam was the beneficiary of a trust deed dated
March 11, 1955, executed by B.N.B. Corporation, as trustor, to Pioneer Title Insurance and
Trust Company, trustee, to secure an indebtedness of $27,780. On June 13, 1955, Beam and
American Fidelity Fire Insurance Company executed a subordination agreement which
provided that the lien of Beam's deed of trust of March 11, 1955, would be subordinated to
the lien of a deed of trust dated June 6, 1955, made by B.N.B. Corp., trustor, to Pioneer Title
Insurance and Trust Company, trustee, in favor of American Fidelity Fire Insurance
Company, beneficiary, to secure a construction loan indebtedness of $255,000. Before
executing the subordination agreement with American Fidelity, Beam had instructed Pioneer
Title on April 11, 1955, that his deed of trust of March 11, 1955, shall be recorded second
only to the deed of trust securing the construction loan, and shall be recorded before work is
performed or materials delivered on the property. The subordination agreement was recorded
June 16, 1955, followed one minute later by the recordation of the construction loan deed of
trust. Beam's claim for relief rests solely upon his charge that between April 11, 1955 (the
date he instructed Pioneer Title) and June 16, 1955 (the date of recording the subordination
agreement and the construction loan deed of trust) work was performed upon and materials
were furnished to the property in question.
furnished to the property in question. Thus, Pioneer's breach is claimed to be its failure to
record before the performance of work or the delivery of materials giving rise to lien claims.
1
Whether, in fact, work was performed or materials delivered during the mentioned period was
one of the factual issues presented to the trial court for resolution. That court found that
there was no evidence of any work or labor done on the premises of a current or recent
nature, and if any such work or labor was done on said premises prior to June 16, 1955, the
same was done either one, two or three years prior to said date. For the purposes of this
opinion it is sufficient to state that the finding was justified. Cf. Valley View Distributors of
Nevada, Inc. v. United States Rubber Co., 81 Nev. 91, 398 P.2d 993.
Affirmed.
At conference, following submission of this case, McNamee, C. J., expressed his
agreement that the judgment below be affirmed. However, because of hospitalization, he has
not read nor signed this opinion.
____________________

1
Many affirmative defenses of substance were pleaded by Pioneer. Because of our resolution of this appeal
we deem it unnecessary to mention them.
____________
81 Nev. 125, 125 (1965) National Life and Casualty Ins. Co. v. Hammel
NATIONAL LIFE AND CASUALTY INSURANCE COMPANY, Appellant, v. PAUL A.
HAMMEL, Insurance Commissioner of the State of Nevada, Respondent.
No. 4815
March 3, 1965 399 P.2d 446
Appeal from judgment of the First Judicial District Court, Ormsby County; Grant L.
Bowen, Judge.
Proceeding involving revocation of license of insurance company to do business in
Nevada. The commissioner of insurance revoked the license and the lower court sustained
the revocation order.
court sustained the revocation order. Insurance company appealed. The Supreme Court,
Thompson, J., held that revocation of license was arbitrary and capricious under statutes
authorizing revocation if company has violated insurance law, and authorizing fine for
director who subscribes to, makes, or concurs in making or publishing statement known to
contain material, false statement, where insurance company included a certain transaction in
its 1962 financial statement on basis of advice of Arizona insurance department but Nevada
chose not to approve inclusion thereof.
Judgment reversed.
[Rehearing denied March 19, 1965]
Lewis, Roca, Scoville, Beauchamp & Linton and John P. Frank, of Phoenix, Arizona;
Alex. A. Garroway, of Reno, for Appellant.
Harvey Dickerson, Attorney General, Carson City, and D. W. Priest, Chief Deputy
Attorney General, for Respondent.
1. Corporations.
Statute authorizing punishment by fine up to $5,000 of director, officer, agent, or employee who
subscribes to, makes, or concurs in making or publishing annual or other statement which is required by
law and is known to contain material, false statement does not authorize penalty for mere error. NRS
686.100, subd. 2.
2. Corporations.
False within statute authorizing punishment by fine up to $5,000 of director who subscribes to, makes,
or concurs in making or publishing annual or other statement known to contain any material, false
statement has moral overtones. NRS 686.100, subd. 2.
3. Corporations.
Suspicion is not enough but clear and convincing proof is required for punishment under statue
authorizing fine up to $5,000 of director who subscribes to, makes, or concurs in making or publishing
statement known to contain material false statement. NRS 686.100, subd. 2.
4. Insurance.
Revocation of license of insurance company to do business in Nevada was arbitrary and capricious under
statutes authorizing revocation if company has violated insurance law and authorizing fine of director who
subscribe to, makes, or concurs in making or publishing statement known to contain
material, false statement, where insurance company included a certain transaction in
its 1962 financial statement on basis of advice of Arizona insurance department but
Nevada chose not to approve inclusion thereof.
in making or publishing statement known to contain material, false statement, where insurance company
included a certain transaction in its 1962 financial statement on basis of advice of Arizona insurance
department but Nevada chose not to approve inclusion thereof. NRS 686.090, subd. 1, 686.100, subd. 2.
OPINION
The Nevada Insurance Commissioner found that National Life and Casualty Insurance
Company had violated an insurance law of this state, and revoked its license to do business in
Nevada. NRS 683.090(1).
1
National had filed with the Commissioner its annual financial
statement for the year ending December 31, 1962. The statement contained an entry which
was not precisely correct. Because of the inaccuracy (to be hereinafter discussed) the
Commissioner considered the statement to have been filed knowing the same to contain a
material statement which is false in violation of NRS 686.100 (2) and, accordingly, ordered
revocation. The district court, reviewing the information presented to the Commissioner
(Urban Renewal Agency v. Iacometti, 79 Nev. 113, 379 P.2d 466) found that the
Commissioner had acted within the permissible limits of his discretion, and sustained the
revocation order. National appeals. We have concluded that on the record presented to the
Insurance Commissioner no reasonable basis exists for finding that National violated the
intendment of NRS 686.100(2).
2
Therefore we annul his license revocation order as having
been arbitrarily and capriciously made. We turn briefly to the relevant facts.
____________________

1
NRS 683.030(1) reads: 1. The commissioner may revoke or suspend the license of a foreign or alien
company or in lieu thereof may impose a fine not to exceed $2,000 whenever he shall find that such company
* * * (e) Has violated any insurance law of this state or has in this state violated its charter or exceeded its
corporate powers.

2
NRS 686.100(2) reads: Any director, officer, agent or employee of any company who subscribes to, makes,
or concurs in making or publishing, any annual or other statement required by law, knowing the same to contain
any material statement which is false, shall be punished by a fine of not more than $5,000.
National Life and Casualty Insurance Company is an Arizona corporation licensed to do
business in Arizona, Utah, Nevada, Colorado, New Mexico and Texas. During 1962 National
and a Utah company New Hemisphere Life Insurance Company were negotiating a treaty of
bulk insurance for the reinsurance and assumption of the assets and liabilities of New
Hemisphere which totaled $885,208.95. By the treaty New Hemisphere ceded to National as
of 12:00 noon Monday, December 31, 1962 all its interest in its policies and reserves, and
these were accepted and assumed by National. New Hemisphere was to keep all premiums
received by it prior to 12:00 noon on December 31, 1962. As all necessary steps to place the
treaty in operation could not be taken until sometime after December 31, 1962, it was
provided that when those steps were completed the treaty would be retroactively effective as
of December 31, 1962. National bound itself to the treaty in 1962, and the Board of Directors
of New Hemisphere approved it on December 27, 1962 and again on January 25, 1963.
However, approval of the stockholders of New Hemisphere and of the Commissioner of
Insurance of the State of Utah was required before the treaty could be fully effectuated. The
stockholders' approving vote was secured April 30, 1963, and on August 12, 1963, the Utah
Commissioner's approval was obtained.
Nevada law, NRS 686.090, required National to file its financial statement for the year
ending 1962 with the Insurance Commissioner by March 1, 1963. The pending transaction
with New Hemisphere created a reporting problem for National. The transaction was on the
verge of closing and, upon closing, was to be retroactive to December 31, 1962. Query:
Should the transaction be reflected in its 1962 financial statement? Not knowing the best way
to proceed, National inquired of the Senior Examiner of the Insurance Department of the
State of Arizona (the state of its incorporation and the principal place of its business) and was
advised to reflect the pending transaction in the 1962 annual statement to be filed with the
insurance department of that state. Accordingly, National did so, and apparently assumed
that the same reporting method would be acceptable to the insurance commissioners of
Utah and Nevada.
assumed that the same reporting method would be acceptable to the insurance commissioners
of Utah and Nevada. Thus it is that the financial statement for the year ending 1962 shows,
inter alia, the sum of $885,208.95 as admitted assets to equal policy holders reserves and
claims, liability for expenses, etc. assumed from New Hemisphere Insurance Company as of
Dec. 31, 1962, and the same amount as liability in assumption of policy holders reserves,
claims, expenses and undistributed funds from New Hemisphere Insurance Company.
However, as the transaction had not in fact been finalized when National filed its financial
statements with Utah and Nevada, those states, contrary to Arizona, chose not to approve its
inclusion as an appropriate item. Utah ordered a revised statement. Nevada initiated the
instant proceeding. It is within this context that we must determine, as a matter of law,
whether the intendment of NRS 686.100 (2) was breached by National.
[Headnotes 1-3]
The statute authorizes punishment, by fine up to $5,000, of a director, officer, agent or
employee of a company who subscribes to, makes or concurs in making or publishing, any
annual or other statement required by law, knowing the same to contain any material
statement which is false. It is clear that the statute does not authorize penalty for mere error.
Had the legislature intended to reach error rather than a material false statement knowingly
made, different language would have been used. The word false has moral overtones.
Federal court decisions dealing with the same question under the Bankruptcy Act point up
this fact. A financial statement which is merely erroneous, with no intent to deceive, is not a
false statement within the meaning of the Bankruptcy Statute. Feldenstein v. Radio
Distributing Co., 6 Cir., 323 F.2d 892; Third National Bank v. Schatten, 6 Cir., 81 F.2d 538;
Schapiro v. Tweedie Foot Wear Corp., 3 Cir., 131 F.2d 876; Annot., 59 A.L.R.2d 791. Clear
and convincing proof is required. A suspicion is not enough. We hold that the same rationale
governs NRS 6S6.100 {2).
rationale governs NRS 686.100 (2). Before a statement may be deemed false within the
intendment of that statute, clear and convincing evidence of an intent to deceive must be
produced. To rule otherwise would exalt form over substance.
[Headnote 4]
With these principles in mind, it is plain that NRS 686.100(2) does not touch the case
before us. The record before the Commissioner supplies nothing from which a reasonable
mind may infer intentional deceit by National or its authorized agents in preparing and filing
the statement in question. All of the evidence is the other way. National sought advice from
the Arizona Insurance Department and followed it in good faith. The almost, but not quite,
completed transaction with New Hemisphere accordingly was reflected in its 1962 financial
statements filed in Arizona, Utah and Nevada. That is all there is to the tale disclosed by this
record.
Of course, hindsight shows National's true mistakeits assumption that Utah and Nevada,
for reporting purposes, would treat the New Hemisphere transaction as Arizona required it to
be treated. That mistake has nothing whatever to do with NRS 686.100(2). We find it
unnecessary to discuss the other assigned errors.
Reversed.
Badt, J., and Zenoff, D. J., concur.
McNamee, C. J., being absent on account of illness, the Governor commissioned
Honorable David Zenoff to sit in his place.
____________
81 Nev. 131, 131 (1965) State ex rel. Friedman v. District Court
THE STATE OF NEVADA on the Relation of MAURICE H. FRIEDMAN, Relator, v. THE
EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the County of
Clark, and the HONORABLE JOHN MOWBRAY, Judge of Department 3 Thereof,
Respondents.
No. 4884
March 8, 1965 399 P.2d 632
Original proceedings on application for writ of certiorari or, alternatively, for writ of
prohibition.
Proceeding to have declared void a temporary restraining order issued by district court as
having been entered in excess of that court's jurisdiction or, in alternative, prohibition to stop
further possible proceedings based on that order. The Supreme Court, Thompson, J., held that
temporary restraining order not conditioned upon giving of security or specifying reasons for
its issuance was void, and that amended restraining order not accompanied by motion for
preliminary injunction or separate showing to authorize its entry without notice was void.
Granted.
Lionel & Gunderson and Jerome Snyder, and Coulthard & Smith, of Las Vegas, and
Joseph A. Ball, of Long Beach, California, for Realtor.
Jones, Wiener and Jones of Las Vegas, and Frank C. Aldrich, of Long Beach, California,
for Respondents.
1. Injunction.
Temporary restraining order not conditioned upon giving of security or specifying reasons for its issuance
was void. NRCP 65(c, d).
2. Injunction.
It is permissible to obtain temporary restraining order without notice if conditions therefor are met by
showing of affidavit or verified complaint that immediate and irreparable injury, loss or damage will result
to applicant before notice can be served and hearing had thereon. NRCP 65(c); NCL 1929, 8696.
3. Injunction.
Motion for preliminary injunction shall accompany application for restraining order if latter is issued ex
parte. NRCP 65(c); NCL 1929, 8696.
4. Injunction.
Amended restraining order purporting to cure fatal defects of original, but not accompanied by motion for
preliminary injunction or separate showing to authorize its entry without notice, was void. NRCP 65 (c);
NCL 1929, 8696.
OPINION
This is an original proceeding for a writ of certiorari or, in the alternative, prohibition:
certiorari to declare void a temporary restraining order issued by the district court as having
been entered in excess of that court's jurisdiction; and prohibition to stop further possible
proceedings based on that temporary restraining order. We have concluded that the relief
sought should be granted.
[Headnote 1]
On February 26, 1965, the lower court having jurisdiction of the subject matter and the
parties in Case No. 116623 entitled, Stanley S. Leeds, Plaintiff, vs. Maurice H. Friedman,
Irving J. Leff, B. Frank Williams, individually and jointly as joint adventurers, Hotel Last
Frontier Corporation, a Nevada corporation, et al., after notice and hearing, issued a
temporary restraining order which purported to restrain the defendants and each of them from
proceeding with the trial of a California action brought by Friedman, et al., against Leeds
(Case No. 826676-Superior Court, Los Angeles County). The temporary restraining order was
not conditioned upon the giving of security (NRCP 65(c)), nor did the order specify the
reasons for its issuance (NRCP 65(d)).
1
Because of these defects, Friedman on March 2,
1965, filed the instant proceeding with this court, contending that the temporary
restraining order was, and is, absolutely void.
____________________

1
NRCP 65(c) reads, No restraining order or preliminary injunction shall issue except upon the giving of
security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as
may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such
security shall be required of the State or of an officer or agency thereof. * * *.
NRCP 65(d) reads, Every order granting an injunction and every restraining order shall set forth the reasons
for its issuance;
March 2, 1965, filed the instant proceeding with this court, contending that the temporary
restraining order was, and is, absolutely void. Nevada authority sustains his position. Shelton
v. District Court, 64 Nev. 487, 185 P.2d 320, decided under NCL 8696, and holding that
where a bond is required by statute before the issuance of an injunction, it must be exacted
or the order will be absolutely void.; Culinary Workers v. Court, 66 Nev. 166, 207 P.2d 990,
also under NCL 8696. Though the Shelton and Culinary Workers cases were decided with
reference to NCL 8696, we believe them equally applicable to a proceeding for a temporary
restraining order under NRCP 65 (c).
2

[Headnotes 2-4]
One day before our scheduled hearing of this matter, Leeds, the plaintiff below who had
secured the void temporary restraining order, obtained, ex parte, an amended restraining
order, requiring a $1,000 bond, and setting forth in detail the reasons for its issuance. He
therefore contends that the fatal defects of the original restraining order no longer exist, and
that the issues raised by the instant proceeding are rendered moot by reason of the amended
restraining order.
____________________
shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other
document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers,
agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them
who receive actual notice of the order by personal service or otherwise.

2
NCL 8696 reads, On granting an injunction, or a restraining order, the court or judge must require, except
when the state, a county, or municipal corporation, or a married woman in a suit against her husband, is a party
plaintiff, a written undertaking on the part of the plaintiff, with sufficient sureties, to the effect that the plaintiff
will pay to the party enjoined such damages, not exceeding an amount specified, as such party may sustain by
reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto. * * *
NRCP 65(c) reads, No restraining order or preliminary injunction shall issue except upon the giving of
security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as
may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such
security shall be required of the State or of an officer or agency thereof. * * *
moot by reason of the amended restraining order. We do not agree. Cf. Culinary Workers v.
Court, 66 Nev. 166, 207 P.2d 990, where, inter alia, the court stated, The law requires that
the bond be filed before the order is made, and the fact that the bond was procured about the
time the order was issued and was later filed under a nunc pro tunc order does not cure the
defect.
3
It is, of course, permissible to obtain a temporary restraining order without notice
under NRCP 65 if the conditions therefor are met. There must be a showing by affidavit or
verified complaint that immediate and irreparable injury, loss or damage will result to the
applicant before notice can be served and a hearing had thereon, and in addition, the rule
contemplates that a motion for a preliminary injunction shall accompany the application for a
restraining order if the latter is issued ex parte. The circumstances under which the amended
restraining order was issued, do not meet the mandate of the rule. It was not accompanied by
a motion for a preliminary injunction, nor was there a separate showing to authorize its entry
without notice. A restraining order, which is absolutely void, does not become legally
effective by simply securing an amended order, ex parte, which purports to cure the fatal
defects of the original.
4
Accordingly, the temporary restraining order of February 26, 1965,
and the amended restraining order of March 4, 1965, must be vacated. It is so ordered.
Badt, J., concurs.
This matter was heard by two justices only, due to the hospitalization of Chief Justice
McNamee.
____________________

3
If the amended restraining order was intended to be a nunc pro tunc order, it was not authorized, for a nunc
pro tunc order may not be used to supply omitted action. Finley v. Finley, 65 Nev. 113, 189 P.2d 334.

4
Labbit v. Bunston, 80 Mont. 293, 260 P. 727 (1927): Nottebaum v. Leckie, 3 Cir., 31 F.2d 556.
____________
81 Nev. 135, 135 (1965) Nevada Food King v. Reno Press Brick
NEVADA FOOD KING, INC., a Nevada Corporation, Appellant, v. RENO PRESS BRICK
COMPANY, a Nevada Corporation, Respondent.
No. 4829
March 24, 1965 400 P.2d 140
Bowen, Judge.
Action for declaratory judgment. The lower court granted summary judgment to the
plaintiff, and the defendant appealed. The Supreme Court, Thompson, J., held that a
restrictive covenant in lease that landlord would not operate retail grocery or meat market in
described area and would not lease any property owned by it in that area for operation of
retail grocery or meat market did not prevent landlord from developing a shopping center,
including a food supermarket, on landlord's property adjacent to the area and from
establishing for the shopping center a parking lot within the area.
Judgment affirmed.
Bible, McDonald & Carano, of Reno, for Appellant.
Hawkins, Rhodes & Hawkins, of Reno, for Respondent.
1. Declaratory Judgment.
Even though landlord's complaint for declaratory judgment that restrictive covenant in lease did not
prevent landlord from developing shopping center, including food market, on its property adjacent to area
designated in lease to be free from retail grocery or meat market did not request declaratory relief that
landlord could provide for the shopping center a parking lot within the area, the trial court properly decided
the parking matter, where pleadings presented question of effect to be given the restrictive covenant.
NRCP 54(c).
2. Landlord and Tenant.
A restrictive covenant in lease, being in restraint of trade, is to be strictly construed.
The maxim, expressio unius est exclusio alterius, (the expression of one thing excludes others) is applied
in construction of restrictive covenant in lease.
A restrictive covenant in lease that landlord would not operate retail grocery or meat market in described
area and would not lease any property owned by it in that area for operation of retail
grocery or meat market did not prevent landlord from developing a shopping center,
including a food supermarket, on landlord's property adjacent to the area and from
establishing for the shopping center a parking lot within the area.
would not lease any property owned by it in that area for operation of retail grocery or meat market did not
prevent landlord from developing a shopping center, including a food supermarket, on landlord's property
adjacent to the area and from establishing for the shopping center a parking lot within the area.
OPINION
[Headnote 1]
This case involves the scope of a restrictive covenant in a lease between Reno Press Brick
Co., lessor, and Nevada Food King, Inc., lessee. The covenant provides: 4-e. Exclusive use.
Lessor shall not lease any property owned by it in that general vicinity for operation of a retail
grocery, or meat market, nor shall itself operate the same. The general vicinity shall be
defined as any area lying north of West Fourth Street, west of Keystone Avenue, east of the
present lessor's office, and south of the Orr Ditch. The lessor, wishing to develop a shopping
center, including a food supermarket, on property owned by it and adjacent to the area
referred to in paragraph 4-e as the general vicinity, sought a declaratory judgment that it
was not prohibited from doing so. The lessor also requested the court to declare that the
proposed shopping center development could be provided with access through, and parking
upon, property within the general vicinity area as delineated by paragraph 4-e.
1
After the
lessee answered the lessor's complaint for declaratory relief, relevant depositions were taken.
Those depositions, together with affidavits, photographs and maps, supplied the supporting
material for the respective motions of lessor and lessee for summary judgment. The lower
court granted summary judgment to the lessor. It ruled that plaintiff is under no obligation to
defendant to refrain from leasing property owned by it for operation of a retail grocery or
meat market, providing the property so leased is located west of a line drawn from the
west side of the Reno Press Brick Co. office building, to the intersection of the westerly
boundary of the Reno Press Brick Co.
____________________

1
Declaratory relief as to access and parking was not specifically requested in the prayer of lessor's complaint.
However, the pleadings did present the question of the effect to be given the restrictive covenant. The court,
therefore, properly decided the access and parking issue. NRCP 54 (c).
meat market, providing the property so leased is located west of a line drawn from the west
side of the Reno Press Brick Co. office building, to the intersection of the westerly boundary
of the Reno Press Brick Co. property with the Orr Ditch, Reno, Nevada; nor is plaintiff under
any obligation to defendant to refrain from permitting access across, or parking upon, any
portion of its property, wherever located, except the parcel leased to the defendant. The
lessee appeals. We affirm.
The property leased to Nevada Food King is at the northwest corner of the intersection of
West Fourth Street and Keystone Avenue. It is rectangular in shape and extends 200 feet
along Fourth Street and 300 feet north along Keystone Avenue and provides parking for the
customers of Nevada Food King. The area described in paragraph 4-e of the lease as the
general vicinity area is a much greater area than that under lease to Nevada Food King.
Indeed, some of it is under lease to other tenants. In addition to the general vicinity area,
Reno Press Brick Co. owns other adjacent property as shown in the following drawing.
See Book [Headnotes 2-4]
[Headnotes 2-4]
Of course, Nevada Food King is fearful that its business will be detrimentally affected if a
competitor is permitted to do business on adjacent property of the lessor. Though conceding
that the proposed supermarket will not be located within the area prohibited by the restrictive
covenant, it nevertheless asserts that the underlying purpose of that covenant is frustrated by
the lower court's ruling. Furthermore, the lessee contends that access through, and parking
within, the area described by the restrictive covenant (which access and parking will serve not
only the proposed supermarket but also other tenants of the shopping center complex), is in
flat contradiction of the underlying purpose sought to be served by the covenant. The lessee's
argument does not persuade us. The restrictive covenant does not attempt to preclude the
leasing of land for a supermarket, outside of the described boundaries, nor does it restrict
access thereto or parking therefor. The sole restriction is that Lessor shall not lease any
property owned by it in that general vicinity for operation of a retail grocery, or meat market,
nor shall itself operate the same. The covenant is silent as to parking, nor does it impose any
additional restriction upon the right of the lessor to use and develop its own property (not
under lease to Nevada Food King, but within the area called the general vicinity) as it
determines. We cannot write a new lease for the parties to accommodate the lessee, nor will
we depart from the well established rule that a restrictive covenant, being in restraint of trade,
is to be strictly construed. Keyes v. Carrick, 268 S.W.2d 397; Fraser Pharmacy Corp. v. Sular
Realty Corp., 211 N.Y.S.2d 666; Bookman v. Cavalier Court, 93 S.E.2d 318; Weinberg v.
Edelstein, 110 N.Y.S.2d 806; Norwood Shopping Center, Inc. v. MKR Corp., 135 So.2d 448;
51 C.J.S., p. 866; 14 Am.Jur., p. 621; 30 Cal.Jur.2d, pp. 51-52; Fenton v. Crook, 102 A. 834,
106 A. 891.
As noted, paragraph 4-e makes no reference to parking or access within the general
vicinity area. The preclusionary language is clear and specific. The Lessor shall not lease
any property owned by it within the general vicinity area "for operation of a retail grocery,
or meat market, nor shall itself operate the same."
general vicinity area for operation of a retail grocery, or meat market, nor shall itself operate
the same. The maxim, expressio unius est exclusio alterius,the expression of one thing
excludes othersapplies. Flyge v. Flynn, 63 Nev. 201, 243, 166 P.2d 539. The lessor may
develop its own property in the general vicinity area as it wishes, so long as it does not
operate a retail grocery or meat market therein, or permit another lessee to do so. Provision
for parking and access is not prohibited. Food Fair Stores v. Kline, 152 A.2d 661; Loblaw v.
Warren Plaza Inc., 127 N.E.2d 754; Sav-on Gas Stations v. Shell Oil Co., 309 F.2d 306,
relied upon by appellant-lessee, does not suggest a contrary view.
Relying upon Carter v. Adler, 291 P.2d 111, the lessee contends that, as the lease provides
for the payment to lessor of a percentage of gross receipts in addition to a minimum monthly
rent, a competitive business on adjacent property of the lessor is automatically forbidden.
Good faith and fair dealing dictate that the lessor encourage the lessee's business so that both
will realize a greater return. The Carter case is inapposite. There the provision was that either
party could terminate the lease should the gross sales be less than $50,000 per month for two
consecutive monthsa forfeiture clause. The evidence suggested that the lessor intended to
divert his tenant's business to a competitor in the same vicinity for the sole purpose of
reducing the amount of the lessee's gross sales, thereby affording a basis for cancellation of
the lease. The lease before us does not contain such a forfeiture clause. This fact alone
destroys the value of Carter as authority here.
We conclude that the lower court was compelled by law to rule as it did. Affirmed.
Because of the disability of Chief Justice McNamee, Judge David Zenoff of the Eighth
Judicial District Court was commissioned to sit in his place.
____________
81 Nev. 140, 140 (1965) Tomiyasu v. Golden
BILL YONEMA TOMIYASU, KIYO TOMIYASU, and UWAMIE TOMIYASU,
Appellants, v. RICHARD GOLDEN and AUDREY Y. GOLDEN, Husband and Wife,
Respondents.
No. 4819
March 30, 1965 400 P.2d 415
Appeal from the Eighth Judicial District Court, Clark County; Taylor H. Wines, Judge.
Action to set aside foreclosure sale. The lower court granted summary judgment for
defendants and plaintiffs appealed. The Supreme Court, Badt, J., held that decision adverse to
owners who sued to set aside foreclosure sale on ground that trustee under deed of trust had
fraudulently colluded with purchasers to let them purchase property at inadequate price was
res judicata as to the second proceeding brought by owners seeking same relief, adding six
more defendants, who allegedly participated in the fraud, and asserting aggravation of the
fraud by alleging additional facts.
Affirmed.
[Rehearing denied April 28, 1965]
Gabrielli, D. J., dissented.
Harry E. Claiborne, of Las Vegas, for Appellants.
Babcock & Sutton, of Las Vegas, for Respondents.
1. Judgment.
In determining whether second action is barred by res judicata, whether facts are identical in both actions
and whether those facts show only one right of plaintiff and one wrong by defendant involving that right
will be considered.
2. Judgment.
Decision adverse to owners who sued to set aside foreclosure sale on ground that trustee under deed of
trust had fraudulently colluded with purchasers to let them purchase property at inadequate price was res
judicata as to the second proceeding brought by owners seeking same relief, adding six more defendants,
who allegedly participated in the fraud, and asserting aggravation of the fraud by alleging additional facts.
OPINION
In 1959 appellants executed a second deed of trust to Nevada Title Company to secure the
payment of $13,564 to certain persons who then assigned the note and deed of trust to
The First National Bank.
to certain persons who then assigned the note and deed of trust to The First National Bank.
Such deed of trust was subject and subordinate to a first deed of trust in the sum of
$38,968.29. Appellants being in default of required payments under the second deed of trust,
The First National Bank, beneficiary, instructed the trustee to proceed to sell the property
under the powers of the second deed of trust. At the public sale, held pursuant to the required
notice, the respondent Goldens bid in the property for $18,025.73. The actual amount owing
The First National Bank at that time was $18,024.73.
Appellants filed action in the lower court to set aside the foreclosure sale and to cancel and
annul the deed executed pursuant thereto. Respondents answered with general denials, and
also pleaded as a special defense judgment in their favor in a prior action and alleged that
such prior judgment was res judicata to the second action. The trial court granted a motion for
summary judgment in favor of the Goldens, and the Tomiyasus appealed. No other persons
are parties to the present appeal.
This matter was before this court in Golden v. Tomiyasu, 79 Nev. 503, 387 P.2d 989,
decided December 23, 1963. In that action we reversed the judgment of the trial court which
set aside the foreclosure sale. The purport of our opinion there was simply that mere
inadequacy of price without proof of some element of fraud, unfairness, or oppression that
could account for and bring about the inadequacy of price was not sufficient to warrant the
setting aside of the trustee's sale on foreclosure of a deed of trust. The Goldens and the
Tomiyasus on this appeal are represented by the same counsel that represented them in the
former appeal.
In the former case Nanyu Tomiyasu had been an additional party to the three Tomiyasus
who are the plaintiffs and appellants here.
The Goldens were the sole defendants and the successful appellants in the first suit.
In addition to the two Goldens, the following were defendants in the present case in the
court below: Nevada Title Company, United Mortgage Company, Lester H.
Lester H. Berkson, Hector J. St. Pierre, Merle P. Adams, David P. Boyer, and sundry
fictitious defendants.
Appellants assign as error (1) the granting of the summary judgment because the defense
of res judicata does not apply, as the present complaint involves a different cause of action
than was sued on and litigated in the former suit; (2) that the bar of res judicata does not
apply to the present complaint because of lack of identity of parties; (3) because there are
genuine issues of material fact to be determined, including the issues as to the scope and
coverage of the former case; (4) because respondents are estopped from raising the bar of res
judicata. In these assertions appellants clarify their position by arguing that the cause of
action in the first case was in equity to set aside a foreclosure sale because of irregularities in
that sale and was not based upon fraud, while the complaint in the second action is for
damages based entirely upon fraud. They assert that under such circumstances res judicata
cannot exist by reason of numerous decisions of this court, particularly Bond v. Thruston, 60
Nev. 19, 98 P.2d 343, 100 P.2d 74; Casey v. Musgrave, 72 Nev. 31, 292 P.2d 1066; Reno
Club, Inc. v. Harrah, 70 Nev. 125, 260 P.2d 304, and other cases.
In Bankers Trust Co. v. Pacific Employers Ins. Co., 282 F.2d 106, the United States
Circuit Court of Appeals for the Ninth Circuit had occasion to consider the Nevada cases
involving the plea of res judicata. Curiously enough, the opinion was written by Judge Orr,
formerly a chief justice of this court, and concurred in by Judge Merrill, likewise a former
chief justice of this court, and the author of the opinion in Reno Club, Inc. v. Harrah, 70 Nev.
125, 260 P.2d 304, and of the opinion in Casey v. Musgrave, supra. Appellants do not
question the general rule as there stated:
A judgment on the merits by a proper court operates as a bar not only as to every matter
offered and received to sustain or defeat the claim, but as to every other matter which might,
with propriety, have been litigated and determined in that action. Wolford v. Wolford, 1948,
65 Nev. 710, 200 P.2d 988. However, res judicata requires identical causes of action.
identical causes of action. Reno Club Inc. v. Harrah, 1953, 70 Nev. 125, 260 P.2d 304;
Weisheyer v. Weisheyer, 1932, 54 Nev. 76, 6 P.2d 439; Silverman v. Silverman, 1930, 52
Nev. 152, 283 P. 593; Smith v. Gray, 1926, 50 Nev. 56, 250 P. 369. The test of a cause of
action for res judicata purposes is the identity of facts essential to maintaining the two suits; if
the facts show only one right of the plaintiff and one wrong by the defendant involving that
right, there is only one cause of action. The narrow bounds within which the Nevada Supreme
Court has applied the doctrine of res judicata appear in Casey v. Musgrave, 1956, 72 Nev. 31,
292 P.2d 1066.
[Headnote 1]
Appellants contend that under Casey v. Musgrave, supra, it is clear that res judicata could
not apply, as their first cause of action was in equity and their second cause of action was for
damages based on fraud. We think there is no analogy between the two cases. Musgrave lost
his first suit against Casey because he could not prove a partnership or a joint venture as
alleged. His second suit was for the recovery of the value of his services rendered to the
defendant. This case simply indicates that this court will not only consider whether the facts
are identical in both actions, but also whether these facts show only one right of the plaintiff
and one wrong by the defendant involving that right.
An examination of the pleadings in the two actions involved here casts light upon the
situation.
The allegations of the complaint in the first suit were that the foreclosure sale was
fraudulent, wrongful, illegal, void and unconscionable; the appellants alleged (1) a number
of procedural irregularities, including a defective notice of sale, defective pronouncements of
postponements of the sale, and the manner in which such sale was conducted, (2) a grossly
inadequate price secured, and (3) that the officers of the Nevada Title Insurance Company
and the Goldens conspired and confederated together to sell said land at a grossly inadequate
price * * * and knowing full well that there would be no public bidders present * * * and that
there would be no competition in bidding, solicited the Goldens to be present and bid the
exact amount due and owing on said obligation, which the Goldens did," and knowing
that the value of the property was in excess of $200,000, "did give further aid, comfort
and assistance to said conspiracy."
present and bid the exact amount due and owing on said obligation, which the Goldens did,
and knowing that the value of the property was in excess of $200,000, did give further aid,
comfort and assistance to said conspiracy.
Appellants quote our language in Golden v. Tomiyasu, appearing at 79 Nev. 513, 387 P.2d
at 994, reciting: In the present case counsel for respondents, in oral argument, stated that he
did not claim fraud or conspiracy but only collusion between the trustee and the high bidder.
This did not exist. (Emphasis supplied.)
We quoted Schroeder v. Young, 161 U.S. 334, 16 S.Ct. 512, 40 L.Ed. 721, referring to
mere inadequacy of price as being insufficient in itself to justify setting aside a judicial sale
but that it may be set aside if one of a number of conditions exist, one being if the sale has
been collusively, or in any other manner, conducted for the benefit of the purchaser. Finally,
we held: Nothing in the case warrants a conclusion of collusion to defraud the Tomiyasus.
79 Nev. at 517, 387 P.2d at 996. Webster defines collusion as 1. A secret agreement and
cooperation for a fraudulent or deceitful purpose; deceit; fraud. 2. Law. An agreement
between two or more persons to defraud a person of his rights by the forms of law, or to
obtain an object forbidden by law.
We are then asked to distinguish the present action as one for damages growing out of
fraud from the first action which was simply one to set aside a foreclosure sale because of
irregularities. In effect plaintiffs are saying that in the first suit they alleged only once that the
foreclosure sale was fraudulent, wrongful, illegal, void, and unconscionable, and that the
Goldens and the Nevada Title Insurance Company conspired and confederated together to sell
the land at a grossly inadequate price and that the trustee gave further aid and comfort and
assistance to the conspiracy, and that the court below held only that the actions of the trustee
in advising the successful bidders and by reason of their conduct and relationship with the
bidders were such as to indicate a breach of the trustee's duty. As against this, appellants
apparently feel that because in the present complaint they have alleged fraud, conspiracy,
unlawful combination, fraud, fraudulent acts, and similar terms, some 40-odd times in
their complaint, they have alleged such a tremendous fraud as did not appear in their first
complaint.
complaint they have alleged fraud, conspiracy, unlawful combination, fraud, fraudulent acts,
and similar terms, some 40-odd times in their complaint, they have alleged such a tremendous
fraud as did not appear in their first complaint. We are asked, as it were, to distinguish the
present action from the first one because, if we place in the scales the allegations of fraud in
the second complaint as against the allegations of fraud in the first complaint, the second one
greatly outweighs the first. We cannot avoid the conclusion that in both actions fraud was the
basis of the relief sought. As noted above, this court's holding in the first case was that
nothing in the case warrants a conclusion of collusion to defraud the Tomiyasus. This
included the allegation of the trustee's breach of its trust.
If we turn to the facts we find the same result. In the second case below the plaintiffs had
secured a temporary restraining order and a temporary amended restraining order restraining
interference by the defendants with the plaintiffs' possession of the property. In its ruling on
the motion of defendants Golden to dissolve the amended temporary restraining order, the
court reviewed the history of the first case and of the posture of the second case then before it,
and said:
There is no gainsaying that the Defendants Golden have now twice been charged with
conspiracy, the first time with having conspired with the trustee and here with several other
persons, including that trustee. The issue then is this. Are the Causes of Action identical, in
the sense that the same evidence supports both the present and the former Cause of Action?'
Vindication becomes a Sisyphean task if by adding conspirators the Cause of Action loses its
identity when in fact the Goldens' role in the conspiracy is no wise altered in this second
Complaint.
We are entirely in accord, and are in accord with its further conclusion: The conclusion
here is that the Cause of Action against the Defendants Golden, and [them] only, has once
been litigated and the bar of res judicata obtains.
The facts relied on in the first case were that the trustee, under the deed of trust, had
fraudulently colluded with the Goldens to let them purchase the property at an
inadequate price.
trustee, under the deed of trust, had fraudulently colluded with the Goldens to let them
purchase the property at an inadequate price. By adding six more defendants in the second
suit, the plaintiffs sought simply to magnify the extent of the fraud. So far as the Goldens are
concerned however, the facts implicating them under the first action would be the same that
implicate them in the second action. In both actions there is but one right asserted and one
wrong alleged. The right was the Tomiyasus' ownership of their property which they sought
to protect. The wrong was the unlawful conspiracy to defraud them of this property. The duty
which the Goldens are said to have violated was to act in good faith in bidding for the
property at the foreclosure sale and avoid any acts of conspiracy to defraud. Cf. Reno Club,
Inc. v. Harrah, 70 Nev. 125, 132, 260 P.2d 304, 307, in which this court said:
In that regard the primary right of Reno Club was its right to possession of the premises;
the primary duty of Harrah was his duty to surrender possession and his delict or act of wrong
was his refusal to do so. The facts from which these matters arose constituted the cause of
action in the former suit. It is clear that the same right, duty and delict, supported by the same
facts give rise to Reno Club's present claim for damages. It is not, then, a new cause of action
which is presented * * *.
[Headnote 2]
Thus the situation meets all tests as applied by this court and by other courts in
determining whether the cause of action was the same in the two suits. There was one right in
the plaintiffs and one wrong involving that right on the part of the defendants. There was an
identity of facts essential to maintaining the two suits. The asserted aggravation of the fraud
by alleging additional facts does not alter the existence of the same facts essential to the two
suits. Nor does the bringing in of additional parties who contributed additionally to the
alleged fraud of the Goldens violate the requirement for identity of parties. If this were so,
and if in a second suit against the Goldens for the same fraud, res judicata as a defense could
be avoided by adding six additional defendants, then if the Goldens were again successful
they could be subjected to a third suit by the addition of two or three more defendants,
and so on ad infinitum.
then if the Goldens were again successful they could be subjected to a third suit by the
addition of two or three more defendants, and so on ad infinitum. Restatement of Judgments
79(i). See also 30A Am.Jur., Judgments 397.
In view of the foregoing, and of our conclusion that the judgment in the first action
operated as res judicata in the second action, it is unnecessary for us to pursue the argument
of respondents that in any event the action is barred by collateral estoppel.
Our brother Gabrielli disagrees and is filing a dissenting opinion which he has submitted
to us. It is patent that he has misread the court's opinion in the first case. Our holding in that
case was simply that mere inadequacy of price, without proof of some element of fraud,
unfairness, or oppression that could account for and bring about inadequacy of price was not
sufficient to warrant the setting aside of the trustee's sale on foreclosure of the deed of trust.
We held that nothing in the record suggested fraud, conspiracy, collusion, or other fault, and
we reversed the judgment setting aside the sale. The converse of that holding is equally clear,
namely, that had there been fraud, conspiracy, collusion, or other fault resulting in the
inadequacy of price the judgment of the trial court would have been affirmed. The dissenting
opinion entirely misses the significance of the foregoing.
The summary judgment is affirmed with costs.
McNamee, C. J., being unable to act by reason of his hospitalization, the Governor
commissioned Honorable John E. Gabrielli, Judge of the Second Judicial District, to sit in his
place.
Gabrielli, D. J., dissenting:
I dissent.
The conscience of this writer is shocked that in this age, an 82 year old Japanese resident
of this State since 1916, and his family can be treated with such injustice and be deprived of
their real property unquestionably valued in excess of $200,000.00 {excluding the value of
the land sales contracts, upon which there is a balance due Plaintiffs in the sum of
$59,749.3S not including interest, which payments have been demanded by Defendants)
by foreclosure of Second Trust Deed for the sum of $1S,025.73 subject to a First Trust
Deed of $3S,96S.29 which according to the present complaint was accomplished by
means of an alleged conspiracy to defraud and deprive Plaintiffs of the aforesaid property
by Defendants-some of whom were in a fiduciary relationship with Plaintiffs and others
were supposed to be protecting their interests throughout said proceedings.
valued in excess of $200,000.00 (excluding the value of the land sales contracts, upon which
there is a balance due Plaintiffs in the sum of $59,749.38 not including interest, which
payments have been demanded by Defendants) by foreclosure of Second Trust Deed for the
sum of $18,025.73 subject to a First Trust Deed of $38,968.29 which according to the present
complaint was accomplished by means of an alleged conspiracy to defraud and deprive
Plaintiffs of the aforesaid property by Defendantssome of whom were in a fiduciary
relationship with Plaintiffs and others were supposed to be protecting their interests
throughout said proceedings. Full tender of the amount due plus costs was made to the
purchasers within a reasonable time after the foreclosure sale which was rejected. This case
crys out for relief, a meaningful day in Court and justice according to well established rules of
law. This Court in Moore v. Prindle, (July, 1964), 80 Nev. 369, 394 P.2d 352, a case
involving forfeiture under a contract of sale, reversed the lower Court's declaration of
forfeiture and in doing so stated, Moore tendered the amount necessary to cure the default
within a reasonable time. As was said in the case of Mosso v. Lee, 53 Nev. 176, 295 P. 776, *
* *there can be no doubt in this age, even where time is of the essence of a contract to convey
real estate, coupled with a provision of forfeiture, but that a Court of equity will grant relief
from a default and a declaration of forfeiture if the condition be subsequently performed, or
tendered, without unreasonable delay, where no circumstances have intervened that would
render it unjust or inequitable to give such relief. This language is fully applicable in all
respects to the instant case.
In this writer's humble opinion the majority opinion here, fails in several respects, to-wit:
(1) Fails to give adequate consideration to a realistic appraisal of the specific allegations
of the present complaint as compared to the complaint of the first action referred to in the
majority opinion. Instead, Respondents and majority opinion have focused their entire
attention on a statement of the facts made by this Honorable Court in its opinion in Golden v.
Tomiyasu, 79 Nev. 503, 3S7 P.2d 9S9, numbered {1) through {10).
Nev. 503, 387 P.2d 989, numbered (1) through (10). The majority opinion has gone through
this complaint and simply counted that the word fraud and similar terms appear about 40
odd times as against a few times in the first complaint, then the Court places the bare
allegations on a scale, somehow weighs the allegations per wordage rather than by their
meaning in context (without any evidence one way or another and if the Court is taking
judicial notice of the matters in issue in the former suit, it can't properly do so, such matters
have to be pleaded and proved in this action before they can be considered and that has not
been done at this stage of the proceedings) and concludes generally fraud was the basis of
the relief sought in both actions therefore res judicata applies.
(2) Fails or at the most superficially considers the issues actually litigated in the first action
as compared to new issues alleged in the present complaint and holds that they are the same,
or if not, could have been litigated within the issues of the original complaint which as
hereafter developed could not have been so litigated and in truth and in fact were not
litigated, because they were not specifically alleged and no one paid any attention to the
vague fraudulent verbage of the earlier complaint including the trial judge, defense and
plaintiffs' attorney and this Court in its opinion on the first case.
(3) Fails to give any consideration whatsoever to lack of identity of parties between the
two actionsexcept to generally state vindication becomes a Sisyphean task if by adding
conspirators the cause of action loses its identity when in fact the Goldens' role in the
conspiracy is no wise altered in this second complaint and by adding six more defendants in
the second suit, the Plaintiffs sought simply to magnify the extent of the fraud. The opinion
totally ignores that with the addition of the six more parties unlitigated issues, under another
cause of action have also been added inextricably involving the Goldens in a new light,
to-wit: the tort of conspiracy to defraud and maliciously defrauding Plaintiffs under the
reasoning of Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979, wherein the lower Court
granted a motion for summary judgment in favor of Defendants pointing out that the
Defendants had a legal right to do each of the actions complained of.
for summary judgment in favor of Defendants pointing out that the Defendants had a legal
right to do each of the actions complained of. On appeal to this Court the case was reversed,
and it was held that acts which otherwise may be lawful become actionable when done in
pursuance of a conspiracy to hurt another. Applying this here the acts of Goldens and Trustee
(not a party to first action) in the prior action were found not to be sufficiently improper or
irregular by this Court to set the sale aside but those same acts when combined with the new
parties and the conspiracy allegations of the present complaint may become improper and
actionable.
(4) Fails to consider what effect (if the Goldens are dismissed now) a possible judgment
against the remaining defendants who are not parties to this appeal and who have appeared in
the Court below and are at issue now for trial will have in future rights of all the parties
concerned and future possible litigation in such event; this Court's expressed fears that if res
judicata is not now rigidly applied, that if the Goldens should prevail in this second lawsuit,
that then they could be subject to a third suit by the addition of two or three more defendants
and so an ad infinitum is unrealistic in this practical world because, it is quite evident to this
writer at least, the present complaint is all inclusive in all realistic respects.
In dissenting this writer is generally in accord with the recitation of facts, analysis and
authorities as contained in Appellants' Opening and Reply Briefs on file on this appeal.
The only matters necessary to be examined on this appeal are the complaint filed in the
instant cause, the complaint filed in the first case between the Tomiyasus and Goldens only,
portions of the Record on Appeal in the last mentioned case to this Honorable Court being
Golden v. Tomiyasu, No. 4625 on this Court's docket; and the opinion of this Honorable
Court therein, appearing at 79 Nev. 503, 387 P.2d 989, decided December 23, 1963.
In the last mentioned litigation, the Tomiyasus sought, unsuccessfully, as it turned out, to
set aside a Trustee's Sale on Foreclosure on the principal ground of gross inadequacy of
price paid by the Goldens as to shock the conscience coupled with various formal
irregularities attendant upon the mechanics of the sale.
Trustee's Sale on Foreclosure on the principal ground of gross inadequacy of price paid by the
Goldens as to shock the conscience coupled with various formal irregularities attendant upon
the mechanics of the sale.
While the complaint in the earlier case may have mentioned the word fraud a time or
two, all of the allegations of the complaint and the context of the usage make it clear beyond
any doubt that the fraud spoken of was that species of fraud denoted as constructive,
imputed, or implied fraud. These terms are descriptive of a certain concept arising out of
actions in equity, and the meaning of such terms is always to be distinguished from actual or
real fraud.
Actual or real fraud necessarily involves the element and proof of deceit practiced upon
the party wrongeddeceit employing a knowing misrepresentation or concealment of
truthand for which the party wronged is not dependent upon any form of equitable relief,
but for which he can demand restitution or damages as a matter of right in an action at law.
An entirely different cause of action. The numerous cases drawing these distinctions between
constructive, implied or imputed fraud, and actual fraud, are collected in 8A Words and
Phrases, under the term Constructive Fraud, particularly at pages 537-539, and pages 39-41
of the 1963 Pocket Part. See McCray Refrigerator Company v. Uramoto, 79 Nev. 294, 382
P.2d 600, 96 A.L.R.2d 1339, for a good example of a case involving constructive fraud where
fraud was imputed to the defendant who had signed as a witness to the signature of a
guarantor, actually believing that the signature of the guarantor was valid, when, in fact, it
had been forged. On the basis of judicially imputed fraud, the defendant witness was held
liable for default of promisor.
At any rate judgment on the merits in favor of the Tomiyasus was reversed and remanded
for the entry of judgment in favor of the Goldens, this Court saying, in effect, that such
irregularities as were established were not prejudicial to the Plaintiffs and that mere
inadequacy of consideration was not a sufficient ground for setting aside a sale on
foreclosure. The action was equitable in its nature, seeking relief from a forfeiture.
equitable in its nature, seeking relief from a forfeiture. In so holding, this Court specifically
disapproved and rejected the principle stated in Dazet v. Landry, 21 Nev. 291, 298; 30 P.
1064, upon which the Tomiyasus had almost entirely relied in predicating their cause of
action. This Court's language appears in 30 P., at page 1067, * * * As a rule, something
more than mere inadequacy of price must appear before a sale will be set aside, unless the
inadequacy be so great as to shock the conscience. The inadequacy relied upon by the
Tomiyasus was $18,025.73 as against a quarter of a million dollars. In so rejecting this Court
virtually wiped out the principal basis upon which the original action was predicated. In other
words, as it turned out that action was largely predicated on rights that did not actually exist
because of this Court's repudiation of its authoritative statement in Dazet v. Landry, which
counsel for Plaintiffs could not reasonably anticipate would occur.
The present action is one at law, wherein the Plaintiffs are suing the Defendants, Goldens,
plus six others for malicious conspiracy to defraud, and the defrauding of the Plaintiffs of
their property.
The allegations of the present complaint are lengthy, and will not be set forth here, but
their substance alleges, in three causes of action, that the Respondents and the other
Defendants entered into a conspiracy to defraud the Appellants of their property by deceiving
the Appellants into believing that refinancing had been obtained for the indebtedness for
which the Appellants' property was to be sold, and maintaining the deception until such time
as it would be impossible for re-financing to be obtained from other sources to avoid the sale,
while simultaneously maneuvering it so that the Respondents would be enabled to bid the
property in for a bare portion of its value, thereby defrauding the Appellants of their property,
and praying that the sale and Trustee's Deed be set aside and the Appellants restored to their
property and the Respondents to have the return of the consideration paid at the sale; that the
damages sustained by the Appellants, in the event the sale be not set aside, were
$250,000.00; that the fraudulent and conspiratorial aims and acts of the Respondents
were maliciously held and performed, by reason of which Appellants are entitled to an
award of punitive or exemplary damages in the amount of $250,000.00.
the sale be not set aside, were $250,000.00; that the fraudulent and conspiratorial aims and
acts of the Respondents were maliciously held and performed, by reason of which Appellants
are entitled to an award of punitive or exemplary damages in the amount of $250,000.00.
The four assignments of error on this appeal are as set forth in the majority opinion, which
by this reference are incorporated herein as if set forth at length.
This writer finds the conclusion is inescapable that the present case involves a different
cause of action than that which was previously litigated.
The applicable legal principles here involved may be summarized as:
(1) To sustain a plea of res judicata, it is essential that the causes of action be identical;
(2) A cause of action consists of the facts establishing the Plaintiffs' primary right and the
Defendants' corresponding primary duty, plus the facts which constitute the Defendants' act of
wrong;
(3) The form of relief prayed for, whether it is the same, or different, in the two cases, is
not material, because the type of relief sought is not part of the cause of action;
(4) The test of identity of causes of action is whether or not the same evidence will equally
support both causes of action;
(5) The fact that the first and second causes of action might have been joined in a single
lawsuit does not justify application of the bar of res judicata where the causes of action are
different and the second cause of action was not actually litigated or placed in issue in the
first suit; and
(6) The party setting up the plea of res judicata has the burden of proving it, and if there is
any doubt as to the scope and coverage of a prior judgment, that, in and of itself, constitutes a
genuine issue of material fact which must go to the trier of the facts (in this case, the jury)
along with the other factual issues in the case.
Cutting away the conjectures and the questionable conclusions, these are the
circumstances upon which Respondents rely in attempting to support the Summary
Judgment in their favor.
conclusions, these are the circumstances upon which Respondents rely in attempting to
support the Summary Judgment in their favor.
(1) The complaint in the first case contained an allegation that officers of the Nevada Title
Insurance Company and the Defendants, Goldens, conspired and confederated together to sell
said land.
(2) In the opinion of this Court in Golden v. Tomiyasu, 79 Nev. 503, 387 P.2d 989, it was
remarked, negatively; nothing in the case warrants a conclusion of collusion to defraud the
Tomiyasus, and * * * but nothing in this suggests fraud, conspiracy, collusion or other
fault.
(3) Extensive discovery was engaged in prior to the trial, pursuant to Rule 15(a) and (b),
NRCP, Appellants could have sought to amend their complaint in the first suit, either before,
during, or after trial, if in fact the scope of the purported conspiracy was as broad as
Appellants now contend.
The matters set forth in (1) are generally summarized hereinabove indicating the general
substance of the allegation in the first complaint. It is clear to me that the alleged breach of a
contractual fiduciary obligation by the Trustee did not raise any issue of actual fraud, mala
fides or intentional tort on the part of the Respondents or anybody else.
Authoritative support for this writer's position is derived from the trial judge's summation
of the gist of the first action when defendants' counsel attempted to inquire into the issue of
bad faith on the part of the Trustee when the Judge stated; Alright now, the gist of that
charge would be that one of their officers or agents, went out and secured Mr. Golden to buy
this property. That's the charge. That would be the only element of conspiracy here that could
possibly exist. To which counsel for the Goldens said True. Thus effectively establishing
the law of the case that the cause of action for actual fraud and malicious conspiracy to
defraud was determined not considered sued on in the former case and was not litigated. So
that the majority's reasoning here, that these issues might with propriety, have been litigated
and determined" simply is not applicable to this case, and new cause of action.
have been litigated and determined simply is not applicable to this case, and new cause of
action. It should be borne in mind also that the alleged co-conspirator in the first action, the
trustee Title Company, was not a named party further indicating that the conspiracy
allegations of the First Complaint were mere window dressing for the real cause of action
alleged and litigated, to-wit: Shocking inadequacy of price coupled with irregularities in the
mechanics of the Trustee Sale.
Further support for this writer's position is derived from the pronouncement of this Court
in the earlier case: This was an action to set aside a trustee's sale on foreclosure of a deed of
trust. We hold that mere inadequacy of price, without proof of some element of fraud,
unfairness or oppression as accounts for and brings about the inadequacy of price is not
sufficient to support a judgment setting aside the sale.
But this is not to say that the Plaintiffs had litigated the matters of fraud, unfairness or
oppression. That there had been no such litigation is shown further by the Court's opinion,
where it expressly emphasized this fact at 387 P.2d 994, at page 994: In the present case
counsel for Respondents, in oral argument, stated that he did not claim fraud or conspiracy
but only collusion between the trustee and the high bidder. This did not exist. A judgment
should be construed with reference to the issues raised in the case and which are intended to
be decided and the scope of the judgment is not to be extended beyond the issues raised,
litigated and determined. See 49 C.J.S. 872, 441.
The inquiry here is simply whether the causes of action are the same. In the case of Bond
v. Thruston, 60 Nev. 19, 24, 98 P.2d 343, 345, 100 P.2d 74, this Court approved the test in
Pomeroy Code Remedies, 4th Ed., Page 460 in Section 347, as to what constitutes a cause of
action: In Pomeroy Code Remedies, 4th Edition, on page 460, in Section 347, the author
discusses at length the elements constituting a cause of action, and concludes such paragraph
with the statement that The cause of action, as it appears in the complaint when properly
pleaded, will therefore always be the facts from which the Plaintiff's primary right and the
Defendant's corresponding primary duty have arisen, together with the facts which
constitute the Defendant's delict or act of wrong.'
which the Plaintiff's primary right and the Defendant's corresponding primary duty have
arisen, together with the facts which constitute the Defendant's delict or act of wrong.'
And on page 465, in Section 349, the same author says: If the facts alleged show one
primary right of the plaintiff and one wrong done by the defendant which involves that right
the plaintiff has stated but a single cause of action, no matter how many forms and kinds of
relief he may claim that he is entitled to, and may ask to recover; the relief is no part of the
cause of action.' See also, Reno Club, Inc. v. Harrah, 70 Nev. 125, 260 P.2d 304; Silverman
v. Silverman, 54 Nev. 152, 169, 283 P. 593, 598; Miller v. Miller, 54 Nev. 44, 52, 54 Nev.
465, 3 P.2d 1069, 6 P.2d 1117, 11 P.2d 1088. In the case of Griggs v. Griggs, 214 S.C. 177,
51 S.E.2d 622, Sec. 519, pages 554-5 of Pomeroy on Remedies is quoted as follows: Every
action is based upon some primary right held by the Plaintiff and upon a duty resting upon the
Defendant corresponding to such right. By means of a wrongful act or omission of the
Defendant, this primary right and this duty are invaded and broken, and there immediately
arises from the breach a new remedial right of the Plaintiff, and a new remedial duty of the
Defendant. Finally, such remedial right and duty are consummated and satisfied by the
remedy, which is obtained through means of the action, and which is its object. Now, it is
very plain that, using the words according to their natural import and according to their
technical legal import, the cause of action' is what gives rise to the remedial right, or the
right of remedy, which is evidently the same as the term right of action' frequently used by
judges and text-writers. This remedial right, or right of action, does not arise from the
wrongful act or omission of the defendant, the delict alone, nor from the plaintiff's primary
right and the defendant's corresponding duty alone, but from these two elements taken
together, the cause of action', therefore, must always consist of two factors, (1) the plaintiff's
primary right and the defendant's corresponding primary duty, whatever be the subject to
which they relateperson, character, property or contract; and {2) the delict, or wrongful
act or omission of the defendant, by which the primary right and duty have been
violated."
subject to which they relateperson, character, property or contract; and (2) the delict, or
wrongful act or omission of the defendant, by which the primary right and duty have been
violated. Employing this means of analysis, it can readily be seen that in the first lawsuit
between the Tomiyasus and the Goldens, the plaintiffs' primary right arose out of the
contractual obligations contained in the Deed of Trust, and the statutory covenants adopted
thereby. Essentially, these rights were that the sale would be so publicized, so conducted and
so consummated that the property which secured the indebtedness would not be sacrificed for
a small portion of its value. The primary duty of the Goldens was an equitable obligation to
restore the property to the plaintiffs in the event the sale had not been publicized, conducted
and consummated as required under the said contractual obligations and statutory covenants
in the deed of trust, for, otherwise, the Goldens would have been enriched unjustly at the
expense of the Tomiyasus. See Magill v. Lewis, 74 Nev. 381, 333 P.2d 717, generally on
unjust enrichment where statutory requirements have not been followed. That the Plaintiffs
will not depend upon the same evidence (although, concededly some of the same
circumstances and transactions have in general given rise to both cases, this is not enough to
rigidly apply the doctrine of res judicata, and this Court so held in Casey v. Musgrave, 72
Nev. 31, 292 P.2d 1066) as was adduced in the former case is made manifest to this writer by
the allegations contained in their present complaint. There are genuine issues of fact in this
case which cannot be decided on motion for summary judgment. For example, whether or not
the defendants Golden, and the remaining defendants, did enter into a malicious conspiracy to
defraud the plaintiffs of their property, and whether they performed the acts in furtherance of
that conspiracy in fraud of the plaintiffs' rights and to the damage of the plaintiffs as alleged
in plaintiffs' complaint. Also, there are allegations in the present complaint concerning
matters which occurred subsequent to the foreclosure sale which were not alleged nor
litigated in the first action.
action. Matters to which when an attempt was made to inquire Defendants' counsel objected
stating I do not feel this is material to the issues of this case. This is all subsequent to the
issues raised by the pleadings, that is the sale, and effectively prevented further interrogation
into those issues which are now before this Court. The Defendants Golden have not urged
that such questions do not exist, nor could they do so with any merit. Their position below
was simply that any inquiry into these factual questions is foreclosed by their plea of res
judicata.
The law is well established that whenever there is any doubt as to the scope and coverage
of a prior judgment, that, in and of itself, constitutes a genuine issue of material fact, which
must be decided by the jury along with other factual issues in the case. The rule is
summarized in 6 Moore's Federal Practice, pp. 2257, 2258, as follows: Under general basic
principles that control the grant or denial of summary judgment, a motion for summary
judgment on the basis of a prior judgment should be denied if the prior judgment has no res
judicata or collateral estoppel effect between the parties to the present action; or if there is a
genuine issue of material fact as to the validity of the prior judgment, its scope and coverage,
privity, or whether it was on the merits so that it is controlling in the case at bar.
See Guam Investment Co. v. Central Building, Inc., 9 Cir., 288 F.2d 19, for an illustrative
case.
As to the assertion of Respondents that Appellants could have amended the Complaint in
the first case to allege the tort of fraud and deceit, conspiracy to defraud and malicious
conspiracy, the matter of amendment was something which was within the choice of the
plaintiffs thereit was not a duty.
This Court said in Reno Club v. Harrah, 70 Nev. 125, 260 P.2d 304, That the cause of action
might have been joined in a single suit does not bring the case within the bar of res judicata,
the causes of action are different and since the point was not actually litigated or placed in
issue in the earlier suit, that adjudication is no bar. Citing Gulling v. Washoe County Bank,
29 Nev. 257, S9 P.
89 P. 25, McIntosh v. Knox, 40 Nev. 403, 165 P. 337, Weisheyer v. Weisheyer, 54 Nev. 76, 6
P.2d 439, Wolford v. Wolford, 65 Nev. 710, 200 P.2d 988.
The law of Nevada is that when a plaintiff mistakenly (here in reliance upon Dazet v.
Landry,) believes a certain remedy is open to him, which is not, an adverse decision as to that
matter does not foreclose his right to pursue the remedy which he does have. The point has
been squarely decided in Gibson v. Milne, 1 Nev. 526; Casey v. Musgrave, 72 Nev. 31, 292
P.2d 1066; and Kassabian v. Jones, 73 Nev. 274, 317 P.2d 572. See also Wood v. Champion
Paper & Fibre Co., D.C., S.C., 157 F.Supp. 393, wherein the Federal Court stated Because
the plaintiff undertook to pursue a course which was not open to him or adopt a supposed
remedy which did not in reality exist, he is not now precluded from following the only course
open to him and seeking the only remedy he had at the outset * * * there cannot be said to be
an election of remedies unless there are separate and distinct remedies in existence when the
action is begun.
The Respondents in their Answer Brief and the majority opinion purport to treat the
question concerning the lack of identity of parties but in this writer's opinion they have not
attempted to answer the far-reaching and gravely perplexing questions which will arise in this
case if the summary judgment below is allowed to stand.
It is fundamental that one of the requirements for the application of res judicata is identity
of parties 50 C.J.S. Judgments 601. Smith v. Gray, 50 Nev. 56, 250 P. 369.
Ordinarily the issue of lack of identity of parties arises where a party is sought to be bound
by a former decision and he claims that he was not a party to the former action, nor in privity
with a party to the former action, and that his interests were not represented in the litigation.
See, for example, Rutherford v. Union Land & Cattle Co., 47 Nev. 21, 213 P. 1045, where it
was held an interpleader action was not a suit in rem and judgment therein could not affect
the rights of third parties not before the Court.
In the instant case, the issue of lack of identity of parties arises in a different way.
parties arises in a different way. The Defendants Golden claim that they are entitled to avail
themselves of the doctrines of res judicata despite the fact that other parties are joined with
them as defendants in this action.
It certainly cannot be contended that these additional parties are in privity with the
Defendants Golden, nor are the additional defendants mere nominal parties.
The plaintiffs have a going lawsuit against each and every defendant sued in the
complaint; Nevada Title Company, a Nevada Corporation, United Mortgage Company, a
Nevada Corporation, Lester H. Berkson, Hector J. St. Pierre, Merle P. Adams, and David P.
Boyer, in addition to the Defendants Golden. Responsive pleadings have been filed and the
case is at issue. The action is one at law for conspiracy to defraud, fraud, and malicious
conspiracy and injury.
If the plaintiffs prove the allegations of their complaint, they will be entitled to be restored
to the property of which they have been defrauded, or, in the alternative, the compensatory
damages, and to punitive damages.
If the Defendants Golden were to prevail in their claim of res judicata, and summary
judgment in their favor be affirmed, by this Court how could the plaintiffs be afforded
complete relief upon the trial of the case against the remaining defendants? Could the trial
court declare the trustee's deed to the property to be null and void because it was obtained
through the fraud of the members of the conspiracy, including the Goldens, when the Goldens
are not parties to the action anymore?
Again, if the case is submitted to the jury on the issues of damages, compensatory and
punitive, how can justice be served if the jury is not entitled to bring in an award against the
persons actually occupying the premises maliciously and fraudulently obtained?
And what about the rights of the remaining defendants under our Uniform Joint
Obligations Act (101.010 through 101.090), Nevada Revised Statutes?
Consider, also, the question of third-party practice under Rule 14 of the Nevada Rules of
Civil Procedure.
Clearly, any one of the remaining defendants ought to have a right to bring the Goldens back
into the litigation as persons not a party to the action who is or may be liable to him for all or
part of the Plaintiffs' claims against him.
The foregoing procedure would, in turn, make operative the provisions of Rule 14 that
The Plaintiff may assert any claim against the third-party Defendant arising out of the
transaction or occurrence that is the subject matter of the plaintiff's claim against the
third-party plaintiff.
These matters are more than mere procedural difficultiesthey are an insoluble
procedural snarl. The simple way, and the only way, to get rid of this snarl is to keep the
Goldens in this lawsuit.
This writer is of the opinion that there is merit to Appellants' position that the Goldens
should be estopped to raise the plea of res judicata, under the holdings of: Gamble v. Silver
Peak Mines, 35 Nev. 319, 133 P. 936, and Lunsford v. Kosanke, Cal.App. 1956, 295 P.2d
432, but will not be discussed further here.
It must always be borne in mind that the burden of establishing the lack of a triable issue
of fact is upon the moving party; that on a motion for summary judgment the trial court is
precluded from drawing any inferences favorable to the moving party, and every favorable
intendment must be given to the party against whom the motion is made; and that the purpose
of Rule 56 is not to cut litigants off from their right of trial by jury if they really have issues to
try. Among the numerous Nevada cases so holding are the following: Parman v. Petricciani,
70 Nev. 427, 272 P.2d 492; Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979; and
Abbott v. Miller, 80 Nev. 174, 390 P.2d 429.
Finally, it is the fundamental rule that in passing on a motion for summary judgment under
Rule 56, the Court must not undertake to decide questions of factit is only authorized to
decide whether such questions exist, and the existence of such questions precludes the
granting of summary judgment, as was held, among other cases, in the following: Bynum v.
Frisby, 70 Nev.
535, 276 P.2d 487; and Moore v. Moore, 78 Nev. 186, 370 P.2d 690.
In conclusion the bar of res judicata (nor collateral estoppel) does not apply to this case
because the causes of action in the two cases are not the same and for lack of identity of
parties and the summary judgment should be reversed. The record is abundantly clear, that
any issue of fraud and conspiracy was not litigated at the former trial. A substantial question
exists as to what was litigated in the former case and the only proper course open is for the
question to be decided in the lower Court, upon a full trial on the merits, and not by way of
summary judgment.
This writer is impressed with the following statement of general policy declared in Levee
District No. 4 of Dunklin County v. Small, Mo.App. 1955, 281 S.W.2d 614, wherein the
Court stated: In judicial efforts to achieve the primary purpose and attain the broad objective
of all litigation, which is simply and succinctly stated, to do justice * * * (citing cases) * * *
no principle has found more universal acceptance than that each case must rest and be ruled
upon its own particular facts * * *.
If we are to do more than render mere hypocritical lip service to the basic idea that our
primary duty is to litigants rather than to counsel who represent them * * * (citing cases) * * *
and to the overriding policy of the law that the end of all litigation is to do justice, we cannot
escape the conclusion that, upon the particular facts of the instant case the judgment of
dismissal should be set aside.
In the instant case, the Appellants have not had their day in Court on the causes of action
alleged in their present complaint and the interests of justice requires that Plaintiffs be
accorded that day to demonstrate, if they can, that they should not be subjected to the rigors
of res judicata unless and until it is clearly demonstrated that their right to litigate this case
has indeed been foreclosed.
____________
81 Nev. 163, 163 (1965) Zalk-Josephs Co. v. Wells Cargo, Inc.
ZALK-JOSEPHS COMPANY, a Minnesota Corporation, Doing Business as TRIANGLE
STEEL & SUPPLY CO., Qualified to do Business in Nevada, Appellant, v. WELLS
CARGO, INC., a Nevada Corporation, Respondent.
No. 4824
April 2, 1965 400 P.2d 621
Appeal from the Eighth Judicial District Court, Clark County; William P. Compton,
Judge.
Action against general contractor by supplier of materials and services to defaulting
subcontractor. From an adverse summary judgment rendered in the lower court, the plaintiff
appealed. The Supreme Court, Badt, J., held that the present action was barred by a final
judgment rendered in a prior action between the same parties where in both instances the
facts relied on were the same and the plaintiff in the present action merely singled out a
guarantee clause contained in the general contract, and that the dismissal in the first case for
failure to state a claim upon which relief can be granted was a dismissal on the merits where
it was sustained without leave to plead further.
Affirmed.
Lester H. Berkson and Jones, Wiener & Jones, of Las Vegas, for Appellant.
Guild, Guild & Cunningham and David Warner Hagen, of Reno, for Respondent.
1. Judgment.
Plaintiff suing for second time general contractor to recover for materials and services furnished
defaulting subcontractor pleaded same cause of action as in its first suit where plaintiff relied on same facts
as before and merely singled out guarantee clause contained in general contract in attempt to state new
cause, and the second state suit was accordingly barred by judgment of dismissal on merits in first. NRCP
41(b); NRS 205.310.
2. Judgment.
Dismissal of case for plaintiff's failure to state claim upon which relief can be granted constituted
adjudication on merits so as to render matters raised res judicata where plaintiff on appeal from
judgment of dismissal did not assign as error abuse of discretion of court in not
granting leave to amend, did not thereafter seek any leave to amend its complaint
and order of dismissal had been made with prejudice as to each defendant.
appeal from judgment of dismissal did not assign as error abuse of discretion of court in not granting leave
to amend, did not thereafter seek any leave to amend its complaint and order of dismissal had been made
with prejudice as to each defendant. NRCP 12(b) and (1-7), 41(b), 56.
OPINION
This is an appeal from a summary judgment rendered in favor of respondent (defendant
below). The ground and reason for the summary judgment were that in a former action
between the same parties on the same cause of action a final judgment had been rendered
against the plaintiff and was a bar to the present action. The lower court said: The dismissal
in the prior case operated as an adjudication on the merits, NRCP Rule 41(b). The former
case was Zalk-Josephs Company, doing business as Triangle Steel & Supply Co. v. Wells
Cargo, Inc., and Travelers Indemnity Company. The judgment in the prior case was affirmed
by this court in Zalk-Josephs Company v. Wells Cargo, Inc., 77 Nev. 441, 366 P.2d 339. In
the opinion in that case this court analyzed the three causes of action relied upon by the
plaintiff appellant. Reference is made to that opinion for the purposes of understanding such
three causes of action. However, for the purpose of the application of the pleading and the
facts to the rules hereinafter discussed with reference to the application of the plea of res
judicata, we compare the pleadings of the first case to the present case. We do this by reason
of the insistence of appellant that in the present case it is pleading a new and independent
contract not pleaded in the first action.
In the first case the present plaintiff alleged in its complaint that Clifford L. Kaufield
entered into a contract with respondent Wells Cargo, Inc., in 1958 to furnish material and
labor for Nevada State Highway Project 1-015-1 (8) 0, Contract No. 1041; that Kaufield
ordered goods, services, and materials from the plaintiff for construction work on said
contract No. 1041; that the reasonable and agreed value thereof, less credits, was
$21,S66.46, which was unpaid, due, and owing for the goods and services supplied for
said State Highway Project numbered as aforesaid; that Wells Cargo, Inc., was paid said
sum pursuant to said contract by Nevada State Highway Department, said contract being
again thus particularly identified; that Wells Cargo, Inc.,
that the reasonable and agreed value thereof, less credits, was $21,866.46, which was unpaid,
due, and owing for the goods and services supplied for said State Highway Project numbered
as aforesaid; that Wells Cargo, Inc., was paid said sum pursuant to said contract by Nevada
State Highway Department, said contract being again thus particularly identified; that Wells
Cargo, Inc., paid said sum to Kaufield to be paid to plaintiff in discharge of the materials,
labor, and goods supplied by plaintiff for use in said Nevada State Highway Project; that
Kaufield failed and neglected to turn said sum over to plaintiff, but converted said sum to his
own use; that NRS 205.310 created a relation of principal and agent between Wells Cargo
and Kaufield; that Kaufield, in receiving said sums, was the agent of Wells Cargo; that,
although demanded, Wells Cargo has paid no part of said sum; that Kaufield had filed a
petition in bankruptcy.
Plaintiff's second cause of action in said first suit re-alleged all its said recitals with the
references to the said state contract above recited, and further alleged that the then defendant
Travelers Indemnity Company was the surety on Wells Cargo performance bond insuring
payment of all labor and material claims. Travelers Indemnity Company is not a party to this,
the second action.
1

The second cause of action in the first suit further alleged that the Nevada State Highway
Department accepted said project as completed, but that plaintiff had no knowledge thereof;
that therefore plaintiff neglected to file a lien for the unpaid balance within the statutory
30-day period; that it had no notice of said acceptance; that it believed that work was still in
progress; that it had been informed by Wells Cargo, Inc., and Kaufield that the project was
not completed; that Wells Cargo, Inc., had thus misled plaintiff into letting its lien rights
lapse; that Kaufield had continued to make partial payments, leading plaintiff to believe
that work was still in process; that by reason of said facts plaintiff had neglected to file its
notice of lien.
____________________

1
In oral argument counsel for Zalk-Josephs, appellant, volunteered the fact that there was no need to sue the
surety, as Wells Cargo was financially responsible and was within the state and nothing was to be gained by
pursuing the surety at its foreign home office.
letting its lien rights lapse; that Kaufield had continued to make partial payments, leading
plaintiff to believe that work was still in process; that by reason of said facts plaintiff had
neglected to file its notice of lien.
In the third cause of action in the first suit plaintiff again alleged the subsistence of the
state highway contract No. 1041 thus identified; that it had performed work, labor, and
services thereunder without any express request from Wells Cargo, Inc., which knew however
that the work, labor, and services were being performed, that plaintiff expected to be paid
therefor, and accepted the same and received the benefits thereof; that the amount thereof was
the sum of $21,866.46, no part of which had been paid, although demanded. Zalk-Josephs
accordingly prayed for judgment in the said first action in said sum.
Appellant contends that its present complaint is upon an entirely different cause of action,
to wit, the particular provision of the same and identical state contract reading as follows:
The contractor guarantees the payment of all just claims for materials, supplies and labor,
and all other just claims against him or any subcontractor, in connection with this contract.
This is pleaded verbatim in the second complaint and is followed by the following conclusion
of law: Said provision was expressly made by the parties for the benefit of third parties who
furnished services and labor or supplied materials on said construction job, such as the
Plaintiff herein. Further allegations in said asserted new and independent cause of action are
in effect the same as pleaded in the first cause of action with the exception of crediting the
sum of $1,905.25, a dividend out of the bankruptcy court.
Note that in the first suit appellant had alleged that Wells Cargo, Inc., was the principal,
and Travelers Indemnity Company the surety on a contractor's bond to secure payment of
labor and materials on said highway project. This allegation can refer to nothing but the same
guaranty provision above quoted in the complaint in the second suit, which is said to be for
the benefit of third parties furnishing services and labor or supplies and materials "on said
construction job."
benefit of third parties furnishing services and labor or supplies and materials on said
construction job.
As the pleadings may disclose the identity of causes of action to support a defense of res
judicata, we think it clear that the plaintiff in the instant cause of action, or second suit, has
pleaded the same cause of action as pleaded in the first suit. See authorities discussed infra.
Turning, then, to the facts to support the causes of action in the two suits, we find nothing
new in the second action. The first action clearly indicated that the contract between Wells
Cargo and the state was a material part of the evidence to be adduced. The complaint in the
second action refers to the same contract but in effect says: We are relying particularly upon
a guaranty clause therein contained. This contention is less supportable than the old
common-law pleadings under which plaintiff could not recover on a proof of simple trespass
where his complaint had alleged trespass vi et armis, or an implied contract where an
express contract had been alleged, which we have long dispensed with, first by code pleading
and more recently pleading under the rules of practice.
[Headnote 1]
The facts, then, in both suits were (1) the state contract, which contained the guaranty
clause, (2) the subcontract from Wells Cargo to Kaufield, (3) the furnishing of labor and
materials by Zalk-Josephs to Kaufield, (4) the payment by Wells Cargo to Kaufield, and (5)
the failure of Kaufield and of Wells Cargo to pay Zalk-Josephs. Those facts were common to
the original complaint as well as to the second complaint.
But not only was there an identify of parties (which appellant concedes) and an identity of
the relief sought (which appellant also concedes but contends is irrelevant), but likewise an
identity of causes of action. These tests are ordinarily sufficient, but emphasis has sometimes
been placed upon a third, which likewise is satisfied here. There was (1) the same right,
namely, the right of Zalk-Josephs to be paid for its labor and materials furnished, (2) the same
wrong or delict, the failure of Wells Cargo to pay the same upon Kaufield's default, and {3)
the same damage, the result of the failure of payment to Zalk-Josephs of the value of the
labor and materials supplied.
of Wells Cargo to pay the same upon Kaufield's default, and (3) the same damage, the result
of the failure of payment to Zalk-Josephs of the value of the labor and materials supplied.
Upon authority of this court's opinion in Tomiyasu v. Golden, filed by this court March 30,
(1965) (No. 4819), 81 Nev. 140, 400 P.2d 415, and the cases therein cited, we are compelled
to hold that the plea of res judicata was well taken, and that the action of the lower court
supporting the same was proper.
2

A further question has arisen which must be disposed of. The court below, in dismissing
the action on the grounds of res judicata, said: The dismissal in the prior case operated as an
adjudication on the merits, NRCP Rule 41(b). However, when we turn to the record in the
former case, we find that the motion to dismiss made by Wells Cargo, Inc., recited: This
motion is based on the Complaint on file herein, the provisions of Rule 12(b) (5), [and]
Nevada Rules of Civil Procedure * * *. The motion to dismiss in behalf of Travelers
Indemnity Company was upon the same grounds. The order dismissing the case was made
on the Defendants' motions to dismiss each of the causes of action of Plaintiff's Complaint
for failure to state a claim against the Defendants, and each of them, upon which relief can be
granted
* * *. The motion granted by the court below in the instant case was a motion for summary
judgment supported by affidavit. The dismissal of the first case made no reference to Rule 41
(b) which, by its terms, operates as an adjudication upon the merits.
Although appellant's specification of errors assigns five specific errors of the court in the
dismissal of said case, it places no reliance upon any claim to the effect
____________________

2
In addition to the Nevada cases cited in Tomiyasu v. Golden, supra, reference is made to the following res
judicata cases of this court: Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964); Kernan v. Kernan, 78 Nev. 93, 369
P.2d 451 (1962); Nevada Desert Inn v. Burke, 74 Nev. 280, 329 P.2d 636 (1958); Kassabian v. that a
dismissal under Rule 12Jones, 73 Nev. 274, 317 P.2d 572 (1957); City of Reno v. Fields, 69 Nev. 300,
250 P.2d 140 (1952); Wolford v. Wolford, 65 Nev. 710, 200 P.2d 988 (1948); Miller v. Miller, 54 Nev. 44, 3
P.2d 1069 (1931); Vickers v. Vickers, 45 Nev. 274, 199 P. 76 (1921).
that a dismissal under Rule 12(b) is not a dismissal on the merits. Nor did it assign such
ground in the oral argument.
The court must frankly concede that it had been under the impression that a dismissal
under Rule 12(b) was not a dismissal on the merits, and so indicated during the course of the
oral argument. However, respondent has cited to us 1A Barron & Holtzoff 356, at 358, in
which the authors say: The dismissal of an action for failure to state a claim upon which
relief can be granted can result in a judgment on the merits, though usually it will lead only to
amendment of the complaint. That such dismissal, if sustained without leave to plead further
(as was done in the present case), results in a judgment on the merits is cited in Note 88 to the
text under authority of Mullen v. Fitz Simons & Connell, 7 Cir., 172 F.2d 601, certiorari
denied, 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed 1758. The statement in that case is that a
complaint should not be dismissed for insufficiency, for failure to state a cause of action,
unless it appears to a certainty that plaintiff is entitled to no relief under any set of facts which
could be proved in support of the claim. This, for the reason, that the motion to dismiss for
failure to state a claim raises matter in bar and, if sustained without leave to plead further,
results in a judgment on the merits. Id. 603. For authority it cites 2 Moore's Federal Practice,
2d Ed., para. 12.09, at 2257. The citation supports the language used. The text in Moore
supports the rule as cited, but the following further explanation is given:
On the other hand defenses numbered (1)-(5) and defense numbered (7) of Rule 12(b) do
not raise matters in bar. Since under Rule 56 on summary judgment only matters on the
merits can be raised and if a judgment is rendered thereunder it is one in bar, it was proper to
integrate defense numbered (6), failure to state a claim, with Rule 56, and not integrate the
other defenses specified in Rule 12(b) with the summary judgment rule.
In Rhodes v. Meyer, D.C., 225 F.Supp. 80, the court said, citing many authorities: "For a
judgment or decree entered on a general demurrer {where such a pleading is tolerable),
or on a motion to dismiss {within the practice of this court) for failure to state a claim on
which relief can be granted against the moving defendant, is no less effective as res
judicata in respect of issues resolved by it than a judgment or decree rendered after final
trial and on proof."
For a judgment or decree entered on a general demurrer (where such a pleading is
tolerable), or on a motion to dismiss (within the practice of this court) for failure to state a
claim on which relief can be granted against the moving defendant, is no less effective as res
judicata in respect of issues resolved by it than a judgment or decree rendered after final trial
and on proof.
In Sardo v. McGrath, 196 F.2d 20, Judge Bazelon uses the same language:
The motion to dismiss for failure to state a claim raises matter in bar and, if sustained
without leave to proceed further, results in a judgment on the merits.'
This situation occupied the Supreme Court of Montana in Rambur v. Diehl Lumber
Company, 394 P.2d 745 (Mont. 1964), where the court discussed the relationship of
dismissals under Rule 12(b), Rule 41 (b), and concludes:
The complaint will be sustained if the facts are pleaded sufficiently. However, if the facts
and pleadings demonstrate that in no event and under no set of facts could the complainant
have a claim for relief then the motion to dismiss will be granted and judgment thereon will
have a tendency to operate as res judicata. (Emphasis added.)
In the appeal from the judgment in the first case, the appellant did not assign as error an
abuse of discretion on the part of the court in not granting leave to amend. Further, the
appellant did not thereafter seek from the court leave to amend its complaint. As we have
seen, it set up in its first complaint three separate causes of action, each seeking the same
relief but under a different theory. We can only conclude that the appellant said in effect, I
have stated all the facts that would entitle me to recovery under any theory.
[Headnote 2]
In view of the authorities above cited by respondent and in view of the fact that the order
of dismissal in the first case was made with prejudice as to the Defendants, and each of
them, and particularly because appellant in the instant suit has attempted to set up a cause of
action which we have held identical with the causes of action pleaded in its first suit, we
hold such first dismissal to be a determination on the merits, just as we should be inclined
to characterize this affirmance of the dismissal in the second suit if appellant should file
still a third action claiming, for example, as an entirely new and independent action, that
Wells Cargo in receiving payment by the state had, under the terms of the same state
contract, received them as a trustee for the benefit of appellant.
cause of action which we have held identical with the causes of action pleaded in its first suit,
we hold such first dismissal to be a determination on the merits, just as we should be inclined
to characterize this affirmance of the dismissal in the second suit if appellant should file still a
third action claiming, for example, as an entirely new and independent action, that Wells
Cargo in receiving payment by the state had, under the terms of the same state contract,
received them as a trustee for the benefit of appellant. There must be some end to the
litigation, and appellant may not proceed to advance one theory after another, as a right to
recover a judgment against defendant, labeling each new theory as an independent and new
cause of action.
The order appealed from is affirmed.
When this case was here before (Zalk-Josephs v. Wells Cargo, 77 Nev. 441, 366 P.2d
339), we affirmed a Rule 12(b) (5)
1
dismissal which had been entered without leave to
amend. The record on appeal in that case did not show that Zalk-Josephs had requested leave
to amend its complaint, nor did Zalk-Josephs contend on appeal that the lower court had
abused its discretion in dismissing that case with prejudice. The present theory for relief was
available to it then, but not offered. We are not told why Zalk-Josephs did not ask for leave to
amend to plead the claim which it now asserts; why, on appeal in the former case, it did not
assign as error the lower court's action in dismissing the case with prejudice. We must assume
that Zalk-Josephs elected to allow the entry of a judgment of dismissal on the complaint as it
stood. In these circumstances it is appropriate to protect Wells Cargo against a second law
suit arising from the same transaction. Therefore, I am willing to treat the first case as though
it were an adjudication on the merits, notwithstanding the fact that it did not proceed to a
point where proof was tendered. Cf. Dubin v. Harrell, 79 Nev. 467
____________________

1
NRCP 12(b) (5) reads: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim,
counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is
required, except that the following defenses may at the option of the pleader be made by motion: * * *(5) failure
to state a claim upon which relief can be granted.
adjudication on the merits, notwithstanding the fact that it did not proceed to a point where
proof was tendered. Cf. Dubin v. Harrell, 79 Nev. 467, 386 P.2d 729, concerning a 41(e)
dismissal for want of prosecution. Some federal cases under similar circumstances have done
so. Brooks v. Arkansas-Louisiana Pipe Line Co., 8 Cir., 77 F.2d 965; Vinson v. Graham, 10
Cir., 44 F.2d 772; Northern Pac. Ry. Co. v. Slaght, 205 U.S. 122. See also Restatement,
Judgments 50; Divide Creek Irr. Dist. v. Hollingsworth, 10 Cir., 72 F.2d 859. Our ruling in
today's case should not be confused with the effect of a Rule 12(b) (5) dismissal when
matters outside the pleading are presented to the court, and the motion is treated as one for
summary judgment. In that situation it is clear that the judgment is, in fact, an adjudication on
the merits. 2 Moore's Federal Practice, 2 ed., 12.09, p. 2257; Sardo v. McGrath, 196 F.2d
20; Rhodes v. Meyer, 225 F.Supp. 80; Cf. Rambur v. Diehl Lumber Co., 394 P.2d 745 (Mont.
1964).
Craven, D. J., concurring:
I concur in the conclusion and order. However, I am constrained to note that I cannot make
my concurrence dependent upon that part of the majority opinion at p. 5 which reads as
follows:
Upon authority of this court's opinion in Tomiyasu v. Golden, filed by this court March
30, 1965 (No. 4819), 81, Nev. 140, 400 P.2d 415, and the cases therein cited, we are
compelled to hold that the plea of res judicata was well taken, and that the action of the lower
court supporting the same was proper. (Emphasis supplied)
I have read and am familiar with the majority and dissenting opinions in the above
mentioned Tomiyasu case. There are sharp conflicts between the two opinions as to the
nature of the record in that case. I have not read and am not familiar with that record. I could
not, with propriety, undertake to evaluate either opinion unless I had undertaken to make a
complete and independent evaluation of the record in that case.
Therefore, my concurrence in the instant matter is based upon the record here and upon the
cases cited in the majority here and the cases cited in the Tomiyasu case.
the majority here and the cases cited in the Tomiyasu case.
commissioned Honorable Thomas O. Craven, Judge of the Second Judicial District, to sit in
his place.
____________
81 Nev. 173, 173 (1965) State v. Green
THE STATE OF NEVADA, Appellant, v. WILLIAM
McKINLEY GREEN, Respondent.
No. 4853
April 13, 1965 400 P.2d 766
Judge.
Proceeding on appeal from an order of the trial court granting defendant's motion for new
trial following jury verdict of guilty of crime of robbery. The Supreme Court, Badt, J., held
that statement of unidentified juror, after rendition of verdict and dismissal of jury, that the
dirty nigger got what he deserved was not misconduct of jury tending to prevent fair and
due consideration of case within statute providing for new trials in criminal cases.
Reversed and remanded.
[Rehearing denied April 28, 1965]
Harvey Dickerson, Attorney General, Edward G. Marshall, District Attorney, and Earl
Gripentrog, Deputy District Attorney, Clark County, for Appellant.
J. Forest Cahlan and Rex A. Jemison, of Las Vegas, for Respondent.
1. Criminal Law.
Statement of unidentified juror, after rendition of verdict and dismissal of jury, that the dirty nigger got
what he deserved was not misconduct of jury tending to prevent fair and due consideration of case
within statute providing for new trials in criminal cases. NRS 175.535, subd. 3.
81 Nev. 173, 174 (1965) State v. Green
2. Criminal Law.
Statement of prosecutor to jury that they might infer guilt of robbery from fact that defendant had $95,
about one-half of proceeds of robbery, in his possession immediately after crime did not warrant new trial.
3. Criminal Law.
Prosecutor has right to comment on testimony and to ask jury to draw inferences from evidence and has
right to state fully his views as to what evidence shows.
4. Criminal Law.
If prosecutor's reasoning relating to his views as to what evidence shows is faulty, such faulty reasoning is
subject to ultimate consideration and determination by jury.
5. Criminal Law.
Argument of district attorney that testimony of state's witnesses had not been contradicted was not ground
for new trial as amounting to statement that defendant could have brought in witnesses but did not.
OPINION
This is an appeal from an order of the court below granting the defendant's motion for a
new trial following a jury verdict of guilty of the crime of robbery.
Under the provisions of NRS 175.535 the court has power to grant a new trial after a
verdict against the defendant, in the following cases only:
3. When the jury has separated without leave of the court, after retiring to deliberate upon
their verdict, or have been guilty of any misconduct tending to prevent a fair and due
consideration of the case.
There are seven subdivisions of the section but the portion of subsection 3 as above quoted
is the only one applicable here.
The motion for new trial was made upon the following grounds:
1. That the jury has been guilty of misconduct tending to prevent a fair and due
consideration of the case.
2. That verdict is contrary to the law and evidence of this case.
3. That the defendant was substantially prejudiced and deprived of a fair trial by reason of
the following circumstances: The attorney for the State of Nevada argued improperly in
such a manner so as to prejudice the jury against the defendant."
81 Nev. 173, 175 (1965) State v. Green
circumstances: The attorney for the State of Nevada argued improperly in such a manner so
as to prejudice the jury against the defendant.
The first ground assigned is not proven; the second ground was not pursued in the lower
court or here, and the third ground is not one of the exclusive statutory grounds for a new
trial.
On May 3, 1964, at about 4:45 A. M., a robbery took place at Action City Transmission in
Las Vegas, Nevada. Two robbers took between $168 and $172. Respondent was positively
identified as one of the two robbers.
It was the testimony of respondent that he arrived in Las Vegas on May 2, 1964, and that
he spent the evening and the early morning hours of May 3, 1964, gambling on the Las Vegas
Strip. He further testified that he had $125 in his possession when he arrived in Las Vegas.
He denied participation in the robbery. However the defendant was positively identified by
two credible eye witnesses to the crime.
1. Jury misconduct:
[Headnote 1]
The affidavit of the secretary of respondent's counsel to the effect that she heard an
unidentified juror, after the rendition of the verdict and the dismissal of the jury, say that the
dirty nigger got what he deserved was not allowable ground under the statute for a motion
for new trial. The only subdivision of the new trial section to which this could possibly have
reference was ground No. 1 above quoted. But misconduct of the jury tending to prevent a
fair and due consideration of the case has no reference to an incident of this kind. It has no
application to such a statement made after trial, after the jury's deliberations, and after their
return of a verdict of guilty and after their dismissal.
2. Forensic misconduct:
[Headnotes 2-4]
Although not constituting any of the grounds of a motion for new trial, respondent
contends that the order granting new trial is supportable on account of the misconduct of the
district attorney in his argument to the jury. Such misconduct is said to exist in the
prosecutor's statement to the jury that they might infer guilt from the fact that the
respondent had $95 in his possession immediately after the crime.
81 Nev. 173, 176 (1965) State v. Green
statement to the jury that they might infer guilt from the fact that the respondent had $95 in
his possession immediately after the crime. (This sum was about one half of the proceeds of
the robbery.) The defendant, after his discharge from the Armed Forces, had been receiving
unemployment compensation for some months. This supplies at least a degree of justification
of the assumption of his impecuniosity prior to the robbery and arrest in possession of a
comparatively large sum of money. The prosecutor had a right to comment upon the
testimony and to ask the jury to draw inferences from the evidence, and has the right to state
fully his views as to what the evidence shows. People v. Sieber, 201 Cal. 341, 257 P. 64, 70.
If the prosecutor's reasoning is faulty, such faulty reasoning is subject to the ultimate
consideration and determination by the jury. Idem.
[Headnote 5]
The district court granted the motion for new trial upon the grounds of misconduct on the
part of the district attorney in arguing that the testimony of the state's witnesses had not been
contradicted, apparently because this was in the nature of commenting upon the defendant's
failure to testify. But the defendant had testified as a witness in his own behalf. He testified
that he had been gambling and drinking on the Strip at the time of the robbery. The district
attorney argued somewhere [he] should have seen somebody, should have known somebody,
but no one before you, just gave. Here objection was made and sustained. The court in
granting the motion for new trial said, in sustaining the objection made that the district
attorney's argument amounted to the statement that the defendant could have brought in
witnesses but he didn't: This is what disturbs me and that is why I cautioned counsel and
told the jury to disregard the statement by counsel and explained that he had a constitutional
right to not even take the stand and that he didn't have to call the witnesses. I am going to
grant the new trial. We see no misconduct in the prosecutor's argument.
81 Nev. 173, 177 (1965) State v. Green
The order granting respondent's motion for a new trial is reversed, and the case is
remanded with directions to enter judgment and pronounce sentence upon the jury verdict.
Thompson, J., and Breen, D. J., concur.
Honorable Peter Breen, of the Fifth Judicial District, to sit in his place.
____________
81 Nev. 177, 177 (1965) Harvey v. Streeter
THOMAS G. HARVEY, DALLAS J. SEEVERS, WALTER L. STATES, T. P. BOTTI,
JOSEPH LeROY GEACH, JR., and JOHN W. KIRKLEY, Executors of the Estate of
DONALD C. KITSELMAN, Deceased, SADIE HANNUM, Guardian of the Persons and
Estates of MARJORIE EVELYN KITSELMAN and LESLIE JANE KITSELMAN, Minor
Children, SANDRA LEA HANNUM, and the Unknown Executor, Executrix, or
Administrator, of the Estate of JUNE KITSELMAN, Deceased, Beneficiaries of the
DONALD C. KITSELMAN LIVING TRUST, Appellants, v. JACK STREETER, Trustee of
the DONALD C. KITSELMAM LIVING TRUST, Respondent.
No. 4839
April 14, 1965 400 P.2d 761
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Action by trustees for allowance and settlement of their accounts, payment of their fees
and attorney fees, leave to transfer the balance over to executors of settlor, and discharge. The
trial court awarded certain fees to corporate trustee and certain other fees to attorney who had
acted as individual trustee, and appeal was taken from portion of the award to the attorney.
The Supreme Court, Badt, J., held that attorney who was trustee under trust agreement
providing that attorney might charge for all business done by him as attorney for the trust
estate and that noncorporate trustees should be paid fair and just compensation was
properly awarded $5,600 in fees as trustee in which capacity he spent approximately
2,000 hours, $5,050 in legal fees for spending 130 hours as attorney, being present one
day at a hearing, and filing answering brief, and $55.31 in court costs.
from portion of the award to the attorney. The Supreme Court, Badt, J., held that attorney
who was trustee under trust agreement providing that attorney might charge for all business
done by him as attorney for the trust estate and that noncorporate trustees should be paid fair
and just compensation was properly awarded $5,600 in fees as trustee in which capacity he
spent approximately 2,000 hours, $5,050 in legal fees for spending 130 hours as attorney,
being present one day at a hearing, and filing answering brief, and $55.31 in court costs.
Affirmed.
A. D. Jensen, of Reno, for Appellants.
Streeter, Sala, Richards & McAuliffe, of Reno, for Respondent.
Supreme Court will not interfere with determinations of matters of fact by district court if there is
substantial support therefor in record.
2. Trusts.
Generally, trustee is entitled to compensation unless he voluntarily serves without pay or waives right
thereto.
3. Trusts.
Amount of compensation for trustee is fixed by terms of trust instrument, contract between settlor and
trustee, statute, or court action.
4. Trusts.
On submission of trustees' final account, fixing of fees was entirely in order. NRS 153.070.
Lower court's award will not be set aside if there is substantial evidence to support it.
6. Trusts.
Trust provision authorizing payment of fair and just compensation for services of trustees was not
displaced by subsequent agreement whereby trustees were to receive specified sum for each meeting of
advisory board of trustees to which corporate and individual trustees presented what had been done for
general approval.
7. Attorney and Client; Trusts.
Attorney who was trustee under trust agreement providing that attorney might charge for all business
done by him as attorney for the trust estate and that noncorporate trustees should be paid fair and just
compensation was properly awarded $5,600 in fees as trustee, in which capacity he spent
approximately 2,000 hours, $5,050 in legal fees for spending 130 hours as attorney,
being present one day at a hearing, and filing answer in brief, and $55.31 in court
costs.
$5,600 in fees as trustee, in which capacity he spent approximately 2,000 hours, $5,050 in legal fees for
spending 130 hours as attorney, being present one day at a hearing, and filing answer in brief, and $55.31
in court costs.
OPINION
This is an appeal from an order of the court below in an action brought by the Nevada
Bank of Commerce, a domestic banking corporation, and Jack Streeter, trustees of the Donald
C. Kitselman living trust, against the above-named appellants. The trial court awarded certain
trustee's fees to the corporate trustee, from which award no appeal has been taken, leaving the
respondent Jack Streeter as the sole respondent herein.
On March 3, 1959, Kitselman created an inter vivos trust to insure adequate financial care
for himself and his family. There was a spendthrift provision which manifested his intention
to preserve his assets from the reach of creditors. The net income of the trust was to be used
for the reasonable support of the Kitselman family during the lifetime of the settlor, and to
pay the debts incurred by the settlor and his family. The trust was irrevocable and the settlor
waived all right and power to alter or amend the trust indenture.
Kitselman transferred all his assets to the trust. The trust was irrevocable during his
lifetime, and upon his death, the trustees were to pay over all the trust's assets to the estate of
the grantor.
The trustees were Jack Streeter, the Nevada Bank of Commerce, and Mr. Kitselman. The
trust assets at this time were of a value of approximately $150,000.
Mr. Streeter and Mr. Johnston of the Trust Department of the Nevada Bank of Commerce
contacted all the Kitselman creditors and assured them of payment. They evaded an estimated
fifteen law suits thereby. They arranged for loans from the Nevada Bank of Commerce
totaling over $101,000, which was used to pay off the creditors. The trustees then arranged a
budget for the Kitselmans to live on; figured and paid their taxes; repaid these and other
loans to the bank; and paid off all loans on the Kitselman's insurance policies, paid the
delinquencies thereon, and got them reinstated.
Kitselmans to live on; figured and paid their taxes; repaid these and other loans to the bank;
and paid off all loans on the Kitselman's insurance policies, paid the delinquencies thereon,
and got them reinstated. The record shows a tremendous amount of work on the part of Mr.
Streeter and Mr. Johnston in the straightening out and the handling of the Kitselman affairs.
At Mr. Kitselman's request, an advisory board was set up to pass upon the validity of the
claims presented to the trustees for payment, and the personal expenses of the Kitselmans.
This board included the three trustees and later, at the request of the trustor, there were added
Tilli Botti, and Dallas Seevers, as advisory trustees. To defray their losses of business while
attending these meetings, all board members except the bank received $10 per meeting,
which amount was later raised to $35.
Mr. Kitselman died in August of 1960. At his death the trust corpus was over $1,200,000,
and his estate was valued at over $2,000,000. Thus the living trust had an existence of a little
over seventeen months.
The trustees attempted to submit their final accounting to the executors of the Kitselman
estate, but this was refused. After some transactions whereby stock was sold and the bank
loans paid off, this action was commenced praying for the allowance and settlement of the
trustees' accounts, for allowance and payment of trustees' fees and attorney fees, for leave to
transfer the balance of the trust estate over to the executors of the last will of Donald C.
Kitselman, deceased, and for the trustees' discharge of their trust. The bank relinquished its
right to over $34,000 in trustee's fees as set up by the trust instrument, and elected to accept a
trustee's fee of $9,576.95, and the estate was to deposit all its funds with the bank, thereby
guaranteeing it greater remuneration as a depository.
Mr. Streeter received $175 as a member of the advisory board
1
for meetings thereof, but
received no fee for his activities as a trustee.
____________________

1
Appellants have much to say about this advisory board; that there is no provision in the trust agreement
for an advisory board; and that the matters hereinafter discussed concerning payment of fees to the advisory
board for attending meetings can refer only to the trustees actually created by the trustor. We do not accord this
his activities as a trustee. He also received no fee as attorney for the living trust after the
death of Mr. Kitselman. His complaint claims $24,098.73 as trustee fees up to and including
January 11, 1964; and $416.66 per month until settlement of the final account. The complaint
also seeks $4,496.00 in legal fees, plus $55.31 in costs, and prays for an allowance of $50 per
hour for legal fees to be furnished until the account is settled.
The trial court ordered the executors to accept the final account, and awarded the bank
trustee fees of $9,576.95, which appellants do not contest. The court also awarded Mr.
Streeter $5,050.00 in legal fees, and $55.31 in court costs, and $5,600.00 in trustee fees. From
the award to Mr. Streeter, this appeal is taken.
Two assignments of error are asserted: (1) that it was error to award any fees to Mr.
Streeter as trustee; and (2) that it was a like error to award any fees to Mr. Streeter as attorney
for the trustees of the living trust.
The trust instrument, after providing for fees to the corporate trustee on a percentage basis,
provided: The other two trustees shall be paid a fair and just compensation for their services
rendered. The other two trustees were Mr. Streeter and the settlor-beneficiary Donald C.
Kitselman. The trust agreement further provided:
Grantor recognizes that Jack Streeter is an attorney at law and shall act as such attorney
for this trust estate, and shall be entitled to charge and be paid for all business done by him as
attorney for this trust estate, in the same manner as if he were not a Trustee.
* * * * *
Upon the death of Grantor, this trust shall terminate and the remaining trustees or
trustee shall pay and distribute all trust income and property to the estate of the Grantor.
____________________
any great significance. About May 14, 1959, at the request of the settlor an advisory board of trustees was
created. It was felt that they should be compensated, and at a meeting of May 21, 1959, a fee of $10 per meeting
was fixed to be paid to the board, excepting the corporate trustee. Virtually all the work was done between
meetings by the corporate trustee and Mr. Streeter. They prepared the agenda for the advisory board meetings,
which consisted of a mere presentation of what had been done, for the general approval of the advisory board.
and the remaining trustees or trustee shall pay and distribute all trust income and property to
the estate of the Grantor. * * *
The trial court's findings and reasoning in making the order allowing fees appear fully
from its decision, from which we quote the following:
That JACK STREETER is entitled to be awarded attorneys fees for all legal services
rendered subsequent to the death of DONALD C. KITSELMAN on August 5, 1960, and that
said legal services for all purposes herein are confined to those performed in connection with
the instant action and accounting. The record reveals without contradiction that STREETER
has spent at least 130 hours to date of hearing (August 24, 1964) as an attorney and that a
reasonable hourly fee should be set at $35.00 per hour or the sum of $4,550.00. Additionally,
he is entitled to attorney fees of $250.00 for the one day hearing in Court plus the additional
$250.00 for the Answering Brief filed herein subsequent to the hearing, for a total in all of
$5,050.00. Additionally, STREETER is entitled to fee as Trustee for services rendered before
DONALD C. KITSELMAN'S death (March 3, 1959, to August 5, 1960) for a total of 1,500
hours and for Trustee's fee since the death of DONALD C. KITSELMAN for a period of over
four years estimated (by Streeter and Mr. Johnson [trust officer of the bank trustee] at
approximately 500 hours, AND THAT A REASONABLE VALUE FOR THESE SERVICES
AFTER GIVING DUE CONSIDERATION TO THE FOLLOWING IS AS HEREINAFTER
SET FORTH:
(a) The value of the trust estate as of date of its creation March 15, 1959, estimated value
was $150,000.00 which has now been increased to $1,280 000.00
[2]
plus $940,954.00 which
is not part of the trust assets but part of the decedent's estate totaling in all $2,220,923.84 at
the present time.
(b) The amount of capital and income received and disbursed by the trustees.
(c) The wages or salary customarily granted to agents or servants for performing work
in the community.
____________________

2
This large increase is due in the main to sale of the stock of a family corporation in Indiana.
agents or servants for performing work in the community.
(d) The success or failure of the administration of the trustees.
(e) The amount of risk and responsibility assumed; he risked his professional reputation
by assuring numerous creditors that they would be paid; he assumed the risk of being
responsible for what is now a sizeable estate; he assumed the responsibility for two adults and
three minor beneficiaries for a period of about 16 months during DONALD C.
KITSELMAN'S life time. Without relating the facts the personal and financial problems
facing this family at time of creation of trust were great with STREETER being burdened
with the personal problems of this family as well as the financial end.
(f) The time consumed in carrying out the trust the record revealing (uncontradicted) that
STREETER spent approximately 2000 hours in his capacity as trustee since the formation of
this trust.
(g) The custom in the community as to allowances to trustees by settlors or courts as to
charges exacted by trust companies and banks; * * *.
(h) What STREETER has received to date for services prior to DONALD C.
KITSELMAN'S death as reflected in the Bank's accounting to-wit:
Here the court lists three aggregate items in the respective sums of $750, $3,343.52, and
$1,000 for professional services.
In this connection it is noted that all of said sums (except the Advisory Board meetings)
were paid and specifically designated throughout for his professional legal services and not
for services as trusteeso that STREETER has never been actually compensated for his
services as trustee and it is unreasonable to assert that the $175.00 sum should be considered
payment in full for such services in this case; in this connection the Court admittedly has had
some difficulty in separating Mr. Streeter's services as attorney and as trustee (a certain
amount of intermingling necessarily must exist) both before and after DONALD C.
KITSELMAN'S deathwhich will be given due consideration by the Court in setting its
trustee fee; Streeter's fee as trustee is generally established by the trust agreement, i.e.,
'shall be paid a fair and just compensation' the Nevada Bank of Commerce fee is set
separately on percentage basis.
deathwhich will be given due consideration by the Court in setting its trustee fee; Streeter's
fee as trustee is generally established by the trust agreement, i.e., shall be paid a fair and just
compensation' the Nevada Bank of Commerce fee is set separately on percentage basis. The
Court will allow $200.00 per month for the 16 months of KITSELMAN'S life March 3, 1959,
to August 5, 1960, or $3,200.00 and $50.00 per month for four years after death or $2,400.00
for a total of $5,600.00. Court costs in the sum of $55.31 disbursed by STREETER in
connection with this action should be reimbursed.
It seems clear that the trial court took into consideration the usual criteria for fixing
attorney fees. See Sarman v. Goldwater, Taber and Hill, 80 Nev. 536, 396 P.2d 847.
All fees for legal services were limited by the court to services performed after the death of
Kitselman, namely, those connected with the instant action and accounting.
[Headnote 1]
The matters determined by the court were matters of fact, in which this court has no
disposition to interfere if finding substantial support in the record. We think it is clear that the
record accords such substantial report.
[Headnotes 2-5]
It may be said to be the general rule that a trustee is entitled to compensation unless he
voluntarily serves without pay or waives his right to compensation. The amount of the
compensation is fixed either by the terms of the trust instrument, by contract between settlor
and trustee, by statute or by court action. Bogert, Trusts and Trustees, 2d Ed. (1962) 975, at
280-282. Here the trust instrument itself provided that the trustees should receive fair and just
compensation. Our own statutes on the administration of trusts provide, NRS. 153.070: On
the settlement of each account of a trustee the court shall allow the trustee his proper
expenses and such compensation for services as the court shall deem just and reasonable. * *
* The posture of the matter below was the submission of the trustee's final account of the
trust, so that it was entirely in order for the court to fix fees.
trust, so that it was entirely in order for the court to fix fees. Bogert, 977, applies to the
court's award of compensation the general rule so often applied to all factual matters by this
court, to wit, that the lower court's award will not be set aside on appeal if there is
[substantial] evidence to support the award. The text then proceeds to cite factors that may
be influential in enabling the court to reach a proper conclusion as to the appropriate amount
to be allowed. The court below applied virtually all the factors named in the text.
[Headnote 6]
Appellants submit numerous authorities to the effect that if the trustee's fees as provided in
the trust instrument or by agreement are unsatisfactory to the trustee, his single remedy is to
decline to act. He may not continue to act as trustee and then claim a higher award. We may
concede this rule for the sake of argument. However, appellants do not succeed in a proper
application of this rule to the facts of the case. They cite the minutes of one of the meetings of
trustees in which it is stated that the trustees were to be allowed $10 for each meeting they
attended. They then cite the minutes of a later meeting showing that this amount was raised to
$35. They then assert that the acceptance of this sum was a waiver of any demand for a
greater sum. Under the arrangement Mr. Streeter would have been allowed an aggregate sum
of $175 for his fees as trustee. As noted above, the trial court held that this is entirely
unreasonable, and we agree. The appellants contend that the provisions of the trust instrument
governing the fees to be paid the trustees was superseded by a later agreement that the
trustees were to receive $10 for each meeting (which was subsequently increased to $35 per
meeting). The record does not support them. There is no evidence to show that the fixed
compensation for each meeting was to displace the trust provisions that the trustees shall be
paid a fair and just compensation for their services.
Whether or not the trust agreement provided for an advisory board of trustees, the
settlor-beneficiary requested that two of his friends act in an advisory capacity and this was
done.
capacity and this was done. As they were compelled to absent themselves from their
occupations to attend the meetings, it was considered proper that they be compensated, and it
cannot be gainsaid that their approval of expenditures and items of such nature was a salutary
procedure, and satisfied any doubts in the trustor's mind as to the propriety of disbursements
by the trustees.
[Headnote 7]
Under the specific provisions of the trust agreement the propriety of awarding just and
reasonable compensation to the trustees and the propriety of awarding legal fees to the
attorney representing the trust is, we think, beyond question.
Thompson, J., and Mowbray, D. J., concur.
Honorable John C. Mowbray, of the Eighth Judicial District, to sit in his place.
____________
81 Nev. 186, 186 (1965) Fox v. Fox
ELLENA FOX, Appellant, v.
ABE FOX, Respondent.
No. 4812
April 21, 1965 401 P.2d 53
Appeal from the Eighth Judicial District Court, Clark County; David Zenoff, Judge.
Divorce action. The trial court granted a divorce to the wife who appealed from that
portion of amended divorce decree making disposition of the community property and from
the amount of alimony and attorneys' fees awarded and the assessment of attorneys' fees and
costs by the court. The Supreme Court, Badt, J., held that husband failed to sustain burden of
showing that moneys deposited in community account were received from sources other than
community business and amount which was unaccounted for was to be considered in fixing
good will value of community business.
Affirmed in part, reversed in part, and remanded for a limited new trial.
81 Nev. 186, 187 (1965) Fox v. Fox
Foley Brother's, of Las Vegas, for Appellant.
Morton Galane, of Las Vegas, for Respondent.
1. Husband and Wife.
When a court is faced with problem of finding value of a community business, husband as manager of
community assumes burden of satisfying court that moneys deposited in community account during course
of accounting year were received from sources other than community business. NRS 123.230.
Husband in management of community property occupies position of trustee for wife's share analogous to
trustee relationship of a partner to his partnership or an agent to his principal. NRS 123.230.
Husband in divorce action failed to sustain burden of showing that moneys deposited in community
account were received from sources other than community business and amount which was unaccounted
for was to be considered in fixing good will value of community business. NRS 123.230.
It was function of trial court resulting from facts adduced and expert testimony of accountants or other
experts in field of business and finance to fix value of good will of community business.
Trial court was not compelled to make an exact equal distribution to parties of either community property
itself or value thereof. NRS 125.150, subd. 1.
6. Divorce.
Award of $100 per year alimony to wife was not a breach of trial court's discretion in view of other
provisions made for division of community property where trial court's order reserved jurisdiction to
modify decree. NRS 125.150, subd. 1.
Trial court did not abuse its discretion in ordering costs of litigation paid out of community property
before division thereof. NRS 125.150, subd. 1.
8. Divorce.
Award of $5,500 attorney's fees to wife who was granted divorce was not inadequate. NRS 125.150,
subd. 2.
9. Divorce.
Wife was not entitled to attorney's fees on appeal from divorce decree making disposition of community
property.
OPINION
This is the plaintiff wife's appeal from the portion of the amended decree of divorce
entered on May 13, 1964, making disposition of the community property of the parties;
and from the amount of alimony and attorneys' fees awarded, and the assessment of
attorneys' fees and costs by the court."
81 Nev. 186, 188 (1965) Fox v. Fox
making disposition of the community property of the parties; and from the amount of alimony
and attorneys' fees awarded, and the assessment of attorneys' fees and costs by the court.
The merits of the divorce are not in question, and the principal issue, the disposition of the
community property of the parties, was, so far as the trial court was concerned, almost
entirely a matter of accounting. Accordingly, the court made a reference to K. Jack Rudd, a
certified public accountant, as special master.
A hearing was had by the master, a transcript of which, comprising 105 pages, is a part of
the record on appeal. Prior to this, an account had been made by Messrs. Conway, Moe and
Hibbs, certified public accountants, in behalf of the wife. A report was filed by the master,
which, under the difficulties attending the submission of proofs, appears to be as full and
complete as was possible under the circumstances. The report concerned itself mainly with
determining the value of the community property of the parties. Objections to the master's
report and account were filed and a further hearing had before the trial court. The appeal, as
above noted, was taken by the wife from the trial court's decree adopting the master's report
as to the value of the community property and to sundry other orders made by the court.
Background material must first be considered. The parties were married in April, 1935.
Two children were born of this marriage, a son and daughter, both being now of legal age.
The husband and wife established Foxy's in Las Vegas which is a restaurant and
delicatessen featuring kosher foods. The husband, as general manager with the assistance of
the wife who worked as a cashier, hostess and at other odd jobs, built the business in a short
length of time into a thriving enterprise. Later, both children assisted in the business, and the
son at the time of the proceedings below had taken over some of the management duties of
the husband.
The business of Foxy's Restaurant was operated through a holding company, Mission
Enterprises, Inc., in which Mr. and Mrs.
81 Nev. 186, 189 (1965) Fox v. Fox
in which Mr. and Mrs. Fox own all the capital stock. During the marriage the husband made
various investments in real estate and securities. He made it a practice to transact all business,
personal and corporate, through a single bank account maintained under the name of Mission
Enterprises, Inc. In other words, all money received was deposited in this bank account
whether it was the profits of Foxy's, money derived from real estate transactions, or personal
loans to Mr. Fox. All payments on real estate, all repayment of loans and all money loaned
were paid out of this account. All the property of Mission Enterprises, Inc., is admitted to be
community property.
Mrs. Fox commenced her action in April, 1962, as one for separate maintenance and the
parties separated about this time. The husband answered and counterclaimed for divorce. The
wife replied to the counterclaim and subsequently amended her complaint to ask for an
absolute divorce. Mrs. Fox, after commencing the action, employed the certified public
account firm of Conway, Moe and Hibbs to examine all books and records and obtain any
information available. This firm analyzed the books and records of Mission Enterprises, Inc.,
through which Mr. Fox conducted the restaurant business and all other transactions, and made
a report dated January 15, 1963, which is not contained in our record.
1
The period covered
by this report was January, 1962, through November 30, 1962. It was generally agreed that
the year 1962 would be used to determine the extent and nature of community property and
the value of Foxy's Restaurant. No claim is made of any failure on the part of respondent to
cooperate in presenting all available material that would throw any light upon the value of the
community property, nor is his credibility attacked in any respect. The main criticism leveled
against him is his failure to keep accurate accounts of the sources of the money deposited in
the one general banking account of Mission Enterprises, Inc., which conducted the
business of Foxy's Restaurant, to identify such deposits.
____________________

1
The Conway, Moe and Hibbs report of January 15, 1963, and their subsequent report of July 3, 1963, more
fully appeared from the treatment of such reports in the master's report filed July 12, 1963, and his
supplementary report of July 30, 1963.
81 Nev. 186, 190 (1965) Fox v. Fox
banking account of Mission Enterprises, Inc., which conducted the business of Foxy's
Restaurant, to identify such deposits. The only record kept of the sources of such deposits was
on the deposit slips. Some of these had been lost in the confusion attending the reconstruction
of the premises. No accusation of a deliberate destruction of these records is leveled at the
respondent.
The importance of determining the source of the deposits lies in the fact that if the deposits
of undetermined source came from the profits of the restaurant, they would, under accepted
formulas, substantially increase the value of the goodwill of the business.
During the proceedings before the district judge, Mr. Conway testified concerning the
above report made by his firm. He stated that the deposits in the bank account of Mission
Enterprises, Inc., exceeded recorded receipts from business purposes less recorded cash
expenses for business purposes in the amount of $312,764. He further testified that
expenditures in the amount of $142,367 were made by check, recorded as non-business
expenditures, and charged to the ledger account of Notes Payable, Abe Fox. Another
$212,717 was expended by checks for non-business purposes which were charged to an
account in the general ledger entitled, Cash Clearing. The wife's counsel then asked Mr.
Conway if he was able to identify the source of bank deposits which totaled $312,764. Mr.
Conway replied that: None of the bank deposits as such were identified in detail as to their
source. The $312,764 stated here is merely an arithmetical computation of the total bank
deposits less the recorded figure of available cash for bank deposits from business sources.
The husband's counsel, in cross-examining Mr. Conway, stated the question involved when
he was asking a question. Then the real problem is for you to find out what a particular entry
under the general clearing account meant in terms of the source from where Mr. Fox got the
money?
Mr. Rudd, the appointed master, reviewed the books and records of Mission Enterprises,
Inc., as Conway, Moe and Hibbs had done before making their report.
81 Nev. 186, 191 (1965) Fox v. Fox
Mr. Rudd made his report which contained an evaluation of the real property of the parties,
the securities and the business of Foxy's Restaurant.
At the hearing before the master, counsel for Mrs. Fox examined Mr. Fox as to the source
of these nonbusiness deposits. Mr. Fox testified that the deposit slips that would have
identified these deposits were lost, misplaced or destroyed during remodeling of the
restaurant. He stated that many of these unidentified deposits were from cash exchanges; that
is, he had previously loaned money to another and the deposit was the repayment of this loan.
An example of such a transaction is Mr. Fox's dealings with Mr. Bershin. Mr. Fox testified
that Bershin loaned him $10,000 in 1962 and that this sum was subsequently paid back.
However, Mr. Fox could not remember why this $10,000 was borrowed or the date of such
transaction. Mr. Fox simply stated that this transaction was just personal, just cash exchange.
I loaned him, he loaned me. Mr. Fox then went on to identify much of the previously
unidentified non-business deposits in the same manner.
After the hearing before the master, Conway, Moe and Hibbs made another report
analyzing the non-business deposits and disbursements in light of the master's report and the
hearing before the master. Part of this report is as follows:
From the foregoing it is determined that for the year 1962 total deposits in the corporate
bank account exceeded deposits from known business sources in the amount of $336,616.88.
It is pointed out again that the analysis and identification of the disbursements does not in
any way specifically identify the excess deposits. There is no detailed record available to our
knowledge that will specifically designate or describe the daily deposits. They are usually
made in round amounts of hundreds or thousands of dollars without any specific correlation
to the daily receipts of the business. Mr. Fox and his representatives have made
representations to the effect that these excess deposits were derived in part from third party
deposits later identified on the disbursement thereof under the 'Cash Exchange' category
referred to above.
81 Nev. 186, 192 (1965) Fox v. Fox
later identified on the disbursement thereof under the Cash Exchange' category referred to
above. If we accept this rather broad assumption, we still come to the following conclusion:
Total deposits in excess of those identified as from business sources 336,616.88
Less: Cash exchange' disbursements $212,910.51

___________

Balance still unidentified $123,706.37
Mr. Conway felt that since $123,706.37 was not identified as to source, it could easily be
attributed to additional profits from Foxy's. And this additional increase would greatly
increase goodwill though the master did not consider this unidentified amount as business
receipts.
Mr. Rudd then made a supplemental report wherein he directed his attention to Conway's
claim that $123,706.37 should be attributed to business sources, and concluded that this
amount should not be considered in evaluating the goodwill on the books of Mission
Enterprises, Inc. This report further stated that the Conway, Moe and Hibbs report does not
show how these unidentified receipts are related to the business of Mission Enterprises, Inc.,
which operates Foxy's Restaurant. The above conclusion is supported by the fact that the
sales on the books of Foxy's for 1962 were the same as the sales reported to the Nevada Tax
Commission for the same period. And since the sales of Foxy's were reported to the Nevada
Tax Commission by a reliable accounting firm, the master rejected the possibility that any of
the unidentified receipts were business income even though Mr. Fox had not identified the
source of such deposits.
In its decision the court adopted the master's report and findings in total and held that the
explanation by the defendant as to his financial transactions is a reasonable explanation, not
unusual in the growth of a business that was originally undercapitalized.
The contentions of appellant's counsel, supported by appellant's accountants, are in all
respects but one
2
in substantial accordance with the contentions of respondent's counsel,
the master appointed by the court, and the court's conclusions.
____________________

2
But see other points raised as hereinbelow discussed.
81 Nev. 186, 193 (1965) Fox v. Fox
substantial accordance with the contentions of respondent's counsel, the master appointed by
the court, and the court's conclusions. This one exception is the disposition or allocation of
the item of $123,706.37, being the item generally referred to as the one whose source is
unidentified. As above noted, appellant urges that it should be allocated to additional profits
from Foxy's Restaurant. Appellant insists that this is not a question of exercise of discretion
by the trial court but a case in which the trial court was required to find under the law that it
must be allocated to such business profits by reason of the failure of respondent to keep books
and records definitely showing that it had a different source, such as being a part of his
numerous real estate transactions or part of his constant practice of borrowings and lendings
referred to generally as cash exchanges. It is especially emphasized that Fox not only failed
to keep books of account that would identify the source of deposits in the general account, but
in an extensive cross-examination he was unable to identify the source of any part of said sum
of $123,706.37.
[Headnote 1]
The precise legal issue is this. When a court is faced with a problem of finding the value of
a community business, must the husband as manager of the community assume the burden of
satisfying the court that moneys deposited in the community account during the course of the
accounting year were received from sources other than the community business. We have
referred to the statutory vesting in the husband of complete control of the community
business. Fairness demands that such control carry with it the burden of explanation,
particularly in a case like the present where an evaluation must be made of a community
business. Where large sums of money find their way into the community bank account and
are claimed by the husband to have their source in transactions other than the particular
community business, his is the duty of explanation and proof. The master refused to consider
the unidentified deposits of $123,706.37 as receipts from Foxy's and therefore evaluated the
goodwill of Foxy's Restaurant at $50,000.
81 Nev. 186, 194 (1965) Fox v. Fox
Restaurant at $50,000. He reasoned that if these unidentified deposits were not shown to be
attributable to the business of Foxy's Restaurant, he was justified in excluding it. But this
treatment ignored the legal requirement that the burden of explanation was upon the husband;
and the lower court fell into error by adopting the master's recommendation in this regard.
[Headnote 2]
This court in Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355, said: Apparently no
attempt was made by him to keep the separate and community property segregated, and that
now makes it impossible to determine what is community and what is separate property. The
rule under such circumstances is that such intermingled properties are considered community
properties, and we apprehend the basis of this rule to be that the properties have become so
mixed and intermingled that it is not longer possible to determine their source. It is the duty
of the husband, as the manager of the community property, to keep the community and
separate property segregated. Barrett v. Franke, 46 Nev. 170, 208 P. 435. (Emphasis
supplied.) Although that case is not completely in point, involving as it does the
intermingling of community property with separate property of the husband, the analogy of
Ormachea becomes complete when, as here, the husband intermingled moneys of outside
transactions with moneys resulting from the profits of the operation of Foxy's Restaurant, and
when the court approved the husband's casual management of the community by refusing to
consider the unidentified deposits of $123,706.37 as receipts from Foxy's in computing the
restaurant's goodwill. This conclusion is strengthened by the provisions of our statute placing
complete control of the community property in the hands of the husband (NRS 123.230). And
it is not uncommon to put the burden on the husband to prove something he claims when it
involves community property which he controlled and managed. See Spector v. Spector, 94
Ariz. 175, 382 P.2d 659; Uchello v. Uchello, 220 La. 1061, 58 So.2d 385; Sciambra v.
Sciambra, 153 So.2d 441 (La.App.
81 Nev. 186, 195 (1965) Fox v. Fox
1963); Beatty v. Vining, 147 So.2d 37 (La.App. 1962). It is further supported by the fact that
in such management of the community property his position is that of a trustee for the wife's
share analogous to the trustee relationship of a partner to his partnership or an agent to his
principal. Jorgensen v. Jorgensen, 32 Cal.2d 13, 193 P.2d 728; Fields v. Michael, 91
Cal.App.2d 443, 205 P.2d 402; Spector v. Spector, supra. The propriety of adopting the
conclusion of a trusteeship is strengthened by the fact that the parties separated in April,
1962. The year in which the value of Foxy's Restaurant is questioned was the year 1962, and
the duty of the husband to keep accounts was challenged at the time of the separation in the
spring of that year when Mrs. Fox's action was commenced.
[Headnote 3]
The result of our view is that a goodwill value for Foxy's Restaurant must be fixed not in
the sum of $50,000 as recommended by the master and adopted by the trial court, but in some
sum in excess thereof resulting from the addition of the $123,706.37 to the 1962 business
receipts.
[Headnote 4]
It is not the province of this court to fix the value of such goodwill or to apply any
particular formula for the purpose. This is the function of the trial court resulting from the
facts adduced and the expert testimony of accountants or other experts in the field of business
and finance.
We then approach the division of the community property as made by the court, and also
the matter of its allowance of alimony. This is controlled by the provisions of subsections 1
and 2 of NRS 125.150, reading as follows:
1. In granting a divorce, the court may award such alimony to the wife and shall make
such disposition of the community property of the parties as shall appear just and equitable,
having regard to the respective merits of the parties and to the condition in which they will be
left by such divorce, and to the party through whom the property was acquired, and to the
burdens, if any, imposed upon it, for the benefit of the children.
81 Nev. 186, 196 (1965) Fox v. Fox
whom the property was acquired, and to the burdens, if any, imposed upon it, for the benefit
of the children.
2. Whether or not application for suit money has been made under the provisions of NRS
125.040, the court may award a reasonable attorney's fee to either party to an action for
divorce if attorneys' fees are in issue under the pleadings.
[Headnote 5]
The court was not compelled to make an exact equal distribution to the parties of either the
community property itself or the value thereof. Yet the court appears to have directed its
purpose to that end in what to it seemed a realistic manner. It first found the value of the
community property comprising the restaurant business, including goodwill, at $50,000, and
sundry parcels of real estate (subject to certain obligations) and securities. These properties it
distributed to the husband but allotted to the wife one-half of the determined value thereof,
plus 10% of such value to compensate for or equalize the anticipated appreciation of the
value of the properties allotted to the husband, pursuant to the court's opinion that the wife
had not the training, experience, or ability to build up an estate of her own. The figure thus
arrived at for payment to the wife was the sum of $96,078.75. The court made such payments
secure through certain deposits in escrow, through insurance on the husband's life and further
provided for the furnishing of an automobile to the wife by the husband. It also distributed to
the wife the household furnishings, furniture and appliances as her sole property. However,
the court provided that the sum thus payable to the wife should be paid $5,000 in cash within
30 days from the date of filing of the decree and the balance, plus interest at 3% per annum, at
the rate of $1,000 per month.
These provisions must be analyzed in light of the fact that the court had theretofore
ordered temporary alimony for the wife in the sum of $800 a month in accordance with
proofs submitted as to her necessities, and the further fact that the court allowed permanent
alimony in the sum of $100 per annum. If, then, the wife had available $1,000 a month plus
one-twelfth of the $100 annual alimony, she would have available $1,00S.33, from which
she would have to expend as living expenses $S00 per month, leaving $20S.33 for
investment.
81 Nev. 186, 197 (1965) Fox v. Fox
had available $1,000 a month plus one-twelfth of the $100 annual alimony, she would have
available $1,008.33, from which she would have to expend as living expenses $800 per
month, leaving $208.33 for investment. Such entire sum (subject to some variation by reason
of the $5,000 down payment and by reason of the accrual of 3% interest allowed by the court)
would exhaust her entire allotment of community property in approximately nine years.
During this period she would accumulate, at the rate of $208.33 a month, the additional sum
of about $22,500. The 3% interest allowed would provide $2,732.36 at the beginning of the
payments (following the $5,000 down payment);
3
with diminishing interest thereafter as the
monthly payments were made. In connection with this discussion, it should be remembered
that the court reserved jurisdiction to modify the allotments to the wife. There should also be
taken into consideration the fact that the parties had been married for 29 years and that the
divorce had been granted to the wife by reason of the fault of the husbandmental cruelty.
We also have in mind the fact that the court had originally allowed no alimony at all, but later
modified its decree to allow $100 per year on the wife's motion to modify the decree. While
we have not lost sight of the husband's lucrative business as demonstrated by his receipts for
the year 1962, we must credit the trial court with having in mind first that 1962 was a year of
great economic expansion in Las Vegas and also that the restaurant business in that city is a
highly competitive business and must face possible accompanying hazards.
[Headnote 6]
All in all, it is apparent that the trial court worked out its decree after careful consideration
of all elements and, although we would have been disposed to make a higher allowance of
alimony had we been the triers of fact, we are disinclined to hold that the meager amount of
alimony allowed was a breach of discretion in view of the other provisions made for
division of the community property, except for the matter of evaluating the goodwill of
Foxy's Restaurant after proper allocation of the 1962 receipts of $123,706.37.
____________________

3
Appellant concedes that the wife would receive as interest the first year 3% of $91,078.75, * * * or the sum
of $3,632.34.
81 Nev. 186, 198 (1965) Fox v. Fox
of the other provisions made for division of the community property, except for the matter of
evaluating the goodwill of Foxy's Restaurant after proper allocation of the 1962 receipts of
$123,706.37.
The court must have considered the effect of drawing out of the business not only the
$1,000 monthly payments provided for but an additional sum of $800 a month alimony as
insisted upon by counsel for the wife. The payment of any moneys at all to the wife depends
upon the successful maintenance of Foxy's Restaurant. The destruction of that business by the
withdrawal of an unreasonable monthly sum would afford no benefit to either party.
Apparently the trial court was trying to avoid such possibility. The court's order reserving
jurisdiction to modify the decree with regard to payments to the wife was an indication that
favorable consideration should be given to a motion for modification if future circumstances
warrant it.
[Headnote 7]
Costs of the litigation included payments as follows: Thomas Taney, $500; Nelson
Conway, $2,783; Rudd and Rudd, $4,248; Foley Brothers, $5,500; Morton Galane, $5,500:
Total $18,531. The court ordered these sums paid out of the community property before the
division thereof. We find no abuse of discretion in such action.
[Headnote 8]
Appellant also complains that the $5,500 attorney's fees awarded to the wife, in addition to
the original preliminary $500 fee, was entirely inadequate to pay for the services of the wife's
counsel. This also was largely in the discretion of the trial court, and we are not inclined to
say that the fee allowed was inadequate.
[Headnote 9]
Appellant also contends that additional fees should have been allowed on her appeal. No
necessity for this appears.
It follows from what has been said that the judgment must be affirmed in all respects
except for the fixing of the value of Foxy's Restaurant which must include a value of the
goodwill as affected by 1962 business receipts in the sum of $123,706.37.
81 Nev. 186, 199 (1965) Fox v. Fox
receipts in the sum of $123,706.37. On such issue the judgment is reversed and the case
remanded for a limited new trial for the purpose of taking the said sum (or such sum as may
result from said limited new trial) into account as the receipts of Foxy's Restaurant for 1962.
In remanding for such purpose this court has in mind the discretion vested in the trial court,
both in respect to a division of the community property pursuant to NRS 125.150, and also
with reference to the award of alimony. That the award, as heretofore made by the court for a
division of the community property, may well be affected by the result of this opinion was
recognized in Weeks v. Weeks, 72 Nev. 268, 302 P.2d 750.
Reversed and remanded for a limited new trial in accordance with the views herein
expressed.
Thompson, J., and Barrett, D. J., concur.
commissioned Honorable John W. Barrett, Judge of the Second Judicial District, to sit in his
place.
____________
81 Nev. 199, 199 (1965) Reynolds Electrical & Eng'g Co. v. United Brotherhood
REYNOLDS ELECTRICAL & ENGINEERING CO., INC., Appellant, v. UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION
1780, et al., Respondents.
No. 4761
April 23, 1965 401 P.2d 60
Judge.
Suit by employer to enjoin strike, work stoppage and picketing, in which labor unions, by
counterclaim, sought declaratory judgment that employer had breached its collective
bargaining agreements with various unions. The lower court entered judgment declaring that
employer had breached such agreements, and the employer appealed. The Supreme Court,
Thompson, J., held that disputes involving travel time to job sites and shift differential pay
practices were within scope of grievance and arbitration clauses of collective bargaining
agreements, none of which specifically excluded such disputes from resolution by
grievance and arbitration processes.
shift differential pay practices were within scope of grievance and arbitration clauses of
collective bargaining agreements, none of which specifically excluded such disputes from
resolution by grievance and arbitration processes.
The judgment for Sheet Metal Workers International Association, Local Union 88, is
affirmed. The judgment in all other respects is reversed.
[Rehearing denied May 24, 1965]
John W. Douglas, Assistant United States Attorney General; Morton Hollander and John
C. Eldridge, Attorneys, Department of Justice; all of Washington, D.C.; and John W. Bonner,
United States Attorney, of Las Vegas, for Appellant.
Morton Galane, and George Rudiak, of Las Vegas, for Respondents.
1. Labor Relations.
Incompatible doctrines of local law must give way to principles of federal law governing collective
bargaining agreements affecting interstate commerce. Labor Management Relations Act, 1947, 301(a),
29 U.S.C.A. 185(a).
2. Labor Relations.
National labor policy expressed by Congress and reflected by United States Supreme Court decisions
leaves little room for court intrusion except to compel arbitration made arbitrable by provisions of effective
collective bargaining agreement, or in some circumstances, to permit suit against unions for damages
resulting from breach of no-strike clause. Labor Management Relations Act, 1947, 301(a), 29 U.S.C.A.
185(a).
3. Labor Relations.
Contract grievance procedures are preferred method for settling disputes. Labor Management Relations
Act, 1947, 201(c), 203(d), 29 U.S.C.A. 171(c), 173(d).
4. Labor Relations.
Policy of national labor law will be effectuated only if means chosen by parties to settle their differences
under collective bargaining agreement is given full play.
5. Labor Relations.
Although federal law governs in cases involving collective bargaining agreements affecting interstate
commerce, state courts are not without jurisdiction to effectuate federal policy, and concurrent jurisdiction
exists unless Congress has expressly excluded state court power. Labor Management Relations Act. 1947,
301, 29 U.S.C.A. 185.
6. Labor Relations.
Statute creating federal substantive law governing collective bargaining agreements affecting interstate
commerce does not expressly exclude state power, and state court thus had jurisdiction
to entertain suit involving breach of collective bargaining agreement and to afford
remedy to effectuate federal policy or to deny all requested relief should relief sought
contravene federal policy.
not expressly exclude state power, and state court thus had jurisdiction to entertain suit involving breach of
collective bargaining agreement and to afford remedy to effectuate federal policy or to deny all requested
relief should relief sought contravene federal policy. Labor Management Relations Act, 1947, 301, 29
U.S.C.A. 185.
7. Labor Relations.
Rule of practical construction, as used in construing collective bargaining agreements, is rule of
interpretation.
8. Labor Relations.
Disputes involving travel time to job sites and shift differential pay practices were within scope of
grievance and arbitration clauses of collective bargaining agreements, none of which specifically excluded
such disputes from resolution by grievance and arbitration processes.
9. Labor Relations.
Contractual grievance and arbitration procedures may be waived or repudiated.
10. Contracts.
Arbitration provisions, which themselves have not been repudiated, are meant to survive breaches of
contract, in many contexts, even total breach.
11. Labor Relations.
Evidence that employer willingly participated in every grievance procedure instituted and that it
steadfastly maintained throughout that disputes be resolved as contractually agreed upon and not otherwise
failed to establish that arbitration under collective bargaining agreement had been waived or repudiated by
employer.
Employer's unilateral change of pay practices did not, as matter of law, constitute repudiation of its
promise to arbitrate under collective bargaining agreement.
Any indication that employer would not abide by final and binding arbitration award without approval of
Atomic Energy Commission did not, as matter of law, amount to repudiation of its promise to arbitrate
under collective bargaining agreement.
14. Arbitration and Award.
Arbitration award, if made pursuant to agreed procedures, may be enforced by suit upon award.
Suit filed by employer to enjoin strike, work stoppage and picketing by union did not constitute
repudiation of its promise to arbitrate under collective bargaining agreement, since by such action
employer sought to preserve status quo until grievances involved could be resolved by procedures
contractually agreed upon.
OPINION
The appeal is from a judgment declaring that Reynolds Electrical and Engineering Co.,
Inc. (Reynolds) breached its collective bargaining agreements with various unions,1 and
directing Reynolds to place into effect, retroactively, and maintain certain travel time and
shift differential pay practices which had been in effect before December 10, 1962.
breached its collective bargaining agreements with various unions,
1
and directing Reynolds
to place into effect, retroactively, and maintain certain travel time and shift differential pay
practices which had been in effect before December 10, 1962.
Reynolds is an employer in interstate commerce within the intendment of Sec. 301 (a) of
the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C. 185(a), and engaged
by the United States government as a cost-plus contractor in the construction, maintenance
and support activities for the Atomic Energy Commission (AEC) at the Nevada test site. The
event precipitating this litigation was a strike called and a picket line established by the
unions at the test site in April 1963. Each of the collective bargaining agreements (except
those of the Painters and Plumbers which express a purpose not to strike, but do not contain a
no-strike promise) provides that there would be no strikes and that grievances would be
handled according to a specified procedure.
2
The main question below, and here, is whether
the dispute about the interpretation and/or application of those agreements to travel time pay
and shift differential pay must be resolved by the specified grievance and arbitration
procedures. The lower court assumed the authority to exercise remedial power and resolved
the dispute on the merits. It believed it proper to do so because, in its view, the dispute was
not arbitrable and, in any event, Reynolds had waived and repudiated the grievance and
arbitration procedures. We have concluded that the judgment below must be set aside (except
as to Sheet Metal Workers Union, Local SS) because of controlling decisions by the United
States Supreme Court, to be hereinafter discussed.
____________________

1
The unions are: United Brotherhood of Carpenters & Joiners of America, Local 1780; Operative Plasterers
& Cement Masons, International Association, Local 797; International Hod Carriers & Common Laborers, Local
872; International Union of Operating Engineers, Local 12; Brotherhood of Painters, Decorators &
Paperhangers of America, Local 159; International Brotherhood of Electrical Workers, Local 357; International
Association of Bridge Structural & Ornamental Ironworkers, Local 433; United Association of Journeymen &
Apprentices of the Plumbing & Pipefitting Industry, Local 525; Sheetmetal Workers International Association,
Local 88; International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local
631.

2
See Appendix A where the relevant provisions of each agreement are set forth.
to Sheet Metal Workers Union, Local 88) because of controlling decisions by the United
States Supreme Court, to be hereinafter discussed.
When the unions called a strike and established a picket line, Reynolds immediately filed
suit to enjoin the strike, work stoppage and picketing. The unions filed responsive pleadings
and, by counterclaim, sought a declaratory judgment that the collective bargaining agreements
required Reynolds to restore the pay practices which were in effect before December 10,
1962. Reynolds filed its reply asserting, inter alia, that the controversy should be resolved
through the grievance and arbitration procedures provided for by the collective bargaining
agreements. For reasons not material here, Reynolds chose not to pursue its complaint for
injunctive relief and offered no evidence in support thereof. The case was tried upon issues
framed by the counterclaims of the unions and Reynolds' reply thereto, and resulted in the
judgment from which Reynolds has appealed. As Reynolds abandoned its complaint to enjoin
the strike, we are not faced with the issue of the power of a state court to issue an anti-strike
injunction in a Sec. 301 case. (Cf. Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, holding that in
a suit brought under Sec. 301 of the Labor Management Relations Act, the federal court is
barred from issuing an injunction against a strike over an allegedly arbitrable grievance in
violation of a no-strike agreement; McCarroll v. Los Angeles County Dist. Council of
Carpenters, 49 Cal.2d 45, 315 P.2d 322, holding that the injunctive remedial power of a state
court is available in such a case; see article by Benjamin Aaron, Strikes in Breach of
Collective Agreements, 63 Colum.L.Rev. 1027, suggesting that the United States Supreme
Court should now rule that state courts should be prohibited from granting injunctions in such
a case.) Our sole concern is whether the dispute about the interpretation and/or application of
the collective bargaining agreements to travel time and shift differential pay must be resolved
by the grievance and arbitration procedures. We turn to briefly explain the grievances.
The travel time pay dispute involves union employees of Reynolds who work at a
particular area on the Nevada test site called Area 400 or NRDS (Nuclear Reactor
Development Station). Such employees live either away from the test site and travel every
day to and from the site, or utilize lodge and boarding facilities at campsites located at
various places on the Nevada test site. For several years the employees had reported to work
at various reporting points on the test site, and Reynolds supplied transportation from the
reporting points to the job site where they were to work. The reporting points were normally
campsites. The employees were paid for the time during which they were transported from
reporting points to job sites, and this pay is the travel time pay with which this case is
concerned. None of the collective bargaining agreements specify the locations of reporting
points. The reporting points were either designated by Reynolds before a particular job started
or were agreed upon through negotiation with the unions.
Before December 1962 for basic trade employees (carpenters and joiners, plasterers and
cement masons, hod carriers and laborers, operating engineers, painters), and before March
1963 for specialty trade employees (electrical workers, ironworkers, plumbers and pipefitters,
and sheet metal workers), Area 400 was not a reporting point. Employees working at Area
400 reported to work at other places and were transported to and from, and received pay for
the time spent in traveling to and from their reporting points and Area 400. Many of these
employees reported for work at a campsite known as Camp Mercury, some distance from the
job.
In December 1962 Reynolds designated Area 400 itself as the reporting point for basic
trade employees working in Area 400, and in March 1963 did the same for specialty trade
employees working there. Travel time pay for employees who had theretofore reported to
Camp Mercury was stopped. Reynolds did so at the direction of the Atomic Energy
Commission. A campsite was not established at Area 400. A grievance resulted. The unions
contend that those employees who had previously reported at Camp Mercury and had been
given travel time pay and transportation from Camp Mercury to Area 400 and return, are
still entitled to such pay even though the reporting point was changed.
reported at Camp Mercury and had been given travel time pay and transportation from Camp
Mercury to Area 400 and return, are still entitled to such pay even though the reporting point
was changed. Reynolds does not agree.
The shift differential pay dispute concerns only Reynolds and the Teamsters Union. The
other unions do not object to the December 1962 change in practice with respect to the shift
differential pay. Before 1962 employees working the swing shift worked seven hours per day,
but were paid for eight. In December 1962 this practice was changed, and the employees were
paid on the basis of hours actually worked, with a 10% premium for employees on the second
shift, and a 20% premium for employees on the third shift. This change was suggested by
some unions for whom it was advantageous. However, the new practice was less favorable
than the old to the Teamsters, and gave rise to an additional grievance in that union.
We have stated the grievances in skeleton form. A mass of evidence was received about
the many meetings held during 1961 and 1962 between representatives of the employer, the
AEC, and the unions, pointing to the consummation of a Master Construction Industry
Agreement (MCIA); about the interest of the Secretary of Labor, the Director of the Federal
Mediation and Conciliation Service, the Chairman of the AEC, and others in the adoption of
a MCIA. Some of that evidence may be relevant to the interpretation and/or application of the
provisions of the collective bargaining agreements to the travel time pay and shift differential
pay disputes. However, we shall not refer to that evidence here, for two reasons. First,
because controlling law demands that the grievances be first submitted to and resolved by the
contractual procedures agreed upon; and, second, if we were to discuss all of the contentions
on either side resulting from the whole story, we would necessarily intimate an opinion upon
the merits, and perhaps influence the grievance and arbitration procedures to be carried out.
This would not be appropriate.
[Headnotes 1-4]
The United States Supreme Court has made it clear that Sec. 301(a) creates a federal
substantive law governing collective bargaining agreements affecting interstate commerce.
3
Textile Workers v. Lincoln Mills, 353 U.S. 448. Incompatible doctrines of local law must
give way to principles of federal law. Teamsters Local v. Lucas Flour Co., 369 U.S. 95. The
national labor policy expressed by Congress, and reflected by the decisions of the high court,
leaves little room for court intrusion except to compel arbitration made arbitrable by the
provisions of an effective collective bargaining agreement, Sinclair Refining Co. v.
Atkinson, 370 U.S. 195, or, in some circumstances, to permit a suit against the unions for
damages resulting from a breach of a no-strike clause. Atkinson v. Sinclair Ref. Co., 370 U.S.
238. Contract grievance procedures are expressly approved by Congress as a preferred
method for settling disputes, L.M.R.A. Sec. 203 (d), 29 U.S.C. 173 (d); 201(c), 29 U.S.C. 171
(c); Republic Steel Corp. v. Maddox, 379 U.S. 650, and the policy of the national labor law
will be effectuated only if the means chosen by the parties to settle their differences under a
collective bargaining agreement is given full play. Steelworkers v. American Mfg. Co., 363
U.S. 564.
[Headnotes 5, 6]
The cited cases were litigated in federal courts. The instant matter was litigated in our state
court. Though federal law governs, it does not follow that state courts are without jurisdiction
to effectuate the federal policy. Concurrent jurisdiction exists unless Congress has expressly
excluded state court power. Claflin v. Houseman, 93 U.S. 130; Packing House Workers v.
Needham Packing Co., 376 U.S. 247; McCarroll v. Los Angeles County Dist.
____________________

3
Sec. 301(a) of the L.M.R.A. of 1947, 61 Stat. 156, 29 U.S.C. 185(a) reads: Suits for violation of contracts
between an employer and a labor organization representing employees in an industry affecting commerce as
defined in this chapter, or between any such labor organizations, may be brought in any district court of the
United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to
the citizenship of the parties.
County Dist. Council of Carpenters, 49 Cal.2d 45, 315 P.2d 322. Section 301 does not
expressly exclude state power. Thus, our state court had jurisdiction to entertain this suit and
afford a remedy to effectuate federal policy or to deny all requested relief, should the relief
sought contravene federal policy. As before stated, the request for an injunction against the
strike was abandoned by the employer and we need not, therefore, decide whether the
injunctive remedial power of a state court is available in a Section 301 case. With these
foundation principles in mind, we turn to resolve the issues raised by the counterclaims of the
unions and Reynolds' reply thereto, viz., are the grievances here involved arbitrable and, if so,
did the employer either waive the contract settlement procedures or frustrate them by
repudiation?
1. Arbitrability. The lower court found that the contract provisions governing the pay
practices here in question were not within the coverage of the grievance and arbitration
clauses. It relied upon the rule of practical construction, noting that the pay practices which it
ordered to be resumed had been in effect for many years under collective bargaining
agreements containing the same pertinent language as the agreements now in issue. It
reasoned that the meaning of the pertinent contract provisions had thereby become fixed and
certain and, therefore, were not subject to the grievance procedures. Accordingly, the court
concluded that the unilateral change of pay practices by Reynolds was a breach of the
contracts authorizing resort to the court's remedial powers. In our view the lower court's
position in this regard is not supportable.
As before indicated Congress has encouraged employers and unions to work out a
desirable method for settlement of grievance disputes arising over the interpretation and
application of collective bargaining agreements. L.M.R.A., Sec. 203(d), 29 U.S.C., Sec.
173(d). That expression of national policy has been, from time to time, further defined by the
United States Supreme Court, and standards developed for determining arbitrability. United
Steelworkers v. American Mfg. Co., 363 U.S. 564; United Steelworkers v. Enterprise Wheel
& Car Co.,
Car Co., 363 U.S. 593; United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574.
The trilogy of decisions reveals the Supreme Court's intention to preclude court intervention
into the merits of a labor dispute where grievance and arbitration procedures have been
contractually provided for.
In the American Manufacturing case, supra, at page 569 the court stated: * * * When the
judiciary undertakes to determine the merits of a grievance under guise of interpreting the
grievance procedure of collective bargaining agreements, it usurps a function which under
that regime is entrusted to the arbitration tribunal. Further it said [page 568]: The courts,
therefore, have no business weighing the merits of the grievance, considering whether there is
* * * particular language in the written instrument which will support the claim. The
agreement is to submit all grievances to arbitration, not merely those which the court will
deem meritorious. The processing of even frivolous claims may have therapeutic values of
which those who are not a part of the plant environment may be quite unaware.
In Warrior & Gulf, supra, [page 582], the court wrote: An order to arbitrate the particular
evidence should not be denied unless it may be said with positive assurance that the
arbitration clause is not susceptible to an interpretation that covers the asserted dispute.
Doubts should be resolved in favor of coverage. In Enterprise Wheel and Car Co. [page
597], supra, appears this language: When an arbitrator is commissioned to interpret and
apply the collective bargaining agreement, he is to bring his informed judgment to bear in
order to reach a fair solution of a problem. This is especially true when it comes to
formulating remedies. There the need is for flexibility in meeting a wide variety of
situations.
[Headnote 7]
In the instant matter it may not be said with positive assurance that the coverage clauses of
the agreements before us are not susceptible to an interpretation that covers the disputes.
covers the disputes. The coverage provisos are broad in scope,
4
and the contractual
arrangements about travel time pay are, we believe, subject to interpretation,
5
simply
because none of the agreements, except the Sheet Metal Workers agreement, expressly, or by
necessary implication, preclude the employer from designating Area 400 as a campsite or
require the employer to supply living quarters there, if it is so designated. We do not mean to
suggest what the outcome of the travel time pay dispute should be. We state only that the
unions' claims for travel time pay rest upon terms of the collective bargaining agreements
which are open to the interpretive processes embraced by the grievance procedures agreed
upon. Indeed when the lower court relied upon the rule of practical construction to reach
the result it did, in indulged in interpretation, for that rule is a rule of interpretation.
____________________

4
Pertinent abbreviated excerpts from the agreements are:
Carpenters: This committee shall take evidence relative to violation, interpretations, adherence and
grievances * * *.
Laborers: That it is the purpose and intent of the parties hereto that all grievances or disputes arising between
them over the interpretation or application of the terms of this agreement * * *.
Operating Engineers: It is agreed by the parties hereto that all grievances or disputes arising between them
over the interpretation or application of the terms of this agreement * * *.
Painters: The committee shall be vested with power to adjust disputes and grievances that may arise and
shall be empowered to interpret and make such rules and regulations as may be necessary to give force and
effect to the intent, purpose and meaning of the agreement.
Sheet Metal: Grievances of the employer or the union, arising out of interpretation or enforcement of this
agreement * * *.
Electrical Workers: All questions or disputes which are not adjusted between the union and the employer
shall be referred to this committee * * *.
Iron Workers: Boards of Adjustment shall be created for the settlement of disputes, except jurisdictional
disputes, which shall * * *.
Plumbers: The joint committee is hereby vested with power to adjust ail labor disputes and grievances which
may arise * * *, and is also hereby vested with the power to interpret this agreement * * *.
Teamsters: All disputes or grievances arising out of the interpretation or application of the terms or
conditions of this agreement * * *.

5
See Appendix B where the travel time pay provisions are substantially set forth.
it did, in indulged in interpretation, for that rule is a rule of interpretation. 3 Corbin 558;
Woods v. Bromley, 69 Nev. 96, 241 P.2d 1103; Holland v. Crummer Corp., 78 Nev. 1, 368
P.2d 63.
The Sheet Metal agreement contains a clause not present in the others, to wit: If adequate
living quarters are not provided at the jobsite, in addition to the subsistence, the employee
shall receive travel time and mileage, as provided herein, from the nearest place that living
quarters are available. The agreement also demands that all grievances arising out of the
interpretation and enforcement of this agreement shall be settled by the procedures therein
specified. Thus, if one were to entertain the view that the sheet metal workers are entitled to
travel time pay, still the enforcement of that right must come about through the procedures
agreed upon. The language of the court in the American Manufacturing Co. case, supra, is
particularly appropriate here. We repeat it: The courts, therefore, have no business weighing
the merits of the grievance, considering whether there is equity in a particular claim, or
determining whether there is particular language in the written instrument which will support
the claim. The agreement is to submit all grievances to arbitration, not merely those which the
court will deem meritorious. The processing of even frivolous claims may have therapeutic
values of which those who are not a part of the plant environment may be quite unaware.
The Sheet Metal Workers Union did utilize the grievance procedure specified in its
contract
6
and the Local Adjustment Board ruled in its favor.
____________________

6
The grievance procedure in pertinent part reads: Section 1. Grievances of the Employer or the Union,
arising out of the interpretation or enforcement of this Agreement, shall be settled between the Employer directly
involved and the duly authorized representative of the Union, if possible. An Employer may have the local
Association present to act as his representative. Section 2. Grievances, not settled as provided in Section 1 of
this Article may be appealed by either party to the Local Joint Adjustment Board in the area in which the work is
performed and such Board shall meet promptly, but in no more than seven (7) calendar days following the
request for its services, to render a final and binding determination, except as provided below. [The exceptions
do not relate to the merits of this dispute and are not relevant. We have, therefore, omitted them.]
Adjustment Board ruled in its favor. The contract specifies that the Board's decision shall be
final and binding. That decision determined that Reynolds was required to pay travel time. It
also found that Reynolds had discontinued doing so because of a directive from the AEC.
Reynolds has not complied with the Board's ruling, contending that it does not amount to an
award because the Board failed to decide one point presented to it, namely: was AEC
approval of pay practices an implied condition of the collective bargaining agreement
between Reynolds and the Sheet Metal Workers? In our view the Board decided that question
when it determined that Reynolds must pay travel time to the Sheet Metal Workers. Implicit
in the ruling is the Board's conclusion that AEC approval is not an implied condition of
payment. The Board interpreted this contention and resolved it against Reynolds. The
merits of the dispute were decided in the manner agreed upon. The two-step grievance
procedure was exhausted. A final and binding award was made in favor of the Sheet Metal
Workers Union. No further grievance procedure was contemplated by the agreement. In these
circumstances we do not hesitate to treat the counterclaim of the Sheet Metal Workers Union
as a suit to enforce the award and affirm the judgment as to that union.
We proceed to the arbitrability of the shift differential pay dispute between Reynolds and
the Teamsters Union. As in the case of the Sheet Metal Workers and its travel time dispute,
one might consider the contract language about shift differential pay in the Teamsters'
agreement to be unambiguous.
7
However, unlike the Sheet Metal Workers, the Teamsters
did not exhaust the grievance procedures agreed upon. The parties had agreed to submit all
disputes or grievances arising out of the interpretation or application of the terms or
conditions of this agreement to the grievance procedures therein provided for. The first step
in the procedure, that of submitting the dispute to the Joint Conference Board, was
undertaken.
____________________

7
The language: When three (3) shifts are worked, each shift shall work seven (7) consecutive hours,
exclusive of meal period, for which eight (8) hours' straight time shall be paid Monday through Friday.
Conference Board, was undertaken. The Board deadlocked. The second step, the selection of
an impartial arbitrator, was started but not completed.
8
The shift differential pay dispute with
the Teamsters, therefore, is not ripe for court enforcement.
[Headnote 8]
We think it particularly significant that none of the collective bargaining contracts before
us specifically exclude the disputes here involved from resolution by the grievance and
arbitration processes. I.B.E.W. v. Westinghouse Electric Corp., 198 F.Supp. 817 (where the
unions seek to sustain their judgment mainly on the proposition that the court ordered
arbitration because the bargaining agreement contained no specific exclusionary language);
cf. Communications Workers v. Telephone Co., 209 F.Supp. 389 (where arbitration was
refused because of the exclusionary language of the contract). It seems to us that if Reynolds
and the unions had been unwilling to accept the grievance and arbitration procedures as the
means for adjusting the travel time and shift differential pay disputes, they would have so
expressed themselves by appropriate exclusionary language.
____________________

8
The pertinent language is: D. If a majority decision is reached by the Joint Conference Board, that decision
shall be final and binding upon the parties to the dispute. In the event that a majority vote cannot be secured
within twenty-four (24) hours by the Joint Conference Board, a deadlock shall be declared after which either the
Association or the Union may refer the matter in dispute to an impartial arbiter in accordance with the following
procedure:
The party electing to arbitrate shall notify the other in writing of its desire to do so. Upon receipt of such
notice the manager of the Association and the Secretary-Treasurer of the Union (or their designated
representatives) shall attempt to select an impartial arbiter acceptable to both.
If, within twenty-four (24) hours of receipt of the notice to arbitrate said representatives are unable to agree
upon the impartial arbiter they shall jointly petition the Federal Mediation and Conciliation Service to submit a
panel of five (5) names of persons qualified to act as the impartial arbiter. Upon receipt of said panel of names,
the representative of the Union and the representative of the Association shall each alternately strike a name until
four of the five names submitted have been eliminated. The fifth or remaining nominee shall be the impartial
arbiter.
The arbitration hearing shall be scheduled as soon as possible thereafter and the arbiter shall be required to
issue his decision within forty-eight (48) hours of the close of the hearing unless the parties mutually agree, in
writing, to an extension of time.
would have so expressed themselves by appropriate exclusionary language. John Wiley &
Sons v. Livingston, 376 U.S. 543. None appears. For all of the reasons stated, we hold that
the disputes before us are within the scope of the grievance and arbitration clauses of each of
the collective bargaining agreements.
[Headnote 9]
2. Waiver or Repudiation of Arbitration. The unions seek to sustain their judgment mainly
on the proposition that Reynolds, by its conduct, either waived the contractual grievance and
arbitration procedures, or repudiated them, thereby authorizing a court determination on the
merits. We do not so view the record. It is, of course, possible for a flat waiver or repudiation
to occur. The circumstances must be examined with care. In Drake Bakeries v. Bakery
Workers, 370 U.S. 254, the United States Supreme Court stated, inter alia: Arbitration
provisions, which themselves have not been repudiated, are meant to survive breaches of
contract, in many contexts, even total breach; and in determining whether one party has so
repudiated his promise to arbitrate that the other party is excused the circumstances of the
claimed repudiation are critically important. In the Drake Bakeries case the court held that
where both parties are committed by contract to arbitrate their claims of breach of agreement,
the fact that a union strikes rather than arbitrates its claims does not necessarily excuse an
employer from its obligation to arbitrate. Accord: Packinghouse Workers v. Needham
Packing Co., 376 U.S. 247; see also Annot., 8 L.Ed.2d 1013.
[Headnotes 10, 11]
The language of the high court in Drake Bakeries is particularly significant here. Though
the unions claim a repudiation, the record is devoid of evidence showing that the employer
was unwilling to pursue the grievance procedures agreed upon. All of the evidence is the
other way. The Carpenters Union sought to have arbitration waived. Reynolds refused. The
Union then selected an arbitrator, but did not proceed further. The Operating Engineers
Union instituted grievance proceedings.
Operating Engineers Union instituted grievance proceedings. The Joint Conference
Committee, after hearing the evidence, deadlocked. The Union then requested that Reynolds
waive the next step in the grievance procedure, and Reynolds refused. Nothing more was
done. The Plumbers Union wrote Reynolds that the Union was willing to arbitrate. Reynolds
responded, suggesting that the Union wait until conferences then in progress were concluded,
for the matters in dispute were being discussed. Nothing further occurred. As before
indicated, the Teamsters instituted grievance proceedings, but did not complete them. The
Plasterers and Cement Masons, the Electrical Workers, the Ironworkers, the Laborers and the
Painters did not seek to utilize the grievance procedures to resolve the travel time pay dispute.
The evidence is uncontradicted that the employer willingly participated in every grievance
procedure instituted and has steadfastly maintained throughout that the disputes be resolved
as contractually agreed upon and not otherwise. Arbitration provisions, which themselves
have not been repudiated, are meant to survive breaches of contract, in many contexts, even
total breach; * * *. Drake Bakeries v. Bakery Workers, supra. Here it is evident that the
employer did not breach or repudiate the arbitration provisions of the various contracts. Its
breach, if any occurred, was of the provisions of the agreements governing travel time and
shift differential pay. That kind of a breach is survived by the arbitration provisions.
Therefore, the unions' failure to arbitrate is not excused, nor has arbitration been waived or
repudiated by Reynolds.
9

[Headnotes 12-15]
The employer's unilateral change of pay practices does not, as a matter of law, constitute a
repudiation of its promise to arbitrate. For the same reason, any indication in this record that
the employer would not abide by a final and binding arbitration award without the approval
of the AEC does not, as a matter of law, amount to a repudiation of its promise to
arbitrate.
____________________

9
The cases relied upon by the unions are inapposite. In each there was a flat refusal by the employer to
participate in the arbitration process. See In re Aller's Petition, 47 Cal.2d 189, 302 P.2d 294; Bertero v. Superior
Court, 216 Cal.App.2d 213, 30 Cal.Rptr. 719; Council of West. Elec. v. Western Elect. Co., 2 Cir., 238 F.2d
892.
the approval of the AEC does not, as a matter of law, amount to a repudiation of its promise
to arbitrate. An award, if made pursuant to the agreed procedures, may be enforced by a suit
upon the award. United Steelworkers v. Enterprise Corp., 363 U.S. 593. Nor does the instant
law suit, commenced by the employer, amount to a repudiation of its promise to arbitrate, for
by this action Reynolds sought to preserve the status quo until the grievances could be
resolved by the procedures contractually agreed upon.
The judgment below in favor of Sheet Metal Workers International Association, Local
Union 88, is affirmed. In all other respects the judgment below is reversed.
Badt, J., and Bowen, D. J., concur.
APPENDIX A
Relevant Grievance Provisions
1. Carpenters:
Whereas the parties to this Agreement are both convinced that it is to the best interest of
themselves and the public in general that the construction industry be conducted on the basis
of harmonious agreements, rather than protracted strikes or lockouts caused by
misunderstandings or lack of cooperative effort, it is, therefore, agreed that a Joint Committee
representing the parties to this Agreement shall be set up immediately and maintained
throughout the life of this Agreement and any continuations thereof.
This Joint Committee shall be known as the Labor Management Committee and shall be
made up of two members with authorization to act for and represent Carpenters Local No.
1780, and two members of the General Contractors of Southern Nevada who are authorized
to act for and represent the Contractors. It shall be the duty of this Committee to meet at least
once each month to give consideration and study to the general and overall problems
affecting the building industry in the area covered by this agreement for the good of this
community and the Construction Industry. It shall be the duty of this Committee to assemble
on two days notice, upon request by either a representative of the General Contractors of
Southern Nevada or the Secretary of Carpenters Local No.
request by either a representative of the General Contractors of Southern Nevada or the
Secretary of Carpenters Local No. 1780.
This Committee shall take evidence relative to violation, interpretations, adherence, and
grievances presented to the Committee in writing, and shall decide on the evidence before it,
and make a faithful effort to bring the parties together in final agreement within forty-eight
hours. Should this Committee be unable to make a settlement within forty-eight hours, then
the Committee shall present the matter together with the evidence to the General Contractors
of Southern Nevada and Carpenters Local No. 1780 of Las Vegas, for their information only.
The Committee shall, when deadlocked, at the end of forty-eight hours immediately select
one man agreeable to the employer and one man agreeable to the Union, and these two
selections shall immediately select a third man. These three shall review the evidence at hand
and permit the parties to the dispute to be heard in defense of their position, and then render a
decision which shall be final and binding on the parties to this Agreement. There shall be no
stoppage of work during this interim period. The cost of such proceedings, if any, shall be
borne equally by both parties.
2. Sheet Metal Workers:
SECTION 1. Grievances of the Employer or the Union, arising out of interpretation or
enforcement of this Agreement, shall be settled between the Employer directly involved and
the duly authorized representative of the Union, if possible. An Employer may have the local
Association present to act as his representative.
SECTION 2. Grievances, not settled as provided in Section 1 of this Article may be
appealed by either party to the Local Joint Adjustment Board in the area in which the work is
performed and such Board shall meet promptly, but in no more than seven (7) calendar days
following the request for its services, to render a final and binding determination, except as
provided below. The Board shall consist of equal number of representatives of the Union and
of the local Employers' Association and both sides shall cast an equal number of votes at each
meeting.
meeting. The local Employers' Association, on its own initiative, may submit grievances for
determination by the Board as provided in this Section.
SECTION 3. Grievances, not settled as provided in Section 2 of this Article because of a
deadlock between the parties to the Local Joint Adjustment Board or because of failure of
such Board to act, may be appealed by either party to a panel consisting of one (1)
representative chosen by the Sheet Metal Workers' International Association and one (1)
representative chosen by the Employer directly involved and such panel shall meet promptly,
but in no more than seven (7) calendar days following a request for its services to render a
final and binding determination, except as provided below.
SECTION 4. Grievances, not settled as provided in Section 3 of this Article because of a
deadlock between the parties to the panel, may be appealed by either party to the National
Joint Adjustment Board, as established by the Sheet Metal Workers' International Association
and the Sheet Metal and Air Conditioning Contractors' National Association, Inc.
Submissions shall be made and decisions rendered under such procedures as may be
prescribed by such Board, from time to time, and mutually approved by the parties creating it.
Copies of the procedures shall be available from, and submission of grievances may be made
to either the General Secretary-Treasurer of the Sheet Metal Workers' International
Association or the Executive Secretary of the Sheet Metal and Air Conditioning Contractors'
National Association, Inc.
SECTION 5. Any decisions on appeals shall be in writing addressed to all parties
interested in the grievances. Notice of appeal must be made within seven (7) days. Notice of
appeal must be made within seven (7) days of notice of any decision of deadlock. There shall
be no cessation of work by strike or lockout during the pendency of the procedures provided
for in this Article.
SECTION 6. Nothing contained in this Article shall apply to any controversy or dispute
arising out of any notice of reopening of this Agreement as provided in Article XIII thereof.
3. Laborers:
A. That the craft steward, as defined in Section G of this Article, is to receive grievances
or disputes from employees working in classifications of his craft, and shall immediately
report them to his business agent or special representative who shall immediately attempt to
adjust said grievance or dispute with the Contractor or his representative.
B. Such business agent or special representative shall have access to the project during
working hours for the purpose of adjusting grievances or disputes and shall make every
reasonable effort to advise the Contractor or his representative of his presence on the project
and shall not stop nor interfere with the work of any workmen without the permission of the
Contractor or his representative.
C. If the grievance or dispute is not satisfactorily adjusted by the business agent or
special representative and the Contractor or his representative within three (3) working days
from the date of the occurrence of the grievance or dispute, either party may refer the matter
to the Joint Conference Board (as defined and constituted in Article XII of this Agreement). If
a Contractor desires to refer a grievance or dispute to the Joint Conference Board, he shall
send a written notice to the appropriate chapter of the Associated General Contractors, Las
Vegas Builders' Exchange or Southern Nevada Home Builders Association, Inc. depending
upon the Contractor's affiliation, and serve copies of said notice on (1) the Secretary of the
Building and Construction Trades Council having jurisdiction and (2) the Business Agent of
the Union involved in the grievance or dispute or his representative. Said notice shall contain
the names of the contractor(s) and Union(s) involved in the grievance or dispute; and a brief
statement of the nature of the grievance or dispute.
If a Union desires to refer a grievance or dispute to the Joint Conference Board the
Business Agent or his representative shall notify in the same manner the Secretary of the
Building and Construction Trades Council having jurisdiction in the area in which the
grievance arose, and serve copies of said notice upon {1) the Contractor involved or his
representative and {2) the appropriate Chapter of the Associated General Contractors, Las
Vegas Builders' Exchange or Southern Nevada Home Builders, Inc. depending upon the
affiliation of the Contractor.
arose, and serve copies of said notice upon (1) the Contractor involved or his representative
and (2) the appropriate Chapter of the Associated General Contractors, Las Vegas Builders'
Exchange or Southern Nevada Home Builders, Inc. depending upon the affiliation of the
Contractor. Thereafter, the Chapter Secretary acting for the signatory associations and the
Secretary of the Building and Construction Trades Council receiving such notice shall notify
their respective chairmen of the Joint Conference Board of receipt of said notice by
transmitting a copy to them, and the chairmen shall immediately thereafter agree upon a time
and place for a meeting of the Joint Conference Board to consider the matter. Said meeting
shall be set not more than seven (7) working days from the date of receipt of said notice by
the Chairman.
D. Before the meeting of the Joint Conference Board the Secretary of the appropriate
signatory association, or his representative, and the Secretary of the Building and
Construction Trades Council involved, or his representative, may attempt through
conciliation and mediation to adjust said grievance. If they succeed in adjusting the grievance
or dispute, they shall immediately so notify their respective chairmen of the Joint Conference
Board and the scheduled meeting shall be cancelled. In the event, however, that they are
unable to adjust satisfactorily the grievance before the date set for the meeting of the Joint
Conference Board, the Joint Conference Board shall meet to consider the grievance or dispute
referred to it and make its recommendation to the parties. If the Joint Conference Board fails
to make a recommendation within three (3) working days after meeting, or if either party
disagrees with the recommendation made the grievance or dispute shall be referred to a Joint
Arbitration Committee composed of two (2) representatives of the Unions and two (2)
representatives of the Contractors. Whenever possible, the Joint Arbitration Committee shall
be composed of persons not directly involved in the dispute. The Joint Arbitration Committee
shall then hear and review any grievance or dispute submitted to it and adjudicate the same.
same. The award of the Joint Arbitration Committee shall be final and binding upon all
parties to this Agreement when made by a majority of the four (4).
In the event that a majority vote cannot be secured within three (3) working days after the
submission of said grievance or dispute to the Joint Arbitration Committee, the four (4)
committeemen shall, within twenty-four (24) hours, select a fifth impartial arbiter and all of
the parties hereto agree that the award of the impartial arbiter shall be final and binding upon
them.
If, within twenty-four (24) hours after said committeemen attempt to choose a fifth
person to act as an arbiter, they are unable to agree upon such fifth person, the fifth person
shall be chosen by immediately requesting the regional office of the Federal Mediation and
Conciliation Service to submit the names of five (5) persons qualified to act as arbiters. When
said list has been presented, the representatives of the Unions and the representatives of the
Contractors on the Joint Arbitration Committee shall each have the choice of rejecting the
names of two of these five persons, the remaining or fifth one shall be selected as the arbiter
within twenty-four (24) hours after submission of said list, and it shall be mandatory for said
arbiter to render a decision within forty-eight (48) hours thereafter, unless an extension of
time is mutually agreed to by the parties hereto.
E. No jurisdictional disputes between the Unions signatory hereto, or on whose behalf
this agreement is made, shall be submitted for determination to the Joint Conference Board,
the Joint Arbitration Committee or an arbiter but shall be determined in the manner provided
in Section E of Article III of this agreement. All disputes or grievances arising out of the
interpretation or application of any of the terms or conditions of this Agreement shall be
submitted for determination and be determined by the procedures set forth in this Article V,
but neither the Joint Conference Board, the Joint Arbitration Committee, nor the arbiter, in
determining any grievance or dispute shall have authority to modify, vary, change, add to, or
remove any of the terms or conditions of this agreement.
F. All expenses incurred and approved by the Joint Conference Board or the Joint
Arbitration Committee, including the fees and expenses of the impartial arbiter, necessary for
the consideration and determination of the grievance or dispute submitted to it, shall be borne
by and divided equally between the Unions and the Contractors.
G. A craft steward shall be a working employee, appointed by the Unions, who shall, in
addition to his work as an employee, be permitted to perform during working hours such of
his union duties as cannot be performed at other times. The Unions agree that such duties
shall be performed as expeditiously as possible and the Contractors agree to allow craft
stewards a reasonable amount of time for the performance of such duties. The Unions shall
notify the Contractor of the appointment of each Craft Steward and the Contractor before
laying off or discharging a Craft Steward, shall notify the union of his intention to do so. It is
recognized by the Contractor that it is desirable that the person appointed Craft Steward
remain on the job as long as there is work in his particular craft or trade. In no event shall a
Contractor discriminate against a Craft Steward or lay him off, or discharge him on account
of any action taken by him in the proper performance of his Union duties.
4. Operating Engineers:
A. In cases of violation, misunderstanding or difference in interpretation of this
Agreement by either party, there shall be no cessation or stoppage of work. No dispute,
complaint or grievance shall be recognized unless called to the attention of the individual
Contractor and the Union within thirty days after the alleged violation occurred. Both parties
pledge their immediate cooperation to reach a mutually satisfactory settlement of the above,
in accordance with the following procedure.
B. If the individual employee fails to effect a settlement of his grievance or dispute with
the Contractor, or his representative, and the Steward, then the Job Steward, as defined in
Article VI, will receive such grievance or dispute from the employee and will report it to the
Business Representative of the Union, who will immediately attempt to adjust same with
the Contractor, or his Association representative.
it to the Business Representative of the Union, who will immediately attempt to adjust same
with the Contractor, or his Association representative. In the event such grievance or dispute
cannot be satisfactorily adjusted on the job between the representative of the Union and the
Contractor, or his representative, within twenty-four hours, then the same may be referred to
the Joint Adjustment Board.
C. There is hereby established a Joint Adjustment Board, to be composed of three
representatives of the Contractors and three representatives of the Union. The Joint
Adjustment Board shall have authority to perform the functions set forth in Articles IV and V
of this Agreement. Each of the parties shall, within ten days after the execution of this
Agreement, appoint its representatives and immediately notify the other party, in writing, of
the name and business address of each representative appointed. The Joint Adjustment Board
shall thereafter meet within ten days and select its Chairmen and Secretaries and thereafter it
shall meet at the call of the Chairmen. The Joint Adjustment Board shall not have authority to
make recommendations or decisions which would add to, alter, vary or modify any of the
terms or provisions of this Agreement.
D. The Joint Adjustment Board shall meet and act upon such matters referred to it, but in
no event later than ten working days after referral. A decision shall be rendered within three
working days after the Joint Adjustment Board meets. In the event no decision can be reached
within three working days, the Joint Adjustment Board may, within two working days, select
a seventh person to act as Impartial Chairman by requesting the Federal Mediation and
Conciliation Service to furnish the names of five persons qualified to act as Impartial
Chairman. When said list has been presented, the representatives of the Contractors and the
representatives of the Union comprising the Joint Adjustment Board shall each have the
choice of rejecting two names of the five persons listed. The remaining, or fifth person, shall
be selected as Chairman and, within twenty-four hours, the Joint Adjustment Board and the
Impartial Chairman shall meet and render a decision within forty-eight hours thereafter.
Impartial Chairman shall meet and render a decision within forty-eight hours thereafter. Any
and all decisions made by the Joint Adjustment Board and the Impartial Chairman shall be
final and binding upon both parties to this Agreement. The time limits specified in this
Article, may be altered by mutual agreement.
E. In the event the Joint Adjustment Board determines that the Contractor is in violation
of the Agreement, wherein wages, hours or working conditions are involved, the employee, or
employees, shall be made whole by the Contractor in accordance with the Joint Adjustment
Board determination.
F. All expenses incurred and approved by the Joint Adjustment Board, including the fees
and expenses of the Impartial Chairman, necessary for the consideration and decision of
grievances or disputes submitted to it, shall be borne by and divided equally between the
Union and the Contractors.
5. Painters:
During the term of this Agreement, there shall be a permanent Joint Committee, three (3)
representatives from the Association and/or Chapter and three (3) representatives from the
Union, with, two (2) alternates from each side. Alternates may attend all meetings, but will
not be entitled to vote, except in place of a member for whom he is alternate when said
regular member is absent.
Members or alternate members of the Joint Committee are subject to removal by a
majority vote of the members of the respective organization of which he is a representative, at
a special meeting called for that purpose. Failure of a particular member or alternate member
to attend meetings regularly, may be deemed cause for removal. Delegates and alternates shall
be seated upon the presentation of proper credentials from their respective organizations. In
the event vacancies occur in the Committee, the Committeeman or Alternate appointed to fill
said vacancy or vacancies shall present credentials as herein described for members or
alternate members.
The Joint Committee shall elect a president and vice-president from the Committee and
said officers shall be entitled to voice and vote.
entitled to voice and vote. All decisions of the said Committee shall be decided by a majority
vote.
The Committee shall be vested with power to adjust disputes and grievances that may
arise and shall be empowered to interpret and make such rules and regulations as may be
necessary to give force and effect to the intent, purpose and meaning of the Agreement.
6. Electrical Workers:
There shall be a Joint Conference Committee of three representing the Union and three
representing the Employer. It shall meet regularly at such times as it may decide. However, it
shall also meet within forty-eight (48) hours when notice is given by either party. It shall
select its own chairman and secretary.
All questions or disputes which are not adjusted between the Union and the Employer
shall be referred to this Committee.
All matters coming before the Committee shall be decided by a majority vote. Four (4)
members of the Committee, two (2) from each of the parties hereto, shall be a quorum for the
transaction of business, but each party shall have the right to cast the full vote of the
membership and it shall be counted as though all were present at the meeting. In a dispute
involving a specific shop neither the employer nor any of the employees of said shop, even
though they be members of the Committee, are eligible to sit in judgment on that particular
case.
Should this Committee fail to agree or to adjust any matter, such shall then be referred to
the Council on Industrial Relations for the Electrical Construction Industry.' Its decision shall
be final and binding.
When any matter in dispute has been referred to the Joint Conference Committee or the
Council on Industrial Relations for the Electrical Construction Industry' for adjustment, the
provisions and conditions prevailing prior to the time such matter arose shall not be changed
or abrogated until the decision is rendered.
7. Iron Workers:
Boards of Adjustment shall be created for the settlement of disputes, except jurisdictional
disputes, which shall be composed of two representatives selected by the Union and two
representatives selected by the Employers.
Union and two representatives selected by the Employers. No member of any Board of
Adjustment shall be an aggrieved party to the dispute being considered. Said Board shall
organize within three (3) working days and shall elect a Chairman and a Secretary and shall
adopt rules of procedure which shall bind the contracting parties. Said Boards shall have the
power to adjust any differences that may arise regarding the meaning and enforcement of this
contract. Within twenty-four (24) hours of the time any dispute is referred to it by either
party, said Board shall meet to consider such dispute. If the Board, within twenty-four (24)
hours after such meeting cannot agree on any matter referred to it, the members thereof within
three (3) days shall choose a fifth member, who shall have no business or financial
connections with either party. The decisions of said Boards shall be determined by a majority
of their members and, pending such decisions, work shall be continued in accordance with
the provisions of this contract. The expense of employing said fifth person shall be borne
equally by both parties. No proceeding hereunder based on any dispute, complaint or
grievance herein provided for, shall be recognized unless called to the attention of the
individual employer or the Local Union involved in writing within fifteen (15) days after the
alleged violation is committed. Copies of the decision of the Boards shall be mailed to the
Employers and the Union.
8. Plumbers:
Any labor dispute or grievance under this Agreement, or any question involving
interpretation of this Agreement, shall first be discussed between the shop steward and the
employer involved, or his representative. If such labor dispute or grievance cannot be settled
by such discussion, the business agent of the Union and the Employer, or his authorized
representative, shall attempt to settle the same by direct negotiation, or with the mediation of
the Administrator of the Joint Committee; if such labor dispute or grievance cannot be settled
by such direct negotiation, or mediation of the Administrators, it may be referred by either
party to the Joint Committee, which shall act promptly thereon through investigation, and, if
the Committee deems the same proper, through formal hearing.
same proper, through formal hearing. The decision of the Joint Committee shall be final and
binding upon the parties hereto. If the Committee is unable to agree upon a decision within
five (5) days after such matter is first submitted to it, the labor dispute, grievance, or question
involving interpretation of this Agreement shall be referred to the Board of Arbitration.
9. Teamsters:
A. That the Union steward, as defined in Section G of this Article, is to receive
grievances or disputes from employees working in classifications of his craft, and shall
immediately report them to his business agent or special representative who shall
immediately attempt to adjust said grievance or dispute with the Contractor or his
representative.
B. Such business agent or special representative shall have access to the project during
working hours for the purpose of adjusting grievances or disputes and shall make every
reasonable effort to advise the Contractor or his representative of his presence on the project,
and shall not stop nor interfere with the work of any workman without the permission of the
Contractor or his representative.
C. If the grievance or dispute is not satisfactorily adjusted by the business agent or
special representative and the Contractor or his representative within three (3) working days
from the date of the occurrence of the grievance or dispute, either party may refer the matter
to the Joint Conference Board (as defined and constituted in Article XII of this Agreement). If
a Contractor desires to refer a grievance or dispute to the Joint Conference Board, he shall
send a written notice to the appropriate chapter of the Associated General Contractors of
America, Inc., to the Las Vegas Builders' Exchange or Southern Nevada Home Builders
Association, Inc., depending upon the Contractor's affiliation and serve a copy of such notice
on the Secretary-Treasurer of Teamsters Local No. 631, Las Vegas, Nevada. Said notice shall
contain the name of the contractor involved in the grievance or dispute; and a brief statement
of the nature of the grievance or dispute.
If the Union desires to refer a grievance or dispute to the Joint Conference Board, the
Business Agent or his representative shall serve written notice upon (1) the Contractor
involved or his representative and (2) the appropriate chapter of the Associated General
Contractors of America, Inc., Las Vegas Builders' Exchange, or Southern Nevada Home
Builders Association, Inc., depending upon the affiliation of the Contractor. Such notice shall
likewise contain the name of the Contractor involved and a brief statement of the nature of
the grievance or dispute.
Upon receipt of notice that a contractor or the Union desires to refer a dispute to the Joint
Conference Board, the Manager of the Associations and the Secretary-Treasurer of the Union
shall agree upon a time and place for a meeting of the Joint Conference Board to consider the
matter. Said meeting shall be set not more than three (3) working days from the day of receipt
of such notice of appeal to the Joint Conference Board.
D. If a majority decision is reached by the Joint Conference Board, that decision shall be
final and binding upon the parties to the dispute. In the event that a majority vote cannot be
secured within twenty-four (24) hours by the Joint Conference Board, a deadlock shall be
declared after which either the Association or the Union may refer the matter in dispute to an
impartial arbiter in accordance with the following procedure:
The party electing to arbitrate shall notify the other in writing of its desire to do so. Upon
receipt of such notice the manager of the Association and the Secretary-Treasurer of the
Union (or their designated representatives) shall attempt to select an impartial arbiter
acceptable to both.
If, within twenty-four (24) hours of receipt of the notice to arbitrate said representatives
are unable to agree upon the impartial arbiter they shall jointly petition the Federal Mediation
and Conciliation Service to submit a panel of five (5) names of persons qualified to act as the
impartial arbiter. Upon receipt of said panel of names, the representative of the Union and the
representative of the Association shall each alternately strike a name until four of the five
names submitted have been eliminated.
a name until four of the five names submitted have been eliminated. The fifth or remaining
nominee shall be the impartial arbiter.
The arbitration hearing shall be scheduled as soon as possible thereafter and the arbiter
shall be required to issue his decision within forty-eight (48) hours of the close of the hearing
unless the parties mutually agree, in writing, to an extension of time.
E. All disputes or grievances arising out of the interpretation or application of the terms
or conditions of this Agreement shall be submitted for determination and be determined by
the procedures set forth in this Article V. The decision of the impartial arbiter shall be final
and binding upon the parties hereto but it is expressly understood that neither the Joint
Conference Board nor the Arbiter in determining any grievance or dispute has authority to
modify, vary, change, add to, subtract from, or remove any of the terms or conditions of this
Agreement.
APPENDIX B
Travel Time Pay Provisions
(Campsite to Jobsite and Return)
1. Carpenters:
Employees at campsite shall receive travel allowance at the rate of pay applicable to the
day on which an employee is employed. Travel shall be from campsite to job to campsite with
safe and suitable transportation furnished by the Contractor in compliance with Nevada State
Laws. (It is understood that all work performed in excess of eight (8) hours shall be paid at
the overtime rate.)
2. Sheet Metal Workers:
If adequate living quarters are not provided at the job site in addition to the subsistence,
the employee shall receive travel time and mileage as provided herein from the nearest place
that living quarters are available.
3. Laborers:
Employees at campsite shall receive travel allowance at straight time rate from the
campsite to jobsite and back to campsite with safe and suitable transportation furnished by
the contractor in compliance with Nevada State Laws."
furnished by the contractor in compliance with Nevada State Laws.
4. Operating Engineers:
the Contractor in compliance with Nevada State Laws.
5. Painters: No specific provision.
6. Electrical Workers:
Where a shop is located on the job site outside the city limits of Las Vegas the travel time
will be computed from the city limits of Las Vegas as follows:
Per mile for the first five (5) actual road miles:
Twenty-four (24) cents per mile one way for travel time if the Employer furnishes
transportation, and an additional
Twenty (20) cents per mile one way for travel expense, if the employee furnishes his own
transportation.
Per mile for actual road miles thereafter:
Eighteen (18) cents per mile one way for travel time if the Employer furnishes
transportation, and an additional
Twenty (20) cents per mile one way for travel expense if the employee furnishes his own
transportation.
Vehicle used for transporting men must be covered with adequate seats, and shall observe
established speed limits. When the traveling expense to the job equals the amount of eight
dollars ($8.00) per day per man then the job will be considered as a subsistence job and the
Employer may elect to pay subsistence in cash or negotiable voucher at the rate of eight
dollars ($8.00) per day worked, minimum, in lieu of traveling time and transportation or
mileage. On remote camp or subsistence jobs suitable accommodations will be provided.
If on a regularly scheduled work day an employee is not permitted to work due to weather
conditions or lack of material, or other causes beyond the employees' control, said employee
shall notwithstanding be paid subsistence for such days. If, on non-schedule days (such as
Saturdays, Sundays and holidays) an employee remains away from home over night, said
employee shall be paid the regular subsistence for such days.
as Saturdays, Sundays and holidays) an employee remains away from home over night, said
employee shall be paid the regular subsistence for such days.
Travel time will be paid on subsistence jobs for reporting to, upon employment, and
leaving upon termination. Mileage will be paid at ten cents (10c) per mile, if transportation is
not furnished by the Employer.
Travel time outside of the regular working hours beyond paved roadways, property lines,
boundaries or fences shall be paid for at the straight time rate of pay.
7. Iron Workers:
When an individual employer hires workmen for a job more than 35 miles away from the
City Hall in those cities listed in Paragraph (a), the workmen shall be paid travel time,
transportation and subsistence, in accordance with the Agreement, whether or not the job is
located within another expense-free zone as provided by this Agreement. The individual
employer shall pay bridge, ferry and toll road fares.
Workmen shall receive nine cents (9) per mile for transportation to and from jobs over
35 miles from the designated basing point at the beginning and completion of the job.
Time paid for traveling will be paid for at the straight time hourly rate and will be
computed at the rate of 35 miles per hour. Travel time pay shall be computed as follows:
Determine travel time by dividing 35 into the actual miles over the most direct regularly
traveled route between the job and the designated point. Determine travel time pay by
multiplying travel time, including fractions, by the straight time rate; provided, however, in
no case shall travel time pay exceed 8 hours pay in any 24 hour period.
8. Plumbers:
On any work performed outside the city limits of Las Vegas and North Las Vegas, the
employer shall allow travel expense to and from the job, based on the straight time
journeyman hourly wage rate, as agreed between the Employer and the Union.
On any job so located that it would be impracticable to travel forth and back to the city
limits of Las Vegas, the employer shall provide suitable board and lodging or forty dollars
{$40.00) per week subsistence, or eight dollars {$S.00) per day if the job is of less than
five {5) days' duration; or if more than five {5) days are worked per week, eight dollars
{$S.) per day.
to travel forth and back to the city limits of Las Vegas, the employer shall provide suitable
board and lodging or forty dollars ($40.00) per week subsistence, or eight dollars ($8.00) per
day if the job is of less than five (5) days' duration; or if more than five (5) days are worked
per week, eight dollars ($8.) per day. In the event suitable board and lodging can be obtained
for less than the subsistence per week, the employee shall receive the difference.
9. Teamsters:
the contractor in compliance with Nevada State Laws.
____________
81 Nev. 231, 231 (1965) Walters v. Nevada Title Guaranty Co.
GERALD E. WALTERS, ELEANOR M. WALTERS and MARGARET ANN WALTERS,
Appellants, v. NEVADA TITLE GUARANTY COMPANY, Respondent.
No. 4852
April 28, 1965 401 P.2d 251
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Vendors' suit against purchaser for specific performance of land sale contract. A title
company crossclaimed for moneys which it had disbursed out of escrow for the benefit of the
vendors. The trial court found for the purchaser and entered judgment recoverable from the
vendors or the title company or both of them, and awarded the title company judgment on its
crossclaim. An appeal directed to propriety of the judgment on the crossclaim was taken. The
Supreme Court, Thompson, J., held that where all parties had assumed that the crossclaim of
the title company against the vendors would be automatically controlled by the outcome of
the trial of the vendors' claim against the purchaser, the failure of the pretrial order to mention
the crossclaim as an issue in the case did not affect the substantial rights of the vendors, and
the judgment for the title company on the crossclaim would not be set aside merely because
of such failure.
crossclaim would not be set aside merely because of such failure.
Affirmed.
Breen, McDonald and Young and Jerry Carr Whitehead, of Reno, for Appellant.
Wilson & Hale, of Reno, for Respondent.
1. Trial.
Generally, pretrial order controls subsequent course of trial and supersedes pleadings. NRCP 16 and
subd. (6).
Where all parties had assumed that crossclaim of title company against vendors would be automatically
controlled by outcome of trial of vendors' claim against purchaser for specific performance of land
contract, failure of pretrial order to mention crossclaim as issue in case did not affect substantial rights of
vendors, and judgment for title company on crossclaim would not be set aside merely because of such
failure. NRCP 13(h), 16 and subd. (6), 61.
3. Specific Performance.
Where purchaser prevailed in suit against her for specific performance and cross claimant title company
was thus entitled to recover from vendors money which it had disbursed out of escrow for benefit of
vendors, purchaser should recover her judgment from title company and not from vendors.
OPINION
The broad question presented by this appeal is whether a trial court may enter judgment
upon an issue framed by the pleadings but not mentioned as an issue in the pretrial order
subsequently entered. In the circumstances of this case we have concluded that the omission
of that issue (to be later described) from the pretrial order did not affect the substantial rights
of the appellants. NRCP 61.
1
Accordingly, it was permissible for the lower court to enter
the judgment which the appellants now question.
____________________

1
NRCP 61 reads, No error in either the admission or the exclusion of evidence and no error or defect in any
ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new
trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of
the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights
of the parties.
lower court to enter the judgment which the appellants now question.
The Walters (Gerald, Eleanor and Margaret Ann) initiated the case below. As sellers of
improved real property, they brought suit against Weisel, the buyer, to compel specific
performance of the contract of sale. The total purchase price was $100,000. Weisel had paid
$29,000 into escrow as the down payment. Weisel answered and counterclaimed requesting
the return of the down payment. Her basis for doing so was that the Walters had
misrepresented material facts about the property and had thereby fraudulently induced her to
purchase it. The Nevada Title Guaranty Company, the escrow agent, was not at that time a
party to the action. It was added as a party some time later upon motion of Weisel, NRCP
13(h),
2
and a new pleading was filed by Weisel, adding the title company as defendant to her
counterclaim. Her charge against the title company was that it had disbursed most of the
down payment in violation of the escrow instructions. The title company answered Weisel,
admitting the disbursement of $26,213.08 for the use and benefit of the Walters ($16,541.56
to the Bank of America to release a first deed of trust; $6,467.41 to the Bank of America to
reduce another deed of trust; $3,204.11 to the Walters), denying the escrow violation, and
crossclaimed against the Walters, seeking to recover the amounts so disbursed. The Walters'
responsive pleading to the crossclaim of the title company simply admitted the disbursements
mentioned. No charge of wrongdoing or fault was made by the Walters against the title
company. A defense to the crossclaim was not asserted. At this juncture it was apparent that
the central controversy was the Walters' request for specific performance of the contract of
sale and Weisel's defense thereto. All assumed that the validity of the title company's claim
against the Walters for the return of $26,213.08 would be automatically controlled by the
outcome of the Walters v. Weisel dispute.
_____________________

2
NRCP 13(h) reads, When the presence of parties other than those to the original action is required for the
granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be
brought in as defendants as provided in these rules, if jurisdiction of them can be obtained.
Should the Walters win their suit for specific performance, it would follow that the
disbursements made by the title company were authorized, and its crossclaim for
reimbursement would fail. On the other hand, should the Walters lose to Weisel, it was
assumed that the title company should recover back the moneys disbursed out of escrow for
the Walters' benefit. It is within this context that the pretrial conference was held.
Following the pretrial conference, a pretrial order was entered. It was to control the
subsequent course of the action, unless modified at the trial to prevent manifest injustice.
NRCP 16.3 The order did not specifically refer to the title company's contingent crossclaim
against the Walters. No one objected to the form of the pretrial order, nor was it later
modified. Trial occurred. The Walters and Weisel put on proof. The title company offered
nothing. The Walters lost their case for specific performance. The lower court found for
Weisel and entered a judgment in her favor for $29,000 plus interest recoverable from either
the Walters or the title company or both of them. That judgment is not questioned on this
appeal. The trial court also awarded the title company a judgment on its crossclaim against
the Walters for $26,213.08 plus interest. The appeal is directed to the propriety of this award.
We are asked to set it aside as unauthorized because the pretrial order had failed to mention
the title company's crossclaim against the Walters as an issue in the case.
[Headnotes 1-3]
As a general proposition a pretrial order does control the subsequent course of the trial and
supersedes the pleadings. Annot., 22 A.L.R.2d 599. Some courts apply this rule strictly and
hold that the pleadings drop out of the case once the pretrial order is completed. King v.
Edward Hines Lumber Co.,
____________________

3
NRCP 16, in pertinent part, reads, The court shall make an order which recites the action taken at the
conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the
matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of
counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to
prevent manifest injustice.
Edward Hines Lumber Co., 68 F.Supp. 1019 (Ore.); Kolton v. Nassar, 352 Mich. 337, 89
N.W.2d 598. Others indicate that the pretrial order supersedes the pleadings only where
inconsistent therewith (Shaw v. Calgon, Inc., 35 N.J.Super. 319, 114 A.2d 278; 48 Cal.Jur.2d,
Trial 33), and that issues not explicitly disposed of by the pretrial order remain for trial. Farr
v. State Highway Bd., 123 Vt. 334, 189 A.2d 542. We do not now decide which view we
prefer because it seems to us on this record that if error occurred it was harmless. Without
question, each party to this case and the trial court assumed throughout that the title
company's claim for reimbursement from the Walters was wholly controlled by the Walters v.
Weisel dispute. Indeed the Walters, appellants, have never asserted by pleading or otherwise
that they need not reimburse the title company if unsuccessful in compelling specific
performance by Weisel. Their desire to resist the title company's claim occurred after
judgment, and will not now be considered.
4

Affirmed.
____________________

4
The judgment for Weisel against the Walters and the title company may, according to its terms be satisfied
against either or both of the judgment debtors. In view of our disposition of this appeal Weisel should recover
her judgment from the title company and not from the Walters.
____________
81 Nev. 235, 235 (1965) Portnoy v. Portnoy
FRANK SAMUEL PORTNOY, Appellant, v.
ANN ROSETTA PORTNOY, Respondent.
No. 4837
April 30, 1965 401 P.2d 249
Appeal from judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Support action by wife who obtained a final ex parte divorce in foreign jurisdiction. The
lower court awarded support to wife, and husband appealed. The Supreme Court, Thompson,
J., held that where wife did not have an opportunity to litigate right to support in foreign
divorce action, she was not precluded from later maintaining action for support against
husband.
an opportunity to litigate right to support in foreign divorce action, she was not precluded
from later maintaining action for support against husband.
Judgment affirmed.
Waters, D. J., dissented.
Murray Posin, of Las Vegas, for Appellant.
Neil G. Galatz, of Las Vegas, for Respondent.
1. Divorce.
Valid ex parte divorce entered at domicile of only one party to marriage does not automatically end wife's
right to support.
2. Divorce.
Where wife did not have an opportunity to litigate right to support in foreign divorce action which
granted her final ex parte divorce and where law of foreign jurisdiction allowed wife to obtain support after
entry of ex parte divorce, wife was not precluded from later maintaining action for support against
husband. NRS 125.150, subd. 1.
OPINION
The appeal presents one question: May a former wife, who has obtained a final ex parte
California divorce, thereafter maintain an action for support in this state against her former
husband? The lower court held that she could, and awarded support. We affirm.
[Headnote 1]
In resolving the question we may, of course, put to one side those cases in which the wife
has had an opportunity to claim support or alimony, for in such cases there may be reason to
limit her rights against the husband to what the divorce court has granted. See Herrick v.
Herrick, 55 Nev. 59, 25 P.2d 378; Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638. Nor need
we be concerned with our statement in Freeman v. Freeman, 79 Nev. 33, 378 P.2d 264, that
the power to award permanent alimony is wholly the creature of statute, because the statute,
NRS 125.1501, only governs the case of a domestic divorce in which the court has
jurisdiction to award alimony.
NRS 125.150
1
, only governs the case of a domestic divorce in which the court has
jurisdiction to award alimony. Here our sole concern is with the right of a divorced wife to
later obtain support when she did not have an opportunity to litigate that right in her foreign
divorce action. Nevada has not before decided this question. The answer, however, is
foreshadowed by our opinions in Summers v. Summers, 69 Nev. 83, 241 P.2d 1097, and
Farnham v. Farnham, 80 Nev. 180, 391 P.2d 26, in which we applied the divisible divorce
doctrine and its consequences to the facts there presented, and also looked to the law of the
wife's domicile to resolve the support question. It is now established beyond question that a
valid ex parte divorce entered at the domicile of only one party to the marriage does not
automatically end the wife's right to support. Estin v. Estin, 334 U.S. 541, (where it was
decided that a Nevada divorce court, which had no personal jurisdiction over the wife, had no
power to terminate a husband's obligation to provide her support as required in a preexisting
New York separation decree); Armstrong v. Armstrong, 350 U.S. 568; Vanderbilt v.
Vanderbilt, 354 U.S. 416 (where it was held to be immaterial that the wife's right to support
had been reduced to judgment after the husband's ex parte divorce). The cited cases also
appear to have resolved the choice of law problem by looking to the state of the wife's
domicile to determine her right to support.
[Headnote 2]
Applying these well settled rules to this case, we find that California law permits a former
wife to obtain support following the entry of an ex parte divorce. Hudson v. Hudson, 52
Cal.2d 735, 344 P.2d 295; Lewis v. Lewis, 49 Cal.2d 389, 317 P.2d 987; Weber v. Superior
Court, 53 Cal.2d 403, 348 P.2d 572. We must honor California's view. Summers v. Summers,
supra; Farnham v. Farnham, supra. We approve Professor Paulsen's statement: The law of
the wife's domicil at the time of divorce is perhaps the most suitable measure of a wife's
interests.
____________________

1
In pertinent part NRS 125.150(1) reads: In granting a divorce, the court may award such alimony to the
wife * * * as shall appear just and equitable * * *.
perhaps the most suitable measure of a wife's interests. If such a choice of law rule were used,
the husband in most cases will know by what state's law he can expect to be judged. Neither
his obligation nor his right will then depend upon the future movements of him or his wife.
See Support Rights and an Out-of-State Divorce, 38 Minn.L.Rev. 709, 727.
We are aware of the split of authority on the question presented by this appeal. Annot., 28
A.L.R.2d 7378. Some courts forbid a later alimony action in the state where the former
husband resides or has property on the flat proposition that a wife's support rights are incident
to the marriage and fall with its dissolution.
2
Such a view is wholly incompatible with the
divisible divorce theory. Others apply res judicata, reasoning that any valid divorce decree is
res judicata on the question of alimony.
3
It is indeed difficult to understand why a wife
plaintiff in an ex parte divorce proceeding should be barred by res judicata. She has not
enjoyed a day in court on the support question for the court of her domicile had no power to
award her support from her absent husband. And some invoke waiver, stating that she has
waived her right to support by bringing a divorce action in a state where the court was
without power to grant support.
4
The value of this use of waiver is not easy to ascertain, for
it puts a cruel choice to the wife. She must either (a) maintain the marriage and pray that her
absent husband will support her; (b) follow him and sue for support; or (c) divorce him at her
domicile and forego support. The modern trend of authority is to reject these views, and to
follow the reasoning of Justice Traynor in Dimon v. Dimon, 40 Cal.2d 516, 254 P.2d 528
(dissenting opinion); Hudson v. Hudson, supra. We prefer his view also. The economic
need, the moral and legal claims for alimony can be adequately and fairly explored only in a
proceeding involving both parties.
____________________

2
See Staub v. Staub, 170 Md. 202, 183 A. 605; Kelley v. Kelley, 317 Ill. 104, 147 N.E. 659; McCoy v.
McCoy, 191 Iowa 973, 183 N.W. 377.

3
See Doeksen v. Doeksen, 202 Iowa 489, 210 N.W. 545.

4
See McFarlane v. McFarlane, 43 Ore. 477, 73 P. 203.
Paulsen, Support Rights and Out-of-State Divorce, 38 Minn.L.Rev. 709, 724.
For the reasons stated, the judgment below is affirmed.
Badt, J., concurs.
Waters, D. J., dissenting:
The decision of the court in this case, simplified, says this: A wife may obtain a final
divorce decree in a foreign state where she lives; thereafter she may come to Nevada where
her former husband lives, commence and successfully prosecute an independent action
against him for alimony.
NRS 125.150, subsection 1, reads 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.
To my knowledge no other section of the statutes of this state authorizes a final award of
alimony, nor has any decision of our Supreme Court heretofore sanctioned a final award of
alimony in this sort of action.
The decision in this case is new law. It is not interpretation of existing law. No play with
semantics can interpret the words of the statute: In granting a divorce, the court may award
such alimony * * * to mean: After a decree of divorce, the court may award such alimony.
Here is created a remedy for a right that did not exist in Nevada before this decision.
I do not conceive it to be the function of courts to write new law. Accordingly, I cannot
participate in the decision of the majority in this case, and must file this dissent.
____________
81 Nev. 240, 240 (1965) Ex Parte Kellar
In the Matter of the Application of CHARLES L.
KELLAR for Admission to the Bar of the State of Nevada.
No. 4577
May 5, 1965 401 P.2d 616
Original petition for review of recommendations of Board of Bar Examiners
recommending that the application of Charles L. Kellar for admission to practice be denied.
The Supreme Court, Wines, D. J., held that confidential reports and testimony of witnesses
taken at hearing without according right of confrontation and cross-examination and without
notice to applicant as to issues could not prevail against established good character and
testimony for applicant, that applicant was not to be denied admission because of comments
made with respect to review procedure during interview on local television station, and that
delay by applicant for admission to bar in reporting pendency of misdemeanor charges filed
against him and certain associates in another state which charges were resolved by settlement
was not ground for denial of application, as his action was not discreditable, and that
petitioner was entitled to be admitted to practice law in state.
Recommendation rejected and applicant admitted.
Badt, J., dissented.
See also 79 Nev. 28, 377 P.2d 927.
Bert Goldwater, of Reno, and Howard W. Babcock, of Las Vegas, for Petitioner.
Howard L. Cunningham, Chairman, Board of Bar Examiners, and Robert R. Herz,
Secretary of State Bar of Nevada and of the Board of Bar Examiners, both of Reno, for
Respondent.
1. Attorney and Client.
Admission to practice of law is not a matter of grace and favor.
Confidential reports may properly be used to apprise of, but should not be used in trial of, issues as to
character in considering application for admission to bar. SCR 57.
Applicant for admission to bar was entitled to right to confront witnesses and to cross-examine them with
respect to alleged misconduct while admitted to practice in another state, and should have been allowed to
call witnesses on his own behalf. SCR 57.
Board of bar examiners hearing issues relating to alleged misconduct by applicant for admission to bar
while admitted to practice in another state should have appointed counsel to investigate, evaluate and
present evidence. SCR 57.
Confidential reports and testimony of witnesses taken without according to bar applicant right of
confrontation and cross-examination heard without notice to applicant as to issues could not prevail against
established good character and testimony of applicant. SCR 57.
6. Attorney and Client; Constitutional Law.
Supreme Court and other persons acting as arms of court are required to state any charges against
applicant for admission to bar, which may result from study of confidential reports, and to produce for
confrontation and cross-examination all witnesses on issues if challenged by applicant, but if charge is not
denied or evidence in support of charge is of undisputed documentary character, procedural due process is
complied with if applicant is given opportunity to reply or explain. SCR 57.
Applicant for admission to state bar whose application had not been accepted by board of bar examiners
was not to be denied admission because of comments critical of review procedure made during interview
on local television station.
Delay by applicant for admission to bar in reporting pendency of misdemeanor charges filed against him
and certain associates in another state, which charges were resolved by settlement, was not ground for
denial of application as his action was not discreditable.
OPINION
By the Court, Wines, D. J.:
Charles L. Kellar has shown the court 39 years of irreproachable conduct while living in
Brooklyn, New York. For some 20 of these years he was engaged in the practice of the law
and had an established practice when he left New York to make his home in Las Vegas,
Nevada, in the spring of 1960.
he left New York to make his home in Las Vegas, Nevada, in the spring of 1960. Lawyers
and judges with whom he dealt in his practice, have written letters commending his
professional competence, sense of ethics and civility. His affiliations portray him as a
communicant who attends his church regularly, a party man active in the affairs of his
political party, a Negro man sensitive to the problems of his people and persistent in his
efforts to solve these problems. His many civic activities while living in New York mark him
as a responsible member of his community. He has always been a shrewd and successful
investor. He has raised a family of two boys, though the mother of those children and he are
now divorced and he has remarried and has two children by his present wife. That he is a
scholar of the law is attested to by his having taken and passed the Nevada Bar examination.
[Headnotes 1, 2]
The Board of Bar Examiners recommended that he be not admitted on the ground that he
had failed to meet character standards. After reviewing the record supplied us we would not
have so recommended. We acknowledge that we have the benefit of hindsight and a record
supplemented since the time of the board's recommendation, and the supplementary
information favors the petitioner. We apprehend too that the members of the board and of the
Local Administrative Committee for District 1 in their investigation of his character were
handicapped in their performance and in their duty to this court by a lack of power of
subpoena and by a nice observation of our Rule 57. This rule was drafted on the premise that
admission to practice in this state is a matter of grace and favor, a notion we are now obliged
to discard. Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10
L.Ed.2d 224. Our rule has a function. Confidential reports may properly be used to apprise of
but should not be used in the trial of issues as to character.
Here we perceive the mischief of the rule and admit it invites error. When the petitioner
could not find his name among the successful applicants of the bar he made inquiry.
made inquiry. He was informed that the board had sought and obtained leave to file a
supplemental report and a recommendation. Further inquiry elicited from the Secretary of the
State Bar that it was the policy of the board to obtain a report on the activities of the applicant
if he had practiced in another jurisdiction.
When, several months later, the Local Administrative Committee took up the matter the
committee had information that the petitioner had associated with subversive organizations
and persons in New York, in several instances practiced law in this state, was guilty of
impropriety in a real estate transaction, had attempted submission of spurious items to an
adjuster of an insurance claim, and had drafted a letter for another person's signature
addressed to Robert Kennedy, Attorney General, charging discrimination in the matter of his
application.
[Headnote 3]
At this point we believe the petitioner should have been seasonably and fully advised of
these charges, of the intent of the committee to hold a hearing and to take testimony from
witnesses and the names of the witnesses should have been endorsed on the notice. Also, at
this juncture, counsel should have been appointed to investigate, evaluate, and present the
evidence against the petitioner. Having thus removed themselves from the contest the
members, not personally involved, could have judiciously ruled upon the issues. At the
hearing it is implicit that the petitioner would have been confronted by the witnesses against
him, given opportunity to cross-examine, and should have been permitted to call witnesses on
his behalf. This is what we read in the text on due process.
Instead, the petitioner was not so noticed nor advised. He was not permitted to confront
and cross-examine witnesses against him and did not present any witnesses on his behalf. The
committee members interrogated the witnesses and the petitioner and two members were
sworn and gave testimony. In this exchange tempers soured and petitioner and the members
were soon trading criticisms.
[Headnote 4]
The board and the committees while hearing such issues should adjudicate and not
advocate. Advocacy predicates assuming and attempting to sustain a point of view and cannot
be reconciled with adjudication.
[Headnote 5]
Confidential reports and the testimony of witnesses taken without confrontation and
cross-examination and without notice to the applicant as to the issues cannot prevail against
an established good character and the testimony of the petitioner.
Proceedings before the Board of Bar Examiners were conducted in the same manner
except that the board heard a number of witnesses who appeared voluntarily to testify on the
petitioner's behalf and were cross-examined by the board. The board did not take any
evidence against petitioner and apparently relied on that taken by the Administrative
Committee.
We do not intend reading the members of the Administrative Committee and the Board of
Bar Examiners a lesson on due process. The record reflects their concern with this aspect of
the hearings. Nor do we ignore these facts. At the time of the hearing the board did not have
power to subpoena and no funds for retention of counsel. We have, in effect, written a new
rule and redefined an old rule so as to comply with the ruling in the Willner case.
Before the opinion in the Willner case was handed down, we had denied a preliminary
motion by the petitioner Kellar in the instant matter, to disclose the confidential written
reports submitted by the National Conference of Bar Examiners and by other persons. Ex
parte Kellar, 79 Nev. 28, 377 P.2d 927. At that time the disclosure would have served no
purpose. As a practical matter, the hearings before the committee and the board had served to
give the petitioner notice of the issues on the subject of his fitness and character.
[Headnote 6]
He was given an opportunity to deny, to explain, and to discuss the charges reflecting on
his character and fitness and he did in the course of the hearings. By this court he was
granted leave to supplement the record and submit his affidavits and those of other
persons having a firsthand knowledge of the facts.
court he was granted leave to supplement the record and submit his affidavits and those of
other persons having a firsthand knowledge of the facts. This procedure did not afford the
petitioner nor the members of the committee and the board opportunity to confront and
cross-examine the witnesses. This approach is not tolerable any longer. But we persist in our
previous conclusion that we are not required to disclose confidential written reports by the
Willner case. That case would require us and other persons acting as arms of the court, if
issues result from a study of the confidential reports, to state the charges against the applicant,
and if challenged to produce for confrontation and cross-examination, all witnesses on the
issues. When the charge is not denied, or when the evidence in support of the charge is of an
undisputed documentary character, procedural due process would be complied with if the
applicant is given opportunity to reply or explain.
We turn now to two critical events. The information regarding these events came after the
report and recommendation of the Board of Bar Examiners. One we learned of by disclosure
from the petitioner and the other was a news event and his part in it is admitted by the
petitioner. The evidence therefore comes within the exception noted in the Willner case as the
facts are known by us from the statements made by the petitioner.
On November 16, 1962, the petitioner filed in this court his petition in which he alleged
that he was in all respects qualified for admission to the Nevada State Bar and that he had
been denied that privilege because of racial prejudice. On that same day the petitioner
appeared at a television broadcasting station in Reno, Nevada, and was interviewed regarding
this issue.
He was asked what legal action he had taken. He stated that he had filed his petition and
then added in answer to that question that he believed he had been discriminated against as a
Negro and not because of his law attainments or his character. The single evidential fact
reported by him in support of that charge was that in 98 years of this state's existence not a
single Negro applicant had been admitted to the bar and he said he thought this was not an
accident but "contrived" and to be "eradicated" by efforts on the part of those denied
"their just constitutional rights."
he thought this was not an accident but contrived and to be eradicated by efforts on the
part of those denied their just constitutional rights. In answer to another question he
enumerated those courts and agencies he was entitled to practice before, adding that none of
these privileges had been withdrawn. The interview closed with this questionif he thought
it was strictly racial prejudice. He answered in the affirmative adding that the bar had set
out to obtain secret affidavits to present their things to the members of the Bar. All of these
complaints had been alleged in his petition which was a public document, except that the
Nevada State Bar had not been accused but the Board of Bar Examiners.
We think it apposite to point out that since this interview two Negroes have been admitted
to the bar; that prior to Mr. Kellar's application there had been but a single Negro applicant
and he had failed in the bar examination. Also that approximately a month later when a
reporter for a Las Vegas newspaper sought an interview from Mr. Kellar he was refused on
the ground that the matter was pending in this court.
On or about December 29, 1961, the grand jury of Kings County recommended and the
district attorney of that county filed informations against Charles L. Kellar, Cornelia Street,
Kellars Industrial Limited, Inc., and Adventure Development Corporation charging those
defendants with violations of the New York Rent Control Law during the years 1959 and
1960. The two corporations were family corporations and Charles L. Kellar was the major
stockholder. Their corporate purpose was to engage in domestic and foreign real property
investments. Cornelia Street, in 1959 and 1960, was the petitioner's secretary. Specifically
Charles L. Kellar was charged with perjury in the second degree, a misdemeanor, and with
having charged excessive rents, also a misdemeanor. Cornelia Street was similarly charged.
There were additional charges made against the corporations.
We are concerned about these actions since it was not until May 13, 1963 that the
petitioner disclosed the existence and nature of the actions to this court. It has been argued
that the withholding of this information over that period shows a lack of candor.
been argued that the withholding of this information over that period shows a lack of candor.
These things should be said for the petitioner. The petitioner, who was then residing in
Nevada, voluntarily appeared in the actions within weeks of the filing. On application of the
People the disposition of the actions was continued from time to time until July 11, 1963,
when upon the insistence of the defendants in the cases they were marked ready and set for
July 12, 1963. All of the defendants pleaded not guilty. The defendants were prepared to take
issue with the People's evidence against them. Finally on July 12, they agreed to this
disposition of the actions upon the suggestion of the district attorney. The actions would be
dismissed as to all defendants except as to Adventure Development Corporation. That
corporation would enter a plea of guilty to the charge of demanding and obtaining excessive
rents and that defendant Kellar agreed to pay to the tenants any sums found to be owing by
either of the corporations. The district attorney stated in open court that the statute of
limitations barred civil remedies and he was concerned with getting relief for the aggrieved
tenants. On July 23, 1963 this compromise was executed; Adventure Development
Corporation pleaded guilty and paid a civil penalty of a $1,000 fine; the district attorney and
Mr. Kellar had agreed on the names of those tenants entitled to recover and a sum sufficient
to pay them was handed to the district attorney on that day. The actions against Charles L.
Kellar, Cornelia Street, and Kellars Industrial Limited Inc., were dismissed.
[Headnote 7]
The petitioner has offended against the ethic of our Canon and is by that Canon censured.
See Canon 20, Canon of Ethics of the American Bar Association. Issues of this kind are not
to be tried to the people by means of the news media. The filing fee is the newsworthiness of
the litigant's cause, there is not a sifting of the evidence presented and often, as in this
instance, the other party is not heard at all. The esteem of some 30 years of seemly endeavor
and achievement is now in jeopardy because of this rash appeal.
because of this rash appeal. We could readily understand and forgive his impatience with our
admission procedures but we have no patience with his percept of the sinister in the conduct
and conclusions of the board and of the committee. Our concern here is with the impress the
discipline of our profession has made upon him. Years of industry, achievement, good
citizenship and honorable conduct are not compurgators; these years testify to his regard for
the profession and his obligations as a professional person. We think it harsh then to deny the
petitioner admission because of a single offense of this nature, here disciplined according to
the Canon.
[Headnote 8]
We are less troubled about his candidness in reporting the charge against him in New
York. He did not shirk his responsibility to the people of the State of New York. If he did this
in concern with his application in this state he did not as an opportunist, forthwith report to
this court. We, in decent respect to a man who meets his private obligations, write this down
as a shrewd and in no manner dishonest appraisal of the complainant's demand. His policy in
this action was not discreditable and he has not been disciplined by the bar of New York.
The recommendation of the Board of Bar Examiners that Charles L. Kellar be denied
admission is rejected, and we conclude that petitioner is entitled to practice law in the State of
Nevada. It is so ordered.
Badt, J., dissenting:
I dissent.
Although I concur in many of the things said in the majority opinion,
1
I cannot reconcile
myself to restricting this court's reaction to a mere reprimand for his broadcast on television
and for his failure to disclose the criminal charges that were pending against him in New
York.
____________________

1
Much space is devoted to a criticism of the practice of relying upon statements of witnesses whom the
applicant has had no opportunity of confronting and cross-examining. I have no quarrel with the majority on this
point. In default of actual presentation of these witnesses for cross-examination by the applicant we must
continue to presume that despite the clouds of smoke, there is no fire.
York. It is true that both of these incidents occurred after the recommendations of the Board
of Bar Examiners that admission to practice in Nevada be denied. However, we had given the
board permission to file a further supplemental report. These matters then developed.
In his television broadcast he said: I believe that I have been discriminated against, and
that I am not being admitted to the bar here purely because of my race. It is not because of my
qualifications or my inability or my character, as they say, but rather because they do not want
a Negro to practice law in this state. In the 98 years that the State of Nevada has been in
existence and so far as I have been able to gather, no Negro has ever been admitted to practice
law in its courts. This is not just an accident. This is a contrived and a situation which, of
course, can be eradicated and changed only by effort on the part of those who are being
denied the opportunity to get their just constitutional rights. Similar statements were made to
the Board of Bar Examiners.
First, the statement is misleading with reference to the facts. Only one other Negro had
sought admission in Nevada and he failed to pass the bar examination. Since the Kellar
application, two Negroes have been admitted in Nevada after passing the 1964 bar
examination. No other Negroes, except in the cases mentioned, have ever applied for
permission to practice in this state. The same applies to applicants of any other race than
Caucasians.
At the time Mr. Kellar broadcast his remarks on television a highly emotional situation
existed throughout the United States in general and in Nevada in particular. Civil rights
legislation or contemplated legislation was pending in the Congress and also in the state
legislature. At the time the remarks were made there was pending in this court the applicant's
petition for a review of the recommendations of the Board of Bar Examiners. There can be
but little doubt that the telecast had as its purpose the raising of social pressure on this court
to reverse the action of the board. In oral argument we asked petitioner's counsel if he thought
that the telecast was a lawyer-like thing to do.
that the telecast was a lawyer-like thing to do. The most counsel would admit was that it was
in poor taste. In my opinion it was far worse than simply in poor taste. His statement, I
am not being admitted to the bar here purely because of my race * * * because they do not
want a Negro to practice law in this state * * * no Negro has ever been admitted to practice in
its courts * * *. This is not just an accident. This is a contrived * * * situation * * * was not
in effect directed simply to the Board of Bar Examiners. It was a broad wave of his arm
which took in the Board of Bar Examiners, the state bar, and this court. (Emphasis supplied.)
The Board of Bar Examiners has often been referred to as an arm of the court. It comprises
seven lawyers of high standing in this state. Their task in preparing the bar examinations and,
in the case of application for admission by attorneys from foreign jurisdictions, carrying on
extensive correspondence with the investigative arm of the National Conference of Bar
Examiners, grading the examinations, conducting hearings, is an arduous and difficult one. It
is undertaken without compensation. It is a tremendous drain upon the time of the members
of the board. It sometimes results, as in the present case, in charges such as those made by
Mr. Kellar. As the decision of the board in this case was unanimous, the charge is directed
against every member of that board. As to the nature and extent of the character investigation,
reference is made to an article by James B. Tippin, Jr., Executive Director, Florida Board of
Bar Examiners, entitled Technique of Character InvestigationVigilance with Due
Process, published in 1963, Volume 32, Nos. 3-4, of The Bar Examiner, published by the
National Conference of Bar Examiners, which is composed of members of law-examining
boards and character committees. The article is too long to quote at length, but I may refer to
the following part of the author's address to the National Conference of Bar Examiners:
Those of you who are in the unfortunate position of constantly being designated as
respondents in the petitions filed by the disgruntled applicants are not unfamiliar, I am sure,
with the applicants' glossary which invariably includes such terms as 'Kangaroo Court,'
'star chamber,' 'inquisition,' persecution,' 'oppression,' 'rumor,' and 'innuendo.'"
invariably includes such terms as Kangaroo Court,' star chamber,' inquisition,' persecution,'
oppression,' rumor,' and innuendo.'
Nor can I overlook Mr. Kellar's lack of candor in failing to report the criminal charges
against him in New York. The majority opinion makes light of the criminal proceedings
pending against Mr. Kellar apparently because the charge of perjury in the second degree
and the charge of having charged excessive rents were both merely misdemeanors. I cannot
treat them lightly. They both involve moral turpitudethe making of false affidavits of
installation of improvements in the rented premises that would justify increased rentals.
These amounted to $3,500 which he in behalf of his corporation (which had pleaded guilty)
refunded to the tenants, whereupon the district attorney dismissed the charges. His
corporation also paid a $1,000 fine. He reported these proceedings to the board when he must
have known that the board had, or was about to receive, knowledge thereof. They were
established by introduction of exemplified copies of the court records.
In Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d
224, cited by the majority opinion, reference is made to the concurring opinion by Justice
Goldberg, in which Justices Brennan and Stewart joined. It was said: * * * [W]hen the
derogatory matter appears from information supplied or confirmed by the applicant himself,
or is of an undisputed documentary character disclosed to the applicant, and it is plain and
uncontradicted that the committee's recommendation against admission is predicated thereon
and reasonably supported thereby, then neither the committee's informal procedures, its
ultimate recommendations, nor a court ruling sustaining the committee's conclusion may be
properly challenged on due process grounds, provided the applicant has been informed of the
factual basis of the conclusion and has been afforded an adequate opportunity to reply or
explain. Of course, if the denial depends upon information supplied by a particular person
whose reliability or veracity is brought into question by the applicant, confrontation and the
right of cross-examination should be afforded.
This dissent has nothing to do with due process.
I am in entire disagreement with that part of the majority opinion in which it is stated that
the majority is not troubled about his [lack of] candidness in reporting the New York charges
against him. I do not agree that He did not shirk his responsibility to the people of the State
of New York. I do not agree with the majority's statement as follows: If he did this in
concern with his application in this state he did not as an opportunist, forthwith report to this
court. This appears to me to be admission of his opportunism, which Webster defines as
follows: Art, policy, or practice of taking advantage, as in politics, of opportunities or
circumstances, or, often of seeking immediate advantage with little regard for principles or
ultimate consequences. I thoroughly disagree with the majority's following conclusion: We,
in decent respect to a man who meets his private obligations, write this down as a shrewd and
in no manner dishonest appraisal of the complainant's demand. The majority also deems it
important that he has not been disciplined by the bar of New York. He may yet be, if he
returns to New York to practice.
I should add that there are places in the record of the hearing before the Board of Bar
Examiners which sustain the contention that he was at times evasive and that his testimony is
in some instances incredible.
Faced with the situation above outlined it is my conclusion, with due respect to the
majority opinion, that the unfavorable recommendation of the Board of Bar Examiners should
be followed and the applicant denied admission to the bar of this state.
____________
81 Nev. 253, 253 (1965) Henning v. Young
JACK HENNING and MAX WOOLF, Appellants, v. C. W.
YOUNG, Sheriff of Washoe County, Respondent.
No. 4823
May 5, 1965 401 P.2d 689
Appeal from a denial by the Second Judicial District Court, Washoe County, of a petition
for a writ of habeas corpus; Grant L. Bowen, Judge.
The lower court denied the writ and petitioners appealed. The Supreme Court, Zenoff, D.
J., held that fact that law officer under subpoena by state was not permitted to testify for
defendants at preliminary hearing did not nullify proceeding where defendants had not
availed themselves of their right to subpoena officer as their own witness and record did not
reflect how and in what manner defendants were materially or substantially prejudiced by
refusal to admit officer's testimony.
Affirmed.
Robert N. McGehee, of Reno, for Appellants.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Herbert F.
Ahlswede, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Preliminary hearing is not critical stage of criminal proceeding and no constitutional guarantee is
necessarily involved or impaired by procedure therein. NRS 171.410, 171.435.
2. Criminal Law.
That law officer under subpoena by state was not permitted to testify for defendants at preliminary
hearing did not nullify proceeding where defendants had not availed themselves of their right to subpoena
officer as their own witness and record did not reflect how and in what manner defendants were materially
or substantially prejudiced by refusal to admit officer's testimony. NRS 171.410, 171.435, 178.245.
3. Criminal Law.
Sufficient cause was shown to justify binding defendants over to district court for further proceedings on
charge of rape.
OPINION
By the Court, Zenoff, D. J.:
Petitioners appeared, with counsel of their own choice, at a preliminary hearing before the
Justice Court for the Township of Sparks, to answer a criminal complaint accusing them of
the crime of rape.
Court for the Township of Sparks, to answer a criminal complaint accusing them of the crime
of rape. The petitioners allege that the procedure at their preliminary hearing was improper
and thus rendered the preliminary hearing void.
At the hearing testimony was presented by the state. After the state rested the Justice of the
Peace advised the defendants of their prerogatives pursuant to NRS 171.410.
1
Defendants
declined to make a statement and sought to proceed under NRS 171.435 which provides as
follows:
1. After the waiver of the defendant to make a statement, or after he has made it, his
witnesses, if he produces any, must be sworn and examined.
2. The defendant, if he waives making a statement, upon his own request and not
otherwise, may be sworn and examined as a witness and, if so sworn and examined, he may
be cross-examined.
They called as their witness a law officer, Sam Costa, who had signed the complaint.
Costa was present under subpoena by the state, but was not in the courtroom, and had not
testified. Before he took the witness stand and was sworn, the prosecutor objected to his
testifying, claiming the attempt to secure Costa's testimony was a fishing expedition by the
defense. Defense counsel made no statement as to the nature of Costa's testimony nor what
was expected to be established.
The Justice of the Peace sustained the objection, and defendants offering no further
testimony or evidence, bound the defendants over to the district court for arraignment. It was
at this stage that the defendants sought the writ of habeas corpus which was denied by the
district court.
___________________

1
When the examination of the witnesses on the part of the people is closed, the magistrate must distinctly
inform the defendant:
1. That it is his right to make a statement in relation to the charge against him (stating to him the nature
thereof).
2. That the statement is designed to enable him, if he sees fit, to answer the charge, and to explain the facts
alleged against him.
3. That he is at liberty to waive making a statement.
4. That his waiver cannot be used against him on the trial.
[Headnote 1]
We have already decided that the preliminary hearing is not a critical stage of a criminal
proceeding in this state. Victoria v. Young, 80 Nev. 279, 392 P.2d 509 (1964); Ex parte Hoff,
80 Nev. 360, 393 P.2d 619 (1964). The preliminary hearing is the creature of statute and no
constitutional guaranty is necessarily involved or impaired. Farnham v. Colman, 19 S.D. 342,
103 N.W. 161, 162; Pointer v. State of Texas, 85 S.Ct. 1065.
[Headnote 2]
Defendants had not availed themselves of their right to subpoena Costa as their own
witness,
2
nor does the record reflect how or in what manner the defendants were materially
or substantially prejudiced. Application of Finn, 54 Cal.2d 807, 356 P.2d 685, at page 688. If
discovery was the defendants' purpose, as the prosecutor suggests, other means may be
attempted. Cf. Marshall v. District Court, 79 Nev. 280, 382 P.2d 214.
[Headnote 3]
Sufficient cause was shown to justify the Justice of the Peace to bind the defendants over
to the district court for further proceedings. Certainly, then, habeas corpus is not the proper
remedy in this instance. The denial of the petition for a writ of habeas corpus is affirmed.
____________________

2
NRS 178.245 provides: 1. A magistrate before whom a complaint is laid, or a clerk of the district court
before which a proceeding by indictment or information is being tried, may issue subpenas subscribed by them
for witnesses within the State of Nevada, either on behalf of the state or of the defendant.
____________
81 Nev. 256, 256 (1965) Harris v. City of Reno
G. W. HARRIS and S. TRAVERSO and A. D. RILEY, Appellants, v. CITY OF RENO, a
Municipal Corporation; HUGO QUILICI, ROY BANKOFIER, EDWARD SPOON,
CLAUDE HUNTER, CLARENCE J. THORNTON, EDWARD CHISM and WILLIAM
GRAVELLE, as the Duly Elected, Qualified and Acting Councilmen of the City of Reno;
CLIFFORD MALONE as ex Officio City Treasurer; ALBERT BOYNE as ex Officio City
Assessor; ELIOT CANN as City Engineer; and ELLIOT GILL as City Clerk, Respondents.
No. 4862
May 7, 1965 401 P.2d 678
Appeal from judgment of the Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Declaratory relief proceeding by property owners and resident citizens of city to question
validity of ordinance providing for sewer service charges against users of premises connected
with sewer system of the city. The lower court entered judgment favorable to the city, and
appeal was taken. The Supreme Court, Thompson, J., held that ordinance was valid under
statute expressly validating all provisions of the ordinance.
Judgment affirmed.
Peter I. Breen, Ernest S. Brown, and George Lohse, of Reno, for Appellants.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Respondents.
1. Municipal Corporations.
Subject to constitutional limitations, legislature may, by curative statute, validate acts and proceedings of
municipal corporations, and when done, the legislative sanction is the equivalent of original authority.
Sewer use charge was not ad valorem tax within constitutional provision limiting total tax levy for all
public purposes to five cents on each dollar of assessed valuation. Const. art. 10, 2.
Ordinance providing for sewer service charges against users of premises connected with city sewer
system was valid under statute expressly validating all provisions of the ordinance.
statute expressly validating all provisions of the ordinance. Stats. 1965, ch. 115.
OPINION
Harris, Traverso and Riley, property owners and resident citizens of Reno, Nevada, who
were defeated below in a declaratory relief proceeding (NRS 30.040), brought to question the
validity of Reno City Ordinance No. 1352, appeal to this court. We affirm.
The matter was presented to the lower court upon an agreed statement of facts which we
need not quote in full. The questioned ordinance was enacted February 12, 1962. Briefly, it
provides for sewer service charges against the users of premises, property or structures of
every kind, nature and description, which are connected directly or indirectly with the sewer
system of the City of Reno * * *. The charges are collected by the Chief License Inspector or
such other person as the City Manager may appoint, and transmitted to the City Clerk. If the
charges imposed become delinquent, the City Assessor may levy a special assessment upon
the premises and against the person chargeable therewith, and the assessment roll, when
recorded, shall constitute a lien upon the property assessed, which may be foreclosed by sale.
The sewer service charges collected shall be used solely for the maintenance, operation,
improvement, expansion, extension or betterment of the sanitary and storm sewer collection
system, treatment facilities and reasonable appurtenances of the City of Reno, and for the
redemption of the interest on and the payment of the principal of any bonds issued by the City
for the purpose of improving, expanding, extending, or constructing any sanitary and storm
sewer collection system or treatment plants and appurtenances and for the costs of collecting
the charges imposed in this article and of administering this article.
Reno proposes to issue its general obligation bonds in the principal sum of $4,000,000,
and to use the funds acquired thereby to build a new sewage treatment facility to serve the
sanitary sewer system of the City and for the purposes of extending interceptor sewer
lines, installing new storm drain lines, and improving those now in existence.
acquired thereby to build a new sewage treatment facility to serve the sanitary sewer system
of the City and for the purposes of extending interceptor sewer lines, installing new storm
drain lines, and improving those now in existence. Reno intends to meet the annual principal
and interest requirements of the $4,000,000 bond issue and the annual principal and interest
requirements of prior sewer improvement bond issues (in 1947, 1953 and 1955) by paying the
same from the sewer service charges imposed and collected under City Ordinance No. 1352.
Harris, Traverso and Riley, the plaintiffs below and the appellants here, have not paid the
sewer use charges imposed upon them under the terms of the ordinance. They excuse their
failure to do so on two grounds. First, they assert that the City of Reno did not have charter or
legislative authority to enact and enforce the City Ordinance in question. Second, they
contend that the collection of sewer service charges from them and others similarly situated
would violate Nev. Const. Art. 10, 2, which limits the total tax levy for all public purposes
to five cents on each one dollar of assessed valuation. Underlying each argument is this
factual story. Each of the plaintiffs owns real property in Reno which, for several years before
the enactment of Ordinance No. 1352, has been connected to and served by adjacent sewer
lines which were installed as a part of the sanitary sewer and storm drain system of Reno and
which lines were paid for by special assessments imposed on their said real property. The
agreed facts tell us that the aggregate approximate sum of $190,000 is required each year to
discharge the principal and interest payments on the outstanding 1947, 1953 and 1955 general
obligation sewer improvement bonds. These plaintiffs object to the City of Reno paying the
annual principal and interest requirements of the 1947, 1953 and 1955 sewer improvement
bonds from the sewer service charges collected under the February 12, 1962, ordinance. The
City had discharged one year's principal and interest payment on those bonds from sewer
service charges collected under the ordinance. The plaintiffs insist that the prior bond issues
may not be retired in this manner, but must be discharged as provided by NRS
350.350-350.490, "Water and Sewer Bond Law," and not otherwise.
issues may not be retired in this manner, but must be discharged as provided by NRS
350.350-350.490, Water and Sewer Bond Law, and not otherwise.
1. The judgment below declared City Ordinance No. 1352 to be valid and that the
plaintiffs were not entitled to relief, viz., they must pay the sewer use charges imposed upon
them under that ordinance or suffer the consequences therein provided. That judgment was
entered November 5, 1964. If ever there was doubt as to Charter or a legislative grant of
authority to the City of Reno to enact Ordinance 1352, it was erased on March 5, 1965, by a
new law, Assembly Bill No. 163. Omitting the title, that law reads:
Whereas, A question has been raised with respect to the statutory or charter authority of
the City of Reno, Nevada, to enact its Ordinance No. 1352, which was passed, adopted and
approved February 12, 1962; now, therefore, The People of the State of Nevada, represented
in Senate and Assembly, do enact as follows:
Section 1. All of the provisions of Ordinance No. 1352, of the City of Reno, Nevada,
passed and adopted by the city council of the City of Reno and approved by the mayor thereof
all on February 12, 1962, entitled An ordinance to amend Chapter 9 of the Reno Municipal
Code by adding thereto a new article to be known as Article XIV; providing for the
imposition and collection of fees for the use of the City of Reno's sewage collection and
disposal system; providing for the imposition of and collection of a fee for new connections
to said sewer system; providing that delinquent fees be made a lien against the property
served, and providing for other matters properly relating thereto,' are hereby authorized,
ratified, approved and confirmed in all respects.
Sec. 2. This act shall operate to supply such legislative authority as may be necessary to
validate any and all acts performed, or proceedings taken, by or on behalf of the City of Reno,
Nevada, pursuant to, or in anywise appertaining to Ordinance No. 1352.
Sec. 3. This act is necessary to secure and preserve the public health, safety, convenience
and welfare of the people of the State of Nevada, and it shall be liberally construed to effect
its purpose.
Sec. 4. This act shall become effective upon passage and approval.
[Headnote 1]
The challenged action of the City (its payment of one year's principal and interest due upon
the 1947, 1953 and 1957 sewer improvement bonds from the sewer service charges collected
under Ordinance 1352) was expressly validated by 2 of Assembly Bill No. 163. Subject to
constitutional limitations, a legislature may, by curative statute, validate acts and proceedings
of municipal corporations and, when done, the subsequent legislative sanction is the
equivalent of original authority. 62 C.J.S., Municipal Corporations 196; 16A C.J.S.,
Constitutional Law 428; Sanford v. Major Dania, Inc., 43 So.2d 712 (Fla. 1949); North
Gallatin Unit School Dist. No. 1 v. Wright, 20 Ill.App.2d 266, 156 N.E.2d 6; Brown v. City
of Brunswick, 210 Ga. 738, 83 S.E.2d 12; Cf. Chenoweth v. Board of Co. Commr's, 79 Nev.
403, 385 P.2d 771.
[Headnote 2]
2. Though Harris, Traverso and Riley seek to persuade us that the sewer use charge
imposed upon them by Ordinance 1352 somehow violates Nev. Const. Art. 10, 2, we find
their argument to be without merit. The sewer use charge is not an ad valorem tax within the
scope of that provision of the constitution. Rhyne, Municipal Law (1957), 20-5; McQuillin,
Municipal Corporations (3d Ed. 1963), Vol. 16, 44.02; Western Heights Land Corp. v. City
of Fort Collins, 146 Colo. 464, 362 P.2d 155; Laverents v. City of Cheyenne, 67 Wyo. 187,
217 P.2d 877; Williams v. City of Madison, 15 Wis.2d 430, 113 N.W.2d 395.
[Headnote 3]
We conclude that Reno City Ordinance No. 1352 is valid and that the City of Reno may
impose the sewer use charges therein provided for upon the plaintiffs below and all other
similarly situated for the purposes therein specified, including the redemption of the principal
and interest due and to become due upon the 1947, 1953 and 1955 sewer improvement
bonds issued by the City of Reno.
1953 and 1955 sewer improvement bonds issued by the City of Reno.
Affirmed.
____________
81 Nev. 261, 261 (1965) Manke v. Prautsch
MABEL MANKE, PEARL GARDNER and DONALD STUART BAB,
Appellants, v. ESTHER E. PRAUTSCH, Respondent.
No. 4858
May 10, 1965 401 P.2d 680
Gabrielli, Judge.
Suit to enjoin trustee and beneficiaries under deed of trust from selling trust properties
pursuant to powers granted in the deed. The lower court enjoined defendants from exercising
power of sale, and they appealed. The Supreme Court, Badt, J., held that evidence supported
finding that acts of trustor in removing trees which were dying, removing debris and sheds
after notice by fire department, and changing use of land in alleged violation of covenant
against waste and for maintenance and repair had not impaired security.
Affirmed.
Stewart & Horton and Wilbur H. Sprinkel, of Reno, for Appellants.
Bible, McDonald & Carano, for Respondent.
1. Mortgages.
Removal of buildings from mortgaged property by mortgagor without consent of mortgagee is not
sufficient to establish waste and give mortgagee right to invoke acceleration clause if value of mortgaged
property without the buildings greatly exceeds amount of mortgaged debt.
2. Mortgages.
Trustee and trust deed beneficiaries seeking to sell trust property pursuant to power granted in deed of
trust had burden of showing that trustor had rendered security inadequate by allegedly
changing use of property.
of showing that trustor had rendered security inadequate by allegedly changing use of property.
3. Mortgages.
Party claiming breach of covenant of maintenance and repair must show that security for debt was
impaired.
4. Mortgages.
Evidence supported finding that acts of trustor, seeking to enjoin trustee and beneficiaries under deed of
trust from selling trust properties, in removing trees which were dying, removing debris and sheds after
notice by fire department, and changing use of land in alleged violation of covenant against waste and for
maintenance and repair had not impaired security.
OPINION
This is an appeal from a judgment enjoining the appellants, as the trustee and beneficiaries
under a deed of trust, from selling the trust properties pursuant to the powers granted in the
deed of trust. The trustor is the plaintiff and respondent herein.
Respondent Prautsch purchased the property from appellant Manke and her husband, and
on November 18, 1960, executed a deed of trust securing a promissory note for $33,720.65.
This was subject to a prior deed of trust on the same property. The note and deed of trust in
question were assigned by appellant Manke to appellant Gardner February 24, 1961, to secure
an obligation of Manke to Gardner in the sum of $9,906.56. The original trustee was Pioneer
Title Insurance Company of Nevada, which was succeeded by appellant Bab, who in turn was
succeeded by Margaret H. Price.
On August 16, 1961, the attorneys for Gardner advised respondent by letter that they were
the holders of the note and deed of trust in question and advised that they were about to
record a notice of breach and election to sell for your failure to comply with your covenants
in the trust deed requiring you to keep and maintain the real property, buildings and
improvements located thereon in a good state of repair.
They further specified as follows: We are advised that several buildings have been torn
down; that the inside and outside of the buildings both, are in disrepair and that the lawn has
died;1 some of the trees are dead,2 and that the entire building has been allowed to get
into such a run-down condition as to seriously impair its value.
and that the lawn has died;
1
some of the trees are dead,
2
and that the entire building has
been allowed to get into such a run-down condition as to seriously impair its value.
Accordingly, the full amount is declared due and payable and we will proceed to file the
notice of breach and election to sell, if the condition is not corrected and the amount paid.
(Emphasis supplied.)
On October 2, 1961, a formal notice of breach and election to sell under deed of trust was
executed and recorded. The breach therein described was that the trustor has failed and
neglected to keep and maintain the above-described real property and the buildings and
improvements thereon, in a good state of repair and has torn down and removed buildings
which tend to impair or reduce the value of the property transferred. (Emphasis supplied.)
The deed of trust adopted by reference all of the covenants of NRS 107.040 and further,
pursuant to the permission granted by NRS 107.050, included the following covenant:
Grantor expressly covenants and agrees that at all times during the term hereof, she will
keep and maintain the above described real property and the buildings and improvements
located thereon in a good state of repair, and further that she will not make any alteration or
alterations to said buildings or improvements which would in any way reduce or impair or
tend to reduce or impair the value of the property transferred hereunder.
On December 28, 1961, the substituted trustee executed a notice of sale, reciting therein
the breach in the same words used as above quoted in the notice of breach and election to sell.
All statutory requirements for recordation and publication were observed.
In appellants' reply brief appellants abandon reliance upon the removal of the sheds as
constituting a breach of the covenant.
Appellants' opening brief argued that the record contains uncontradicted testimony that
five trees were removed from the residential portion of the premises and no evidence that
the trees were replaced by trees for a similar purpose.
____________________

1
These two items have since been abandoned by appellants.

2
This has likewise been abandoned.
and no evidence that the trees were replaced by trees for a similar purpose. Respondent
testified that the seven trees on the premises at the time of her purchase were in bad condition
and she had several of them removed after she had been advised by a forestry expert that they
were infected by borers and were dying. This testimony was substantiated by two other
witnesses and was recited in respondent's answering brief. Appellants in their reply brief
made no further comment and apparently abandoned the tree issue.
Appellants in their opening brief relied on a change in the character and use of the land as
constituting waste when such changed character is contrary to good husbandry and would not
be suffered by a man of prudence. Referring to respondent's denials, appellants maintained
that the record contained uncontradicted testimony that the premises were used for storage
and repair of motor vehicles contrary to the use to which the premises had previously been
put prior to the purchase and that such vehicles and parts thereof were stored upon the front
and back yards after the purchase, and that wrecked vehicles were being hauled on to the
premises for repair work, which was being done contrary to a city zoning ordinance.
Witnesses in behalf of appellants testified that appellants' photographs taken in 1955
accurately depicted condition of the property when it was sold and that the photographs taken
in December, 1961, show how it had subsequently deteriorated under respondent's
occupancy. Testimony in behalf of respondent claimed that this was not the case.
In rebuttal respondent testified that after she rented the property to certain tenants and
moved to Wisconsin in August, 1961, she was notified that the tenants were carrying on some
type of car activity on the premises; that she then came back to Reno, hired a nursery to look
after the trees and plant shrubs, and that in June of 1963 the property was as shown in her
later photographs. She testified that when she moved into the house it was in a state of
disrepair; that several old truck bodies were lying in the back yard; that the Mankes had had a
trucking business and the back yard had been used for parking and repairing the trucks;
that a few months after she entered the premises she was served with a notice from the
Reno Fire Department stating that trash, weeds and old sheds had been allowed to
accumulate on the property and that if the premises were not cleared up within 14 days
she would be required to appear before the city council; that shortly after this notice the
sheds were pulled down and a Reno firm was employed by respondent to haul the debris
away; that the same firm was also employed to clean up the yard, filling in dangerous
holes, removing dead wood and what not from the yard, receiving from respondent $150
for these services.
used for parking and repairing the trucks; that a few months after she entered the premises she
was served with a notice from the Reno Fire Department stating that trash, weeds and old
sheds had been allowed to accumulate on the property and that if the premises were not
cleared up within 14 days she would be required to appear before the city council; that shortly
after this notice the sheds were pulled down and a Reno firm was employed by respondent to
haul the debris away; that the same firm was also employed to clean up the yard, filling in
dangerous holes, removing dead wood and what not from the yard, receiving from respondent
$150 for these services.
That there was a conflict in the evidence as to the facts with reference to each point
asserted as a breach of the covenant to maintain and repair and the covenant against waste we
think is evident. The court filed a written opinion in which it concluded that there is no basis
in law or in fact to sustain defendants' contentions for foreclosure of the deed of trust here
involved; that the alleged and relied upon acts of waste, do not constitute such under law and
facts of this case; that the security for the deed of trust has not in any manner been impaired
as a result of alleged acts of waste. It concluded that the defendants should be enjoined from
exercising the power of sale under the deed of trust for any and all alleged faults here
involved and actually litigated. Findings and conclusions and judgment followed along the
lines of such written decision.
Appellants have cited numerous cases in which a mortgagee was held justified in
accelerating the maturity of the mortgage when covenants for maintenance and repair and
against waste had been violated and the value of the security had been impaired. We find no
fault with these authorities. It may be noted here that in the present case there was no claim of
any default in payment of principal or interest.
[Headnote 1]
Respondent has submitted the case of Lawton v. Lincoln, 200 Okl. 182, 191 P.2d 926, in
which an action for foreclosure of a mortgage resulted in a judgment for the defendant
mortgagor.
the defendant mortgagor. The mortgage contained a covenant against waste and for the
keeping of the improvements in a good state of repair, and a further covenant providing for
acceleration of the maturity of the principal sum at the option of the mortgagee upon breach
by the mortgagor of any of the covenants of the mortgage. The syllabus by the court correctly
recites the holding:
1. In a suit of equitable cognizance to foreclose a real estate mortgage, proof that
buildings were removed from the mortgaged property by the mortgagor without the consent
of the mortgagee is not sufficient to establish waste so as to invoke the acceleration clause,
where the proof established that the value of the mortgaged property, without the buildings,
was greatly in excess of the amount of the mortgage debt.
In the course of its opinion the court said: The evidence clearly reflects that the defaults
upon which the action is predicated did not render the mortgage security inadequate.
[Headnotes 2, 3]
Appellants contend that it was the burden of the respondent in the case of any of the
defaults relied upon (which upon the briefs and oral argument now appear to be concentrated
in the claim that there was a change of use of the property) to prove that the security was not
thereby rendered inadequate. The lack of logic in this view is illustrated by the reliance first
placed by appellants upon the removal of the trees, which was simply explained by a showing
that they were diseased and had to be cut down under the professional advice received. It is
further illustrated by the fact that reliance had at first been placed upon the removal of a shed,
but the respondent proved that the shed had been built by the Mankes, from whom she
purchased the property, ten years before such purchase at a cost of $200 and that it was filled
with junk and debris and had become a fire hazard, and its removal was ordered by city
authorities. It is further illustrated by the fact that the default asserted in allowing trucks and
parts of trucks to be stored upon the premises was but a continuation of the use practiced
by the beneficiary prior to the sale, and in any event was cured when the trustor later
cleaned up the premises.
stored upon the premises was but a continuation of the use practiced by the beneficiary prior
to the sale, and in any event was cured when the trustor later cleaned up the premises. It is the
burden of the party claiming a breach of the covenant of maintenance and repair to show that
the security for the debt was impaired.
It would be an unreasonable and unjustifiable rule if on every occasion that a mortgagor or
trustor cut down a tree or removed an old shed in the exercise of ordinary husbandry, he was
compelled to accompany such act with proof that it did not render the mortgage security
inadequate in order to forestall an acceleration of the maturity of the mortgage or trust deed;
or if a like burden were imposed on the mortgagor or trustor upon notice of the acceleration
of the maturity of the debt on minimal charges of breach of a covenant to maintain and repair.
In St. Martin v. McGee, 82 So.2d 736 (Fla. 1955), an appeal was taken from a final decree
dismissing a complaint to foreclose a mortgage because of a breach of a covenant to repair.
The court held that in the absence of a showing that security had been impaired, and in view
of the fact that the security had probably been enhanced by certain improvements made by the
mortgagor, it would be unjust and inequitable to order foreclosure. The court concluded that
there was substantial evidence to support the trial court's finding that the covenant to repair
was not breached. We are in accord with the reasoning of this case.
Of course proof of the inadequacy of the security, resulting from the trustor's use of the
premises, could have been simply made through the testimony of qualified appraisers, as to
the value at the time of respondent's purchase, and the value at the time of appellants' notice
of acceleration of the maturity and election to sell. Such proof was not offered.
[Headnote 4]
We think that the court's finding that none of the acts relied upon as a default in the
covenant against waste or for maintenance and repair in any way impaired the security of the
deed of trust is supported by substantial evidence.
the security of the deed of trust is supported by substantial evidence. The injunction against
the foreclosure sale was proper.
Affirmed.
Thompson, J., and Collins, D. J., concur.
____________
81 Nev. 268, 268 (1965) Utter v. Casey
JACK UTTER and C. W. MOORE, Appellants. v.
JOHN JAY CASEY, Also Known as JOHN J. CASEY, Respondent.
No. 4788
May 11, 1965 401 P.2d 684
Broker's action to recover commission allegedly due from purchaser for services rendered
in purchase of ranching properties. The trial court entered a judgment for the purchaser and
the broker appealed. The Supreme Court, Badt, J., held that Montana brokerage contract
providing for payment of commission to broker, licensed in Nevada but not in Montana, was
not enforceable with respect to commission allegedly earned in connection with purchase of
Montana property.
Affirmed.
Sidney W. Robinson, of Reno, for Appellants.
Vargas, Dillon, Bartlett & Dixon, and Robert A. Groves, all of Reno, for Respondents.
1. Brokers.
Finding that purchaser's agreement to pay commission to licensed Nevada broker for services in
acquiring Montana ranching properties was made in Montana was supported by substantial evidence.
It is not function of Supreme Court to weigh the evidence.
3. Brokers.
Where brokerage contract was made in Montana covering purchase of Montana property and the place of
performance, both intended and actual, was in that state, law of Montana governed
enforceability of such contract.
81 Nev. 268, 269 (1965) Utter v. Casey
both intended and actual, was in that state, law of Montana governed enforceability of
such contract.
4. Brokers.
Deletion of isolated transaction rule from Montana Brokerage Act was intended to
delete from law of that state the provision expressly excepting from Act the isolated
transactions. R.C.M. 1947, 66-1903.
5. Statutes.
Under Montana law, when Legislature declares existing statute to be amended that body
evinces an intention to make new act as a substitute for amended statute, and only those
portions of old law repeated in the new are retained and all portions omitted are repealed.
6. Brokers.
Montana brokerage contract providing for payment of commission to broker licensed in
Nevada but not in Montana was not enforceable with respect to commission allegedly
earned in connection with purchase of Montana property. R.C.M. 1947, 66-1903.
OPINION
This was an action to recover the sum of $59,583.75 alleged to be due appellants under an
oral agreement wherein respondent agreed to employ appellants to procure for him by
purchase certain ranching properties located in Montana, and that defendant would pay to
said plaintiffs a commission of 2 1/2% of the total contract price; that in the year 1959,
pursuant to said contract of employment and through the agency of appellants, respondent
purchased two ranch properties in Montana for the aggregate sum of $2,383,350 whereby the
defendant became indebted to plaintiffs under said contract in the sum of $59,583.75.
After issue joined, a trial was had before the court without a jury.
In his written decision the trial judge stated that the brokerage contract was made in
Montana where all the interested parties were present when the written contract of sale was
entered into between the seller and Casey, that although appellants were licensed real estate
brokers in Nevada they were not licensed in Montana, and that under Montana law the
brokerage agreement to pay a commission to unlicensed brokers was illegal and void.
81 Nev. 268, 270 (1965) Utter v. Casey
to pay a commission to unlicensed brokers was illegal and void.
The decision was followed by formal findings of fact, conclusions of law and judgment.
The findings are to the effect that on April 30, 1959, when the contract of purchase was
entered into, the parties hereto also entered into a brokerage contract in Montana; that the
performance of the brokerage contract was intended to take place and did take place wholly
within Montana; that neither appellant was a licensed real estate broker in Montana; and that
by virtue of the Montana law existing in 1959 a brokerage contract to pay a commission to an
unlicensed broker even if engaged in a single real estate transaction was void.
As conclusions of law the court determined that the validity and enforceability of the
brokerage contract are governed by the laws of Montana and that such laws make the
brokerage contract illegal and void. Judgment was entered in favor of respondent and against
appellants. Appeal is from the judgment.
Appellants state that two basic legal questions are presented: (1) whether or not a contract
for personal services such as that involved in the instant proceeding can be enforced in the
state where it is made, irrespective of where the real property may be situated; and (2)
whether or not under a construction of the Montana law a single transaction such as the one
here involved would be excepted from the Montana statute applicable to real estate brokers.
Before the court can address itself to the first question which the appellants present, the
court must dispose of appellants' assumption that the contract was made in the State of
Nevada. If the court's finding that the brokerage contract was made in Montana and not in
Nevada finds substantial support in the evidence, this disposes of appellants' first contention.
1. That there is a conflict in the evidence with reference to where the brokerage contract
was made is at once evident. Appellants refer to the testimony of Jack Utter to support
appellants' contention that the contract was made in Nevada. Utter testified to a conversation
had at his office in Reno before leaving Reno for Elko.
81 Nev. 268, 271 (1965) Utter v. Casey
No one else was present but Utter and Casey. Utter was asked to relate the substance of that
conversation. He answered:
A. Well, I had several listings in Elko, in the Elko County area, on different ranches
which I took John out and showed the Wysong Ranch, the Seaman Ranch to him.
It is not clear that what followed was part of the conversation in Reno or part of the
conversation on the automobile journey to Elko.
Asked to state the purpose of the trip, Utter said it was to find pasture or find a ranch that
was suitable to John Casey.
Q. * * * Was anything said about compensation?
A. Yes. John said that if we found the right thing he would pay me a commission.
Q. Did he say what that commission would be?
A. Well, 5 per cent.
This was categorically denied by Casey.
Moore joined them in Elko and the parties then flew over ranch properties in Elko County,
Nevada, and in Idaho, and then flew to Montana. In Montana negotiations were making
progress for the purchase of two extensive ranch properties. Utter reported back to Casey in
Montana the progress that was being made, and testified:
And at that time is when we made up and wrote down what we thought we might be able
to do, and John signed it and said that this is what he would do.
Mr. Casey said, Now, I'll pay your commission. You make the best deal that you can
make for me, and I'll pay the commission.' This conversation took place in Montana. Utter
testifies to another conversation with Casey at which Chuck Moore and Ralph Scott were also
present, at which the following took place:
Well, he told us if we could wait until he sold these steers he had on the ranch that fall,
that he would pay us, and we went along. This conversation was also in Montana. The
reference to the instrument signed by Casey at that time was to plaintiffs' Exhibit B. A brief
penciled memorandum to buy the Hairpin Corp.clearall stock in corp., covering all
assets--plus Cross Ranch clear and all assetsgross price $2,375,000.
81 Nev. 268, 272 (1965) Utter v. Casey
Ranch clear and all assetsgross price $2,375,000. Buyer pays 1/2 commission 2 1/2% to
Utter and Moore. Seller settles with Hagarty & Fox [Montana brokers]. This is followed by a
list of the amounts and dates of payments to be made. It is not dated but apparently was made
about the time of the memorandum agreement for the purchase by Casey of the Peterson
Ranch from Herman R. Peterson and Hairpin Livestock Company, a Montana corporation for
$1,369,956.03. This was followed by the recitals and amounts of the installment payments
and a more detailed description of the lands, cattle, machinery and equipment, water, grazing
rights, brands, etc. It recited that it was to be followed by a more detailed agreement covering
such items as security, default, and other necessary items. It contained the following
paragraph:
9. It is understood that no commission shall be payable by the Seller to anyone as a result
of this transaction. Buyer covenants that he was not induced to negotiate for this transaction
nor introduced to it by any Realtor or Agent, except C. W. Moore and Jack Utter; and, in the
event Seller should be held liable to anyone but [for?] any commission on the ground that
Buyer was located by such person, then Buyer agrees to indemnify Seller against any such
commission and hold Seller harmless therefrom.
This instrument was also executed in Montana.
Casey on defense testified: Q. Did you at any time have a conversation with either Mr.
Utter or Mr. Moore about paying a commission at Reno, Nevada? A. Absolutely not. It never
was discussed where any of this would be paid. * * * Q. You say they talked to you about the
Holland Livestock Ranch, and they mentioned the $5,000 commission. Maybe I have
forgotten something. Was there anything else they mentioned? * * * A. Listing on the
ranches, yes. Q. Which ranch? A. The Montana ranches.
The following took place on cross-examination by Mr. Robinson: Q. Mr. Casey, where
did you expect to pay this $5,000 commission that you were talking about? A. Dillon,
Montana. Q. Why didn't you? A. I don't know. I guess I was too busy or something at the time
and there was neverthey never acted like they needed it. Q. And they never agreed to
accept it; isn't that true? A. Yes, they did agree to accept it.
81 Nev. 268, 273 (1965) Utter v. Casey
and there was neverthey never acted like they needed it. Q. And they never agreed to accept
it; isn't that true? A. Yes, they did agree to accept it. * * * Q. Now, you say that you told them
that they would either take the $5,000 and expense money, or the deal would A. No, that
included the expense money. Q. Including expense money? A. Right. Q. Or the deal would go
down the line? A. Right. Q. And yet you didn't pay it to them, did you? A. Not at that time. *
* * Q. And this $5,000 was to cover their expenses? A. That's right, plus their time and
trouble.
[Headnotes 1-3]
Utter denied that he had at any time agreed with Mr. Casey to take $5,000 for their time
and trouble and expenses. Under the conflict above appearing, which conflict was resolved by
the trial court in favor of the respondent and there being substantial evidence to support the
findings above recited, it is not the function of this court to weigh the evidence. The finding
that the brokerage contract was made in Montana will not be disturbed. The place of
performance, both intended and actual, was also in Montana, and the property was located in
Montana. Under these circumstances there can be no question but that the law of Montana
will govern. Annot., 159 A.L.R. 226, 267; James v. Hiller, 85 Ariz. 40, 330 P.2d 999;
Tillman v. Gibson, 44 Ga.App. 440, 161 S.E. 630; 11 Am.Jur. 999; Conflict of Laws 167.
2. The applicability or inapplicability of the isolated transaction rule to the case at bar,
is determinative of this case. The Montana Brokerage Act was first enacted in 1921. Laws of
Montana 1921, Ch. 195, Sec. 2, RCM 1921, Sec. 4958. From 1921 until 1957 the Montana
Brokerage Act expressly provided that it did not apply to an isolated transaction. RCM 1947,
Sec. 66-1903, provided in part: The provisions of this act shall not apply to any person who
purchases property for his own use or account, nor to any person making one single
transaction a year, * * *. In Harbolt v. Hensen, 78 Mont. 228, 253 P. 257 (1927), the
recovery of a commission was allowed on an isolated transaction. There the court relied on
the express language of the statute.
81 Nev. 268, 274 (1965) Utter v. Casey
In 1957 the statute was amended and the language expressly permitting an isolated
transaction was deleted. Laws of Montana 1957, Ch. 129, p. 231, Secs. 1 and 2.
[Headnote 4]
The trial court in our opinion properly found that the 1957 amendment to the Montana
Brokerage Act (deletion of isolated transaction rule) was intended to eliminate from the law
of Montana the so-called isolated transaction rule and to overrule by statute Harbolt v.
Hensen, supra, as well as broaden the definition of a real estate broker and eliminate
exceptions from the definition.
In Jager v. Grommesh, 77 N.W.2d 873 (N.D. 1956), the court held, quoting Sutherland,
Statutory Construction, 3rd Edition, Section 1930:
Because it is defined as an act that changes an existing statute, the courts have declared
that the mere fact that the legislature enacts an amendment indicates that it thereby intended
to change the original act by creating a new right or withdrawing an existing one. Therefore,
any material change in the language of the original act is presumed to indicate a change in
legal rights. The legislature is presumed to know the prior construction of terms in the
original act, and an amendment substituting a new term or phrase for one previously
construed indicates that the judicial or executive construction of the former term or phrase did
not correspond with the legislative intent and a different interpretation should be given the
new term or phrase. Thus, in interpreting an amendatory act there is a presumption of change
in legal rights. This is a rule peculiar to amendments and other acts purporting to change the
existing statutory law.'
The presumption there discussed is applicable where a material provision in the original
act has been omitted from the amendment.
[Headnote 5]
The Supreme Court of Montana in State ex rel. Nagle v. Leader Co., 37 P.2d 561, 563
(Mont. 1934), adopted the same rule in the following language: In construing an act
amendatory of a statutory provision, it is undoubtedly the rule that, when the Legislature
declares an existing statute to be amended 'to read as follows,' as was done here, that
body evinces the intention to make the new act a substitute for the amended statute,
exclusively; only those portions of the old law repeated in the new are retained, and all
portions omitted are repealed.
81 Nev. 268, 275 (1965) Utter v. Casey
an act amendatory of a statutory provision, it is undoubtedly the rule that, when the
Legislature declares an existing statute to be amended to read as follows,' as was done here,
that body evinces the intention to make the new act a substitute for the amended statute,
exclusively; only those portions of the old law repeated in the new are retained, and all
portions omitted are repealed. State ex rel. Paige v. District Court, 54 Mont. 332, 169 P.
1180; State ex rel. Foot v. Burr, 73 Mont. 586, 238 P. 585; Hale v. Belgrade Co., 74 Mont.
308, 240 P. 371.
[Headnote 6]
Appellants contend that the Montana legislative act of 1957, eliminating the exception
which existed in the Montana statutes not requiring a broker's license when a single or
isolated transaction was involved, does not have the effect of requiring a person performing a
single or isolated transaction to have a license. They base this contention on the reasoning
that the repeal of said exception is not equivalent to an affirmative requirement that brokers
have a license even where single or isolated transactions are involved. This in turn they
support by the fact that the Montana legislature in 1963 made further enactments
strengthening the brokers' act. We reject this reasoning and conclude that the 1963 act was a
mere clarification of terms. The brokerage contract in question here was made in 1959 when
the Montana act of 1957 was in effect.
Appellants further contend that Montana had in terms adopted the common law and that
the original Montana licensing statute of 1921, with its isolated transaction exception, was
but declaratory of the common law, and that when the 1921 statute was repealed, it restored
the common law with the isolated transaction exception included. Case law, including the
cases hereinabove cited, do not sustain this contention, although some of the cases in
reviewing brokerage licensing statutes held to be revenue measures have resulted in some
confusion. This confusion does not appear to exist in a statute such as the Montana statute
which is clearly a statute executed under the police power, regulatory in its nature, and
providing that its violation is a punishable offense.
81 Nev. 268, 276 (1965) Utter v. Casey
and providing that its violation is a punishable offense. See Shorewood v. Standring, 19
Wash.2d 627, 144 P.2d 243; Yount v. Denning, 52 Kan. 629, 35 P. 207, 62 Kan. 217, 61 P.
803, 50 L.R.A. 103; Blair v. Security Trust & Savings Bank, 46 Cal.App.2d 665, 116 P.2d
646; Lucientes v. Bartholomae Oil Corp., 64 Cal.App.2d 443, 149 P.2d 28, and Annot. 169
A.L.R. 767, 772-775.
Judgment is affirmed.
Collins, D. J., and Wines, D. J., concur.
____________
81 Nev. 276, 276 (1965) Fernandez v. State
RALPH ANGLUIS FERNANDEZ, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 4760
May 13, 1965 402 P.2d 38
Appeal from verdict and judgment of guilty and order denying new trial, Second Judicial
District Court, Washoe County; Grant L. Bowen, Judge.
Prosecution for possession of cheating device in playing slot machines. From judgment of
the trial court and from order of that court denying new trial, defendant appealed. The
Supreme Court, Zenoff, D.J., held that in prosecution for use of cheating device in playing
slot machine, it was not necessary to establish that machine was licensed.
Affirmed.
[Rehearing denied June 10, 1965]
Harry A. Busscher, of Reno, for Appellant.
Ahlswede, Deputy District Attorney, Washoe County, for Respondent.
1. Fraud.
In prosecution for possession of device for cheating in playing slot machine, it was not necessary to
establish that machine was licensed. NRS 465.080.
2. Criminal Law.
In prosecution for possession of device for cheating in playing slot machine, evidence of defendant's
conduct two days before his arrest, at same place, in like manner and under similar circumstances was
admissible to show motive, Intent, identity, absence of mistake or accident, or common scheme or plan.
NRS 465.080.
3. Criminal Law.
Prosecutor's remark to jury, In the defendant's case, as feeble as it was, there was no denial that the
defendant ever possessed this device * * * was not objectionable as commenting on defendant's failure to
testify on his own behalf. NRS 178.235.
4. Criminal Law.
Defendant's failure to testify cannot directly or indirectly be subject of comment by prosecution, but
reference to evidence or testimony which stands uncontradicted is acceptable. NRS 178.235.
OPINION
Appellant was arrested at Poor Pete's Casino in Reno, Nevada, and charged with
possession of a cheating device in violation of NRS 465.080.
1
He had been observed by at
least one witness sticking something into a slot machine on January 15, 1964 in the same
manner and in the course of the same conduct as two days previously at the same casino. A
metallic instrument was taken from him at the time of his apprehension and introduced into
evidence at the trial.
[Headnote 1]
As one ground of error he assigns the failure of the state to prove that the slot machine into
which the defendant was inserting the object was a licensed machine in accordance with the
language of the statute and that this, therefore, was a failure to prove a material allegation of
the information.
This court in construing NRS 465.080 has heretofore decided that the clause licensed
gambling game is not carried forward to the particular unlawful acts later enumerated in
the statute.
____________________

1
NRS 465.080 states in pertinent parts: It shall be unlawful for any person playing any licensed gambling
game to * * * employ or have on his person any cheating device to facilitate cheating * * * in playing any slot
machine, * * *.
not carried forward to the particular unlawful acts later enumerated in the statute. Stokes v.
State, 76 Nev. 474, 357 P.2d 851. There being no requirement to establish the license, the
point then becomes immaterial and it is not necessary for us to pass upon other questions
raised concerning the best evidence rule or the use of secondary evidence to confirm the
actual existence of a license. But see Fish v. Fleishman, 87 Idaho 126, 391 P.2d 344;
Davidson v. State, 184 Tenn. 468, 201 S.W.2d 652; 4 Wigmore on Evidence 1242-1248
(3rd Ed. 1940).
Appellant's requested instructions, too, fall by the wayside since they relate principally to
absence of the license certificate. Suffice it to say, however, this court is satisfied that the jury
was adequately and competently instructed by the trial court.
[Headnote 2]
Evidence of appellant's conduct two days before his arrest on this charge, at the same
place, in a like manner and under similar circumstances is admissible to show motive, intent,
identity, absence of mistake or accident, or a common scheme or plan. Nester v. State, 75
Nev. 41, 334 P.2d 524; Wallace v. State, 77 Nev. 123, 359 P.2d 749; Wyatt v. State, 77 Nev.
490, 367 P.2d 104; State v. Nystedt, 79 Nev. 24, 377 P.2d 929.
Appellant further alleges as error that the prosecuting attorney, in his summation to the
jury, commented on appellant's failure to testify on his own behalf, which, if true, would
constitute reversible error. NRS 178.235;
2
Griffin v. California, 85 S.Ct. 1229 (Apr. 28,
1965).
[Headnote 3]
The prosecutor said to the jury, In the defendant's case, as feeble as it was, there was no
denial that the defendant ever possessed this device * * *. Defense counsel moved for a
mistrial which the trial court denied.
____________________

2
NRS 178.235 states that: If a defendant offers himself as a witness, he may be cross-examined by the
counsel for the state the same as any other witness. His neglect or refusal to be a witness shall not in any manner
prejudice him, nor be used against him on the trial or proceeding.
counsel moved for a mistrial which the trial court denied.
The Nevada Supreme Court has held such comment not objectionable. State v. Clarke, 48
Nev. 134, 228 P. 582; State v. Gambetta, 66 Nev. 317, 208 P.2d 1059; Bean v. State, 81 Nev.
25, 398 P.2d 251; State v. Green, 81 Nev. 173, 400 P.2d 766.
In Griffin, the U.S. Supreme Court was concerned that California's constitutional
permission allowing direct comment by court and prosecution when defendant does not
testify was violative of the Fifth Amendment. Cal. Const. Art. I, 13. Through the
application of the due process clause of the Fourteenth Amendment, that court declared the
California provision unconstitutional.
It may be well to note that the federal courts faced with the same or similar problem as
here presented have repeatedly sustained like references made to their juries. Hood v. United
States, 10 Cir., 59 F.2d 153; Baker v. United States, 8 Cir., 115 F.2d 533, cert. denied, 312
U.S. 692; Rose v. United States, 8 Cir., 227 F. 357, cert. denied, 239 U.S. 647; Langford v.
United States, 9 Cir., 178 F.2d 48, cert. denied, 339 U.S. 938; United States v. Borda, 4 Cir.,
285 F.2d 405, cert. denied, 365 U.S. 844; Sterling v. United States, 9 Cir., 333 F.2d 443, cert.
denied, 379 U.S. 933 (Dec. 7, 1964).
[Headnote 4]
The distinction appears to be that defendant's failure to testify cannot directly or indirectly
be the subject of comment by the prosecution, but a reference to evidence or testimony that
stands uncontradicted is acceptable. Paraphrasing Griffin, what the jury may infer given no
help from the court (or prosecution) is one thing. What they may infer when the court (or
prosecution) solemnizes the silence of the accused into evidence against him is quite another.
Permitting such comment imposes a penalty for exercising a constitutional privilege. The
dividing line must be approached with caution and conscience.
Affirmed.
____________
81 Nev. 280, 280 (1965) Aldabe v. Adams
ALVERA M. ALDABE, Appellant, v.
ROBERT TAYLOR ADAMS, Respondent.
No. 4857
May 14, 1965 402 P.2d 34
Appeal from judgment of the Second Judicial District Court, Washoe County; Thomas O.
Craven, Judge.
Action by divorced wife alleging fraud and conspiracy in divorce proceedings. The lower
court entered summary judgment for codefendant and plaintiff appealed. The Supreme Court,
Thompson, J., held that evidence supported finding that plaintiff had notice of acts
constituting alleged fraud more than three years before commencement of action, and that
action was barred by limitations.
Affirmed.
James W. Johnson, Jr., of Reno, and Lawrence K. Karlton, of Sacramento, for Appellant.
Goldwater, Taber and Hill, of Reno, for Respondent.
1. Judgment.
Conflict in sworn testimony of party against whom summary judgment is entered cannot create genuine
issue of material fact. NRCP 56.
2. Judgment.
Allegation in complaint that actions constituting conspiracy which took place more than four years before
commencement of action were not known to plaintiff until less than four years before commencement, thus
barring operation of four-year statute of limitations, was insufficient to raise genuine issue of fact to
preclude summary judgment. NRCP 56(e); NRS 11.220.
3. Limitation of Actions.
Party claiming fraud has obligation of excusing failure to discover fraud in three years after it occurred to
avoid operation of statute of limitations, and there must be showing that party had no actual or presumptive
knowledge of facts sufficient to but party on inquiry. NRS 11.190, subd. 3(d).
Sworn statement of party made more than three years before commencement of action for alleged fraud
disclosed party's knowledge of facts which she subsequently claimed constituted fraud, and if party's
knowledge was not then complete she was under duty to exercise proper diligence to learn more so that
he could timely prosecute action for alleged fraud.
so that he could timely prosecute action for alleged fraud. NRS 11.190. subd. 3(d), 11.220.
5. Judgment.
Summary judgment procedure is not available to test and resolve credibility of opposing witnesses to fact
issue. NRCP 56.
6. Judgment.
Summary judgment procedure may appropriately be invoked to defeat misrepresentation of party against
whom judgment is sought when statement is claimed to be source of genuine issue of fact for trial. NRCP
56.
7. Judgment.
That there was colorable conflict in plaintiff's affidavits did not require trial court to determine that there
was issue of material fact as to date on which party discovered alleged fraud so as to bar summary
judgment on limitation issue. NRCP 56.
Notice to attorney of any matter relating to business of his client in which attorney is engaged is notice to
client.
Party could not disclaim knowledge of provisions of divorce decree to which she was party where copy
of decree was served upon party's counsel in then pending litigation.
10. Conspiracy.
Suit for damages based upon alleged civil conspiracy is permissible. NRS 11.220.
11. Conspiracy.
Damages for which recovery may be had in civil action is not conspiracy itself but is injury to plaintiff
produced by specific overt act. NRS 11.220.
Right to relief by action for civil conspiracy arises at time of injury and statute of limitations begins to
run at moment such injury occurs. NRS 11.220.
In action alleging conspiracy to fraudulently procure divorce divesting plaintiff of her property and other
rights any injury was sustained upon entry of decree and claim for relief became barred by limitations four
years later.
OPINION
[Headnote 1]
We are asked to overturn a summary judgment for Robert Taylor Adams, one of the
defendants below and the respondent here, which rests upon the statutes of limitation barring
a claim of damages for fraud (156 {3) {d)) and conspiracy {NRS 11.220).1 The
contention is made that a genuine issue of material fact remains as to the bar of
limitations and that summary judgment was improper for that reason.
11.190 (3) (d)) and conspiracy (NRS 11.220).
1
The contention is made that a genuine issue
of material fact remains as to the bar of limitations and that summary judgment was improper
for that reason. Dredge Corp. v. Wells Cargo, Inc., 80 Nev. 99, 389 P.2d 394. We rule that the
appellate contention is unsound, and affirm the entry of summary judgment. Our ruling stands
mainly on the proposition that a genuine issue of material fact may not be created by the
conflicting sworn statements of the party against whom summary judgment was entered.
In the lower court three individuals in addition to Adams were similarly charged by Alvera
Aldabe with fraud and conspiracyAttorney Jack Streeter, her former husband Charles
Aldabe, and David Evans. The charges of fraud and conspiracy in this case relate to the
manner in which a prior Nevada divorce case was handled.
On April 29, 1960, the Aldabes' marriage of 19 years was dissolved by a final Nevada
divorce decree. The divorce action was initiated by Alvera on July 13, 1959. Her counsel in
that case was Jack Streeter. The verified complaint alleged her domicile and residence in
Nevada for a period of 18 years immediately preceding. She sought custody of and support
for two minor children, her interest in community property, a divorce and other proper relief.
Charles responded by answer and counterclaimed for divorce. His counsel was Robert Taylor
Adams. Alvera did not appear at the hearing; her counsel did. The divorce was awarded to
Charles on his counterclaim. He was also given custody of their son, joint custody of their
daughter, and most of the property including a valuable ranch and livestock. The instant
action was commenced on June 16, 1964, more than four years after the decree of divorce
was entered. As indicated in Footnote No.
____________________

1
NRS 11.190(3) (d): Actions other than those for the recovery of real property can only be commenced as
follows: * * * Within 3 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.
NRS 11.220An action for relief not provided for by NRS 11.190-11.220 inclusive must be commenced
within four years after the cause of action shall have accrued. An action charging conspiracy is such an action.
indicated in Footnote No. 1, the bar of limitations is available against a claim for relief
grounded on fraud if such claim is not asserted within three years after discovery by the
aggrieved party of the facts constituting the fraud. The statute of limitations runs against an
action based on conspiracy in four years, viz., such an action must be commenced within four
years after the cause of action shall have accrued. Accordingly our inquiry as to the claim of
fraud is to ascertain the date of Alvera's discovery of the facts which she asserts to constitute
fraud. With regard to the civil conspiracy charge we must adopt a rule for Nevada specifying
when that cause of action accrues and calculate whether the four year limitation is a bar.
Stripped of its overburden the complaint charges that the perpetrators of fraud and
co-conspirators each knew that neither Alvera nor her husband was a resident of Nevada, but
proceeded with the divorce case anyway. Further, she claims that her attorney and Adams
fraudulently and in furtherance of the conspiracy stipulated as to the character of the Aldabe
property interests, to her great damage, for the decree as to property was mainly governed by
that stipulation. Her conclusory allegations are: That all the defendants at a time unknown to
plaintiff, made and entered into a conspiracy to coerce and defraud plaintiff, and deprive
plaintiff of her legal rights and property, and That plaintiff did not learn of the facts
indicating the existence of fraud and a conspiracy to defraud until after November, 1960.
[Headnote 2]
We may, of course, summarily reject any contention here that a genuine issue of fact about
the bar of limitations was created by the bare allegation of the complaint that she learned of
the fraud and conspiracy after November, 1960. NRCP 56(e);
2
Franktown v. Marlette, 77
Nev. 348, 364 P.2d 1069; Dredge Corp. v. Husite, 7S Nev. 69
____________________

2
NRCP 56(e) in pertinent part reads: * * * When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his
response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against
him.
Husite, 78 Nev. 69, 369 P.2d 676. The rule and the cited cases direct our attention to an
evaluation of the evidentiary material presented to the court on the summary judgment
motion. Accordingly we turn to discuss the evidence submitted to the lower court.
1. Fraud Within four months after commencing her Nevada divorce action Alvera filed a
suit for divorce in California. The jurisdictional allegations in the two cases, each under oath,
are wholly incompatible. One of them is false. Four days after starting the California case
Alvera filed a verified reply to the counterclaim of her husband in the Nevada case, in which
she asked that she be granted the relief prayed for in her Nevada divorce complaint.
Thereafter, on April 25, 1960, and before the Nevada case was brought on for trial, Alvera
swore to an affidavit in the California case stating, among other things: That defendant is a
strong and able bodied man and that he is in possession of community property of plaintiff
and defendant which has a value in excess of $250,000.00; that defendant is trying to conceal
the community character of said property and is claiming most of it as his sole and separate
property; that said claim is false and fraudulent and intended to deprive plaintiff of her just
share of the community property. In addition, she stated in that affidavit that she had
retained a California attorney to prosecute this action to a proper conclusion, and resist
defendant's efforts to deprive plaintiff of her legal rights by the spurious suit in the State of
Nevada.
[Headnotes 3, 4]
The rule of Howard v. Howard, 69 Nev. 12, 239 P.2d 584, places an obligation on the
party claiming fraud to excuse the failure to discover it within three years after it occurred.
There must be a showing that she had no actual or presumptive knowledge of facts sufficient
to put her on inquiry. Alvera's affidavit of April 25, 1960, does not satisfy the Howard
standard. Rather, the opposite is true. By that sworn statement she disclosed her knowledge of
facts which she believed to constitute fraud. If her knowledge was not then complete she was
under a duty to exercise proper diligence to learn more.
under a duty to exercise proper diligence to learn more. Howard v. Howard, supra.
Seeking to avoid the Howard rule, Alvera directs our attention to another of her sworn
statementsan affidavit filed below in opposition to the motion for summary judgment. This
affidavit (and two othersone of a private investigator and another by a California lawyer)
purports to show that Alvera did not really know enough about the fraud in April 1960 to do
anything about it. Her knowledge was incomplete. A legal discovery did not occur until
much later. The conflict between her April 25, 1960, affidavit and her affidavit below (sworn
to on August 15, 1964) is manifest. It is this conflict (she argues) which creates an issue of
material fact about the date when she discovered the alleged fraud, and that conflict must be
resolved by trial and not otherwise. We reject this contention.
[Headnotes 5-7]
Our law does not promise a trial to one who views the sanctity of an oath so lightly, if
preliminary procedures show her cause to be unworthy. When Rule 56 speaks of a genuine
issue of material fact, it does so with the adversary system in mind. The word genuine has
moral overtones. We do not take it to mean a fabricated issue. Though aware that the
summary judgment procedure is not available to test and resolve the credibility of opposing
witnesses to a fact issue (Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979), we hold that
it may appropriately be invoked to defeat a lie from the mouth of a party against whom the
judgment is sought, when that lie is claimed to be the source of a genuine issue of fact for
trial. Schoener v. Waltman, 125 Cal.App.2d 182, 270 P.2d 543. In these circumstances it was
permissible for the lower court to prefer Alvera's affidavit of April 25, 1960, as showing the
true date of discovery, and thus bar her claim of fraud. Cf. Manville v. Manville, 79 Nev. 487,
387 P.2d 661.
[Headnotes 8, 9]
In any event the record shows that on September 19, 1960, Charles Aldabe filed an answer
in the California action in which he alleged that on April 29, 1960, the Nevada court had
entered its decree denying Alvera a divorce and awarding a divorce to him.
action in which he alleged that on April 29, 1960, the Nevada court had entered its decree
denying Alvera a divorce and awarding a divorce to him. A copy of the Nevada decree of
divorce was attached to his answer, served upon Alvera's California counsel, and pleaded as a
bar to the California case. Though Alvera disclaims any knowledge of the provisions of the
Nevada decree until a much later date, our law denies that disclaimer. Milner v. Dudrey, 77
Nev. 256, 362 P.2d 439. The rule of Milner is that notice to the attorney of any matter
relating to the business of the client in which the attorney is engaged is notice to the client.
Applied here, it means that Alvera discovered the fraud on September 19, 1960, more than
three years before the present suit was started. Her fraud charge is barred for this additional
reason.
[Headnotes 10-12]
2. Conspiracy The tort of civil conspiracy is recognized in Nevada, and a suit for
damages based thereon may be permissible. Hotel Riviera, Inc. v. Short, 80 Nev. 505, 396
P.2d 855. The bar of limitations is four years from the date the cause of action accrues. NRS
11.220. Court expression is not in harmony as to the event marking the accrual date. See
Annot., 62 A.L.R. 1385. One court suggests that the limitation period begins to run from the
last overt act done in pursuance of the conspiracy. Schessler v. Keck, 125 Cal.App.2d 827,
271 P.2d 588; another, from the last overt act causing damage to the plaintiff, Kansas City v.
Rathford, 353 Mo. 1130, 186 S.W.2d 570; a third, from each overt act causing damage,
Roche v. Blair, 305 Mich. 608, 9 N.W.2d 861; and others prefer the date of injury or damage
as the starting point. Suckow Borax Mines v. Borax Consolidated Ltd., 9 Cir., 185 F.2d 196;
Rutkin v. Reinfeld, 2 Cir., 229 F.2d 248. We also prefer the date of injury or damage rule, for
it is in line with the theory of a civil conspiracy suit. The court in Rutkin v. Reinfeld, supra,
expressed it by the following language which we approve: The damage for which recovery
may be had in a civil action is not the conspiracy itself, but the injury to the plaintiff produced
by specific overt actsthe charge of conspiracy in a civil action is merely the string
whereby the plaintiff seeks to tie together those who, acting in concert, may be held
responsible in damages for any overt act or acts. it is at the time of injury that the right
to relief by action arises and the statute therefore begins to run at the moment such
injury occurs."
conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together
those who, acting in concert, may be held responsible in damages for any overt act or acts.
it is at the time of injury that the right to relief by action arises and the statute therefore
begins to run at the moment such injury occurs.
[Headnote 13]
Here the so-called conspiracy among the defendants below was to fraudulently procure a
Nevada divorce divesting Alvera of her property and other rights. Arguendo, if the charge
were true, her damage or injury was sustained upon entry of the divorce decree on April 29,
1960. The purpose of the conspiracy was realized on that date, and the damage done.
Therefore, her claim for relief on this ground was outlawed on April 29, 1964. Her complaint
below was not filed until June 16, 1964, and is too late.
3. Caveat. Apart from the bar of limitations, we doubt whether one in Alvera's position
(plaintiff in the Nevada divorce action, who challenges the jurisdiction of the Nevada court)
may later sue for damages alleged to have been caused by the fraudulent and conspiratorial
conduct of the participants (the defendant, the attorneys and the witnesses) in the divorce
case. The point was hinted at but not directly raised below or here. Perhaps the sole remedy is
seasonably to challenge the validity of the divorce by an appropriate proceeding for that
purpose, for if the divorce is valid a predicate does not exist for a damage claim. This Alvera
has not done. It would indeed be incongruous to acknowledge the validity of her divorce and
also allow a suit for damages caused by it. A cause of action for damages for an alleged fraud
and civil conspiracy, culminating in the procurement of a divorce, seems out of place in this
setting.
Affirmed.
Badt, J., and Collins, D. J., concur.
____________
81 Nev. 288, 288 (1965) Barringer v. Gunderson
ROBERT E. BARRINGER; FRANCES B. HAWKINS, as Executrix of the Estate of L. O.
HAWKINS, aka LESLIE O. HAWKINS, aka LESLIE OLIVER HAWKINS, Deceased;
HOWARD W. CANNON; MARY A. BARRINGER and LAURA HELEN ROOT,
Appellants, v. E. M. GUNDERSON, Guardian ad Litem of CARLITA RAY, an Infant; IDA
ANGELOT RAY; TENNYS MORTENSEN, as Administratrix of the Estate of TRUMAN
NYE, Deceased; and WAYNE R. MILLINGTON, Respondents.
No. 4773
TENNYS MORTENSEN, as Administratrix of the Estate of TRUMAN NYE, Deceased; and
WAYNE R. MILLINGTON, Appellants, v. E. M. GUNDERSON, Guardina ad Litem of
CARLITA RAY, an Infant; IDA ANGELOT RAY; ROBERT E. BARRINGER; FRANCES
B. HAWKINS, as Executrix of the Estate of L. O. HAWKINS, aka LESLIE O. HAWKINS,
aka LESLIE OLIVER HAWKINS, Deceased; HOWARD W. CANNON; MARY A.
BARRINGER and LAURA HELEN ROOT, Respondents.
No. 4774
E. M. GUNDERSON, Guardian ad Litem of CARLITA RAY, an Infant, Appellant, v.
ROBERT E. BARRINGER; FRANCES B. HAWKINS, as Executrix of the Estate of L. O.
HAWKINS, aka LESLIE O. HAWKINS, aka LESLIE OLIVER HAWKINS, Deceased;
HOWARD W. CANNON; MARY A. BARRINGER; LAURA HELEN ROOT; IDA
ANGELOT RAY; TENNYS MORTENSEN, as Administratrix of the Estate of TRUMAN
NYE, Deceased; and WAYNE R. MILLINGTON, Respondents.
No. 4775
May 18, 1965 402 P.2d 470
Appeals from judgment, orders denying motions to amend findings, conclusions and
judgment, and orders denying motions for new trial of the Eighth Judicial District Court,
Clark County; David Zenoff, Judge.
denying motions for new trial of the Eighth Judicial District Court, Clark County; David
Zenoff, Judge.
Three cases involved with determination of interests of testator's wife, daughter, and
pretermitted heir upon termination of testamentary income trust. The lower court rendered
judgment distributing half of property to wife, a sixth each to heir and daughter, and creating
residuum of remaining sixth, and appeals were taken. The Supreme Court, Badt, J., held that,
inter alia, where heir could not claim interest in the half of estate bequeathed pursuant to
antenuptial agreement, wife was entitled to half of proceeds, daughter was entitled to
two-thirds of remaining half rather than the half she had been bequeathed, by reason of
pretermitted heir's third interest in that portion of estate, that pretermitted heir was entitled to
one-sixth, and that creation of residual fund of one-half of daughter's interest was
unnecessary.
In Appeals Nos. 4773 and 4774 the judgment, the orders denying motions to amend
findings, conclusions and judgment, and the orders denying motion for new trial
affirmed. In Appeal No. 4775 judgment affirmed as modified. Order denying motions to
amend findings, conclusion and judgment, and order denying motion for new trial
affirmed.
[Rehearing in Appeal No. 4773 denied June 14, 1965]
Hawkins, Cannon & Hawkins, of Las Vegas, for Robert E. Barringer; Frances B. Hawkins,
as executrix of the estate of L. O. Hawkins; Howard W. Cannon; Mary A. Barringer and
Laura Helen Root.
E. M. Gunderson, of Las Vegas, for E. M. Gunderson, guardian ad litem of Carlita Ray.
Vargas, Dillon, Bartlett & Dixon, of Reno, for Ida Angelot Ray.
Myron E. Leavitt, of Las Vegas, for Tennys Mortensen and Wayne R. Millington.
1. Descent and Distribution.
Pretermitted heir of decedent, one-half of whose estate was subject to antenuptial agreement with wife
was entitled to mere third of remaining half of estate not so subject to contract. NCL 1931-1941 Supp.
9882.297.
2. Infants.
Doctrine of estoppel could not be applied against decedent's minor daughter, claiming that interest of
pretermitted heir and his privies in estate property was improperly acquired through mistake of fact in prior
litigation which took place before it had been revealed to court that there was antenuptial agreement.
3. Judgment.
Determination in widow's successful action for specific performance of antenuptial agreement rejecting
claim that she was estopped to assert that pretermitted heir was not entitled to share in portion of estate
subject to agreement was res judicata and could not be relitigated subsequently between same parties.
4. Wills.
Bequest to nephew of monthly income was contingent interest expiring at nephew's death, not vested
interest continuing in estate, where provision was not to be put into effect unless provision for testator's
wife was first put into effect and intent to limit income to nephew's life was evidenced by testator's failure
to make gift over in event of nephew's death in contrast to gift over in case of other beneficiaries.
5. Contracts.
Prime rule in construing contracts is to ascertain intention of the parties.
6. Contracts.
If intention of parties is clear from instrument itself, contract requires no construction.
7. Contracts.
If intention of parties is not clear from instrument itself, it may be ascertained from language of
agreement considered in light of surrounding circumstances.
8. Contracts.
In construing ambiguous contract, court should place itself as nearly as possible in situation of parties.
Court was authorized to make reference to husband's will executed some three years after antenuptial
agreement, as later writing relating to same subject, in determining whether ambiguous reference to net
proceeds of income trust husband agreed to create referred to corpus as well as income of trust at time
trust terminated.
10. Wills.
Determinations that purpose of testamentary trust created for 20-year period to provide support for family
had been frustrated, when intended corpus could not be realized and monthly income payments were not
available and when income provisions for daughter existed for only short period and support of wife
absorbed almost entire proceeds, and that trust should be accelerated were discretionary.
11. Descent and Distribution.
Where pretermitted heir could not claim interest in the half of estate bequeathed pursuant to antenuptial
agreement, upon termination of income trust wife was entitled to half of proceeds, daughter was entitled to
two-thirds of remaining half rather than the half she had been bequeathed and pretermitted heir was entitled
to one-sixth of estate.
OPINION
These three appeals, which, although they have some points of law in common, for the
most part raise different questions of law, were for convenience consolidated for argument.
They were separately and elaborately briefed and separate counsel appeared for the respective
appellants, and respondents.
The history of this matter appears in the case of Gunderson v. Barringer, 76 Nev. 133, 350
P.2d 397. It appears therefrom that after the will of Carl Ray, deceased, was admitted to
probate, Barringer filed a petition in the estate proceedings claiming one third of the estate as
a pretermitted heir. That petition was granted and this decision was sustained on appeal. In re
Carl Ray, 69 Nev. 204, 245 P.2d 990. Thereafter, Ida Angelot Ray, the widow of Carl Ray,
commenced an independent action for the specific performance of an antenuptial agreement
under which the decedent agreed to devise certain property to her in trust. This contract
provided that the decedent would make a will wherein he would bequeath all his property to a
trustee with a provision that his widow would receive one half the net proceeds of the trust
estate. The agreement further provided that the provisions thereof would be in lieu of any
other claim against decedent's estate. The decedent did execute his will in compliance with
said antenuptial agreement, and in addition provided that the remaining one half of the net
proceeds of the trust was to go to Carlita Ray, the minor child of decedent and Ida Angelot
Ray. This contract was held valid. Barringer v. Ray, 72 Nev. 172, 298 P.2d 933.
During the administration of the estate and pursuant to the decision in the case of In re
Carl Ray, supra, a one-third interest in the Professional Building in Las Vegas {the chief
asset of the estate in Nevada) was conveyed by the estate to Barringer.
to the decision in the case of In re Carl Ray, supra, a one-third interest in the Professional
Building in Las Vegas (the chief asset of the estate in Nevada) was conveyed by the estate to
Barringer. Thereafter, upon final distribution of the estate, the remaining two-thirds interest in
said land passed in trust to the trustees named in the will.
It was the obvious intention of the testator that all his estate (except for certain minor
bequests) was to be distributed to the trustees named in his will in trust for his widow and
minor child, who were to receive in equal shares the net proceeds therefrom all consistent
with the covenants contained in the antenuptial agreement. The fact that Barringer would be
awarded one third of the estate before the commencement of the trust was not contemplated
by the testator at the time he executed his will, nor was Mrs. Ray's antenuptial agreement
brought to the attention of the court when it ordered distribution to Barringer. The foregoing
presents for determination the question whether Barringer is entitled to retain one third of the
entire estate which was distributed to him as aforesaid or whether he is entitled as a
pretermitted heir to share only in that portion of the estate which the decedent could without
restriction dispose of by will.
The decedent because of the antenuptial agreement was legally empowered to dispose of
only one half of his estate by will and the proceeds from the other half contractually belonged
to his widow. The first half he was free to dispose of as he saw fit and he made his minor
daughter the beneficiary of this half. As a pretermitted heir, under the laws of intestate
succession, Barringer would be entitled to one third of that half of the estate which was not
limited by Mrs. Ray's antenuptial agreement.
An amended complaint for declaratory judgment was filed in the lower court, in which the
foregoing facts are alleged, which sought a declaration of the rights and interest held in the
Professional Building by each of the parties named herein.
In Ray v. Barringer, 73 Nev. 212, 314 P.2d 378, this court stated: Because of unusual
developments in the probate proceedings, the interests of the minor quite clearly demand
attention and a determination of her rights under present circumstances should be had."
clearly demand attention and a determination of her rights under present circumstances
should be had.
Barringer and his privies claim no interest in the trust estate, but they do claim the
one-third interest in the Professional Building which was distributed to Barringer as
aforesaid. In Gunderson v. Barringer, 76 Nev. 133, 350 P.2d 397, we stated that if the interest
of Barringer and his privies in said building was improperly acquired through a mistake of
fact, an action to determine such matter would be proper. This is the obvious purpose of the
present action, which is now involved in appeal No. 4773, Barringer, et al. v. Gunderson, et
al.
After a trial in the court below the court made findings that because of the antenuptial
agreement only one half of the Professional Building should have been included in the
inventory of the probate proceedings of the estate of Carl Ray, deceased; that therefore
Barringer should have received only one third of the one half of the property subject to the
probate proceedings, to wit, one third of the one half of such property, or a one-sixth interest
in the Professional Building. The lower court stated in paragraph 9 of its findings that the
court (Judge McNamee) in ordering distribution to Barringer of a one-third interest in the
Professional Building acted on a state of facts then known by it at the time of the hearing
and ordered distribution of a one-third interest in the estate of Carl Ray, deceased, to be
distributed to Robert E. Barringer. Pursuant to said finding the trial court concluded that
Barringer and his privies were entitled to only a one-sixth interest in the Professional
Building and that therefore by receiving one third thereof, hold one sixth in trust for the
benefit of the trust estate and must account to the trustees for one sixth of the rents and profits
received from the said Professional Building. It is this part of the judgment that Barringer and
his privies seek to have reversed by the appeal in Case No. 4773.
The antenuptial agreement under which Ida Angelot Ray claims an interest in the
Professional Building provides: That the first party [Carl Ray] shall make and keep in
existence a valid will, wherein and whereby all of his property will be bequeathed to a trustee
and said Will shall provide that the second party [Ida Angelot] shall receive one-half {1J2)
of the net proceeds of the said trust estate, upon the condition that the second party shall
have lived with first party as his wife until the date of his death and during said time has
been a loyal, devoted wife to him."
Will shall provide that the second party [Ida Angelot] shall receive one-half (1/2) of the net
proceeds of the said trust estate, upon the condition that the second party shall have lived with
first party as his wife until the date of his death and during said time has been a loyal, devoted
wife to him.
By its findings, conclusions, and judgment the trial court ordered distributed to Ida
Angelot Ray forthwith a one-half interest in the Professional Building. It is from this part of
the judgment that Gunderson, as guardian of Carlita Ray, has appealed in Case No. 4775 and
he seeks a reversal because he maintains that the provisions of the antenuptial agreement
quoted above give Ida Angelot Ray no corpus of the estate, but only one half of the net
proceeds of the trust estate and only for the duration of the trust.
The will of Carl Ray provides that Truman Nye, the nephew of Carl Ray, receive the sum
of $100 per month for and during the term of the trust created by said will. The term of such
trust was fixed in the will at 20 years. In the trial below the court determined that this bequest
was to Truman Nye for his lifetime only and terminated upon his death and that therefore
Tennys Mortensen, the administratrix of Truman Nye, deceased, was not entitled to any
payments after the death of Truman Nye. It is this part of the judgment that Tennys
Mortensen in Case No. 4774 seeks to have reversed on appeal.
Appeal No. 4773
The court below in dealing with the claim of Barringer that he was entitled as a
pretermitted heir to a full one-third interest in the Professional Building in Las Vegas (the
main Nevada asset of the Carl Ray estate) despite the fact, as later developed, that the testator
was so limited by contract that he had only a one-half interest therein subject to his
testamentary disposition, first assayed the situation as follows:
During the course of this trial testimony was sought to be admitted from two attorneys
who discussed the will with the testator during his lifetime. One of those attorneys, Paul
Angelillo was also originally the executor of the estate. The other attorney, Henry Bodkin
who once represented Ray during his lifetime, and Angelillo as well, testified as to their
impressions of the intention of the testator.
once represented Ray during his lifetime, and Angelillo as well, testified as to their
impressions of the intention of the testator. It developed that neither one of them actually had
the will executed in final form in their presence and that Carl Ray himself to some extent
prepared part of the will and had the same executed independently. The value of the
testimony of both lawyers, while respected for its integrity, is comparatively valueless and the
court disregards such testimony preferring to refer to the will itself to ascertain to the best of
its ability the true intention of the testator. The activities of the testator in going from one
lawyer to another and then ultimately preparing in effect his own will, were eccentric and
extremely costly to those whom he professed to love so much.
The Honorable Frank McNamee sitting as District Court Judge, Department I, in the early
determination of Barringer's rights as pretermitted heir directed that Barringer be entitled to
one-third of the estate. At that time it had not been revealed to Judge McNamee that there
was an ante-nuptial agreement between the deceased and Mrs. Ray. Consequently Judge
McNamee could act only upon the facts and state of the record then before him. Therefore his
determination of the extent of the one-third interest was based upon the entire estate, not that
based upon the estate not otherwise limited by contract, as per Section 9882.297 [N.C.L.
193141 Supp.].
9882.297. DESCENTS AND DISTRIBUTIONS, MANNER-WHEN TO ESCHEAT.
297. When any person having title to any estate, which is his or her separate property, not
otherwise limited by contract, shall die intestate as to such estate, it shall descend and be
distributed, subject to the payment of his or her debts, in the following manner:
FirstIf there be a surviving husband or wife, and only one child, or the lawful issue of
one child, one-half to the surviving husband or wife, and one-half to such child or issue of
such child. If there be a surviving husband or wife, and more than one child living, * * *,
one-third to the surviving husband or wife, and the remainder in equal shares to his or her
children, * * *.' "The judgment of the first case was the right of Barringer to participate.
The judgment of the first case was the right of Barringer to participate. The extent of the
participation merely flowed from the right established. Thereafter the antenuptial contract
was propounded and affirmed. The extent of Barringer's participation diminishes but not his
right.
The intention of the testator being that his widow receive one-half of his estate and the
Supreme Court of Nevada having held that this provision in the will was in conformity with
their contract, Ida Angelot Ray is entitled to one-half of the entire estate.
[Headnotes 1, 2]
The court then disposed of the defense of estoppel and laches asserted by Barringer. As to
Carlita, the minor daughter, the court said that: [T] he records are replete with the efforts of
those representing the infant throughout the years to seek relief on her behalf; nor can the
defense of estoppel be applied to her. As to Ida Angelot Ray [the widow] estoppel was
litigated in the ante-nuptial litigation and therefore cannot be raised now. Barringer v. Ray,
72 Nev. 172, 177-181, 298 P.2d 933, 935, where the issue of estoppel as against Ida Angelot
Ray was discussed at length. That issue, so far as concerns the present appeal is res judicata.
We are in accord with the treatment by the court below of the issues raised in this appeal
and find no error.
The appellants in Barringer v. Gunderson, No. 4773, also argue that Ida Angelot Ray
received no interest in the corpus of the trust estate. However this issue is dealt with in
Gunderson, Guardian v. Barringer, et al., Appeal No. 4775, and we postpone the discussion
of that issue to our treatment of that appeal.
Appeal No. 4774
Tennys Mortensen, as administratrix of the estate of Truman Nye, deceased, and Wayne R.
Millington are the appellants in this case. Gunderson, guardian of Carlita Ray, an infant, Ida
Angelot Ray and Barringer and his privies are the respondents. Appellants appeal from the
holding of the court below: "That Tennys Mortensen, as administratrix of the Estate of
Truman Nye, deceased, is not entitled to have or receive any part of the property which is
legally or equitably part of the trust estate of Carl Ray, deceased, and is not entitled to
receive any part of the rents, issues, profits or other income thereof."
That Tennys Mortensen, as administratrix of the Estate of Truman Nye, deceased, is not
entitled to have or receive any part of the property which is legally or equitably part of the
trust estate of Carl Ray, deceased, and is not entitled to receive any part of the rents, issues,
profits or other income thereof.
The issue for determination on this appeal is whether the bequest of $100 a month to
Truman Nye ceased upon his death or whether it continued for the benefit of his estate.
Under section 1 (A) of provision seventh, one half of the net income of all the property of
the estate (but not less than $500 a month) was payable monthly to the testator's widow for
the entire term of the trust. Out of the other half of the income $100 a month is payable to the
testator's daughter Carlita Nancy Ray, and $100 a month to the testator's nephew Truman
Nye. See Barringer v. Ray, 72 Nev. 172, 176, 298 P.2d 933, in which we traced at some
length the provisions of the will and said inter alia: The testator declared the primary
purpose of the trust to be to provide for my said wife and adopted child * * *.' Alternate
provisions were made in the event of the death of the testator's wife and in the event of the
death of the testator's daughter. No alternate provision was made in the event of the death of
Truman Nye.
It is to be noted that the expressed purpose of the trust was to provide support first for the
settlor's family, which purpose the trust has failed to attain.
With regard to this type of claim, 48 Cal.Jur.2d, Trusts 127, at 769, states:
* * * But a provision for payment of trust income to the beneficiary in person shows an
intention to limit the gift to his life, and precludes payment to his estate following his death
before termination of the trust.
* * * Similarly, where the death of an income beneficiary does not terminate the trust, his
share of the income, if not otherwise provided for, goes to the trustor or his estate as property
undisposed of by the trust instrument.
See also First Nat. Bank of Chicago v. Cleveland Trust Co., 308 Ill.App. 639, 32 N.E.2d
964, where after quoting at length from Routt v. Newman, 253 Ill.
quoting at length from Routt v. Newman, 253 Ill. 185, 97 N.E. 208, the court concluded:
* * * We think it was clearly intended by the testator that monthly payments of income
should cease upon the death of a beneficiary, and that no interest in any of the net income
passed to the personal representative of Lillian P. Ludlow upon her death. The Routt case
sustains this conclusion.
See also Union National Bank of Pasadena v. Hunter, 93 Cal.App.2d 669, 209 P.2d 621. It
is true that in these cases the trust provisions more clearly indicated a gift to the named
beneficiary in person than does the trust agreement here.
Carl Ray died before Truman Nye, but at Nye's death the 20-year period of the created
trust had not yet expired. The general rule (see Annot. 112 A.L.R. 581) that in the absence of
evidence of an intention to the contrary a vested gift of income to be paid to a named
beneficiary for a definite or ascertainable period of time is not divested by the beneficiary's
death before the termination of the period prescribed for the payments but go to his estate
during the remainder of the period, is stated at page 587 of the cited annotation to be subject
to the modification that it may be limited to the life of the beneficiary by evidence of an
intention to that effect in the will or other instrument. The gift over in the case of the other
beneficiaries should they die prior to the termination of the trust, in contrast to the failure to
make a gift over in the event of Truman Nye's death sufficiently evidences the intent of the
settlor to limit the income to Nye alone and to preclude Nye's estate from claiming upon the
death of Nye before the termination of the trust.
[Headnote 3]
Nor are we convinced, as urged by this appellant, that Truman Nye's interest became
vested upon the death of Carl Ray. We think that the express terms of the trust created by the
will testifying to the main purpose of the testator to provide for his wife and child make the
bequest to Truman Nye contingent to the accomplishment of that purpose. Reference is made
to paragraph {A) {2) of Section I of the will creating the trust: "My trustees are hereby
directed that the provisions of this trust shall first be carried out as to my wife, IDA
ANGELOT RAY, [and] my daughter, CARLITA NANCY RAY, * * * and that then the
provisions as to the said TRUMAN NYE shall be put into effect.
(A) (2) of Section I of the will creating the trust: My trustees are hereby directed that the
provisions of this trust shall first be carried out as to my wife, IDA ANGELOT RAY, [and]
my daughter, CARLITA NANCY RAY, * * * and that then the provisions as to the said
TRUMAN NYE shall be put into effect. In other words, the primary purpose of the trust is to
provide for my said wife, and adopted child, * * *. (Emphasis supplied.) It is clear then
under the will that the legacy to Truman Nye was dependent and contingent upon the carrying
out of the trust benefits to Ida Angelot and Carlita, the wife and child. If those prior
provisions were not carried out, the Truman Nye legacy would not come into being.
In other words, the Truman Nye legacy was contingent. We have therefore rejected the
contention that the bequest to Nye gave him a vested interest and affirm the conclusion
reached by the trial court. The trial court was correct in holding that the administratrix of the
estate of Truman Nye was not entitled to participate.
Appeal No. 4775
On June 23, 1958, Russell Taylor, the guardian of Carlita Ray, an infant, instituted the
action involved in this particular appeal by a complaint for a declaratory judgment praying for
a declaration of rights and interests in the estate of her deceased father Carl Ray. She
specifically prayed for a Declaratory Judgment declaring the rights and interests of the
various Defendants herein in and to the trust estate created and established by the Last Will
and Testament of CARL RAY, Deceased * * *, be determined.
Certain of the defendants moved to dismiss the complaint and an Order Dismissing
Action was entered upon their motion. Russel Taylor, guardian as aforesaid, appealed. E. M.
Gunderson was substituted for Taylor on the appeal. This court denied a motion to dismiss
the appeal. Taylor v. Barringer, 75 Nev. 409, 344 P.2d 676. On the appeal on the merits this
court held that the complaint below stated a cause of action (failure to state a cause of action
being the main ground of appeal) and reversed.
reversed. Gunderson v. Barringer, 76 Nev. 133, 350 P.2d 397. There we said:
As must be apparent from the foregoing, it was the intention of the testator that all of his
estate (except for certain minor bequests) was to be distributed to the trustee or trustees
named in his will in trust for his widow and minor child who were to receive the net proceeds
therefrom in equal portions, all consistent with the covenants contained in the antenuptial
agreement. The existence of [a son,] Barringer, and the fact that he would be awarded one
third of the estate before the commencement of the trust was not contemplated by the testator
at the time he executed his will, or brought to the attention of the court when it ordered
distribution to Barringer as a pretermitted heir to one third of the estate. In other words, after
the determination of the validity of the antenuptial agreement and the legal effect thereof, was
Barringer then entitled to retain one third of the entire estate, or was he entitled as a
pretermitted heir to share only in that portion of the estate which the decedent could without
restriction dispose of by will? If the court in determining that Barringer as a pretermitted heir
was entitled to one third of the estate acted under mistake of fact, then in the absence of
laches, waiver, or other legal defense any part of the estate improperly received by him, could
be impressed with a trust for the benefit of the trustees under the will. Villalon v. Bowen, 70
Nev. 456, 273 P.2d 409. If such could be accomplished, the relative interests of the minor
child and the widow, or at least of the minor child, would be materially affected.
This court in referring to the interests of said minor child stated in the case of Ray v.
Barringer, 73 Nev. 212, 314 P.2d 378: Because of unusual developments in the probate
proceedings, the interests of the minor child quite clearly demand attention and a
determination of her rights under present circumstances should be had.'
Thereafter the trustees under the will commenced an action for a declaratory judgment to
determine the rights and interests of the various defendants in the trust estate. Id. 136.
Although neither Barringer nor his successors in interest have ever claimed any interest in
the trust estate, they do claim a one-third interest in the Professional Building. Id. 137, where
we said: If their interest in said building or any part thereof was improperly acquired through
a mistake of fact, an action to determine such matter would be proper. Villalon v. Bowen,
supra. The order dismissing the action as to defendants Barringer and his successors was
reversed, with directions to the trial court to permit the appellant to amend the complaint so
as clearly to allege that the declaration of rights sought pertains to the real property in its
entirety and not to just that part thereof held by the testamentary trustees.
Gunderson's appeal insists that the term net proceeds as used in the antenuptial
agreement between Ida Angelot Ray and Carl Ray refers only to net income and does not
include the corpus of the real property; that the right of Ida Angelot Ray is to have one half of
the income of the trust distributed to her by the trustees, subject only to her proportionate
share of the allowable costs of administration of the trust; that this conclusion should have
been included in the findings of fact in the lower court and that it was error for the court to
reject his proposed amendments to the findings accordingly.
This contention on the part of appellant grows out of the following language used by the
trustor in the antenuptial agreement: 1. That the first party shall make and keep in existence
a valid will, wherein and whereby all of his property will be bequeathed to a trustee and said
Will shall provide that the second party shall receive one-half (1/2) of the net proceeds of said
trust estate, * * *.
3. It is further agreed, that the provisions as aforesaid to second party, in accordance with
the foregoing Paragraphs, shall be so given and set over to said second party as a pecuniary
provision for her, in lieu and in bar of any and all right or claim of dower, in and to any and
all of the [property of the second party] to which * * * [she] might become entitled, * * * as
wife or widow, and in lieu of any right * * * to apply to the Court for a family allowance or
support money * * * [and] that all * * * rights [so waived] include [statutory as well as
common-law rights]."
Court for a family allowance or support money * * * [and] that all * * * rights [so waived]
include [statutory as well as common-law rights].
Appellant emphasizes the use of the words net proceeds in paragraph 1 above quoted
and the use of the words pecuniary provision in the third paragraph above quoted as
indicating the trustor's intention that the corpus of the property should not pass, but only the
income.
The trial court's opinion treated the matter as follows: The language of the ante-nuptial
agreement and as contained in the will clearly indicates to the court that the testator meant by
the word proceeds' the entire corpus including income.
The will, made some three years after the antenuptial agreement, and which we said in
Barringer v. Ray, 72 Nev. 172, 298 P.2d 933, substantially carries out the provisions of the
agreement, contains the following language: EIGHTH: After the expiration of twenty years
from date of my death, distribution of the proceeds of said Trust, including the corpus,
principal, accumulated income, rents, issues and profits, shall be made by my said Trustees to
the beneficiaries in said Trust mentioned and designated in Section I(1)(B) (d) hereof, and
this Trust shall cease and determine. The word proceeds was here clearly defined to
include the corpus of the trust as well as the income therefrom. The use of the word net in
the term net proceeds as used in the antenuptial agreement has no particular significance.
Gross proceeds could in no event be entirely subject to distribution, as they would be subject
first to costs of administration.
Appellant contends that there is no precedent authorizing the construction of an instrument
by recourse to words used in a later instrument.
[Headnotes 4-8]
Certain cardinal rules of construction of instruments are so well recognized as to require
no citation of authority. The first of these to which all others are subordinate is to ascertain
the intention of the parties. If such intention is clear from the instrument itself, it requires no
construction.
construction. Otherwise, in order to ascertain the intention of the parties the language of the
agreement should be considered in the light of the attendant and surrounding circumstances.
The court should place itself as nearly as possible in the situation of the parties in seeking the
true meaning and the correct application of the language of the contract. It is said in 1
Williston on Contracts (Rev.Ed.) 47: It is not necessary that a promise should within itself
be certain if it contains a reference to some document, transaction, or other extrinsic facts
from which the meaning may be made clear. In Rodgers v. City of New York, 222 App.Div.
564, 226 N.Y.S. 485, 489 (under facts far different but directly in point on the rule decided),
the court held that the intention of the parties as to the purpose of the agreement could be
determined by reference to additional later writings relating to the subject. This seems
reasonable as applied to the present case in which Carl Ray and Ida Angelot entered into an
antenuptial agreement in which Carl Ray agreed to make and keep in effect a will whereby,
among other things, all his property would be bequeathed to a trustee and which would
provide that Ida Angelot receive one half of the proceeds of said trust estate, and in which he
did execute such will and defined proceeds to include the corpus of the property.
[Headnote 9]
We hold that the assignment of error in the action of the trial court's consideration of the
language of the will in construing the language of the antenuptial agreement is without merit.
It has been noted that Carl Ray fixed the term of the trust as 20 years. Although we have
said that his will substantially carried out the terms of the antenuptial agreement, in this
respect it did not. The antenuptial agreement made no provision for a creation of the term
fixing the life of the trust, or that it should have any term, or that it should have a limited
term.
We thus proceed to the contention of appellant that it was error for the trial court to
accelerate the trust. The court's action in accelerating the trust was based upon the frustration
of its purpose, the support of the trustor's wife and child. In 96 C.J.S., Wills 1060, at 694
et seq., it is said:
the frustration of its purpose, the support of the trustor's wife and child. In 96 C.J.S., Wills
1060, at 694 et seq., it is said:
The failure of a testamentary trust because of invalidity or otherwise does not render
invalid other provisions of the will which are not affected by the trust. In the absence of a
manifest intention or a provision in the will to the contrary, the property included in a trust
will pass to the heir or next of kin of the testator, or to his residuary devisee or legatee, as the
case may be, where the trust is invalid; * * * where the object of the trust [family support]
becomes impossible of performance; * * *. If a trust fails, it has been held, a court has no
power except to enforce a reversion. Whether or not a trust has failed is to be determined by
the primary or dominant purpose of the testator, and a trust itself does not fail if only the
incidents of its description or execution fail.
It was made clear to the court below that the main purpose of the trust, the support of the
trustor's family, had not been met by the trust and that a termination of the trust and
distribution of the property would better serve the desire of the testator. It also appeared to the
court below that the will did provide a plan for final distribution of the property (although it
fixed the time of such distribution upon the termination of the trust at the expiration of 20
years, a provision not appearing in the antenuptial agreement). Support of the family ($500 a
month to the wife and $100 a month to the minor child, plus a distribution of excess of
income each month following monthly accountings has not been available. The $20,000 trust
fund provided for from the income of the properties has not been realized due to a lack of
funds. The income provision for the daughter existed only for a short period of time. Support
of the wife was almost entirely the result of proceeds of the Wyoming property.
[Headnote 10]
It is our opinion that the acceleration of the terms of the trust was within the judgment and
discretion of the court under the existing facts; that there was no abuse of such discretion and
that the order accelerating the termination of the trust should not be disturbed by this
court.
of such discretion and that the order accelerating the termination of the trust should not be
disturbed by this court. Wilce v. Van Anden, 248 Ill. 358, 94 N.E. 42, 46.
There remains for determination the action of the court in distributing the trust property
one half to the widow Ida Angelot Ray; one third of one half, or one sixth, to Robert
Barringer; one third of one half, or one sixth to the testator's daughter Carlita Ray, and the
balance of one third thereof shall fall into the residuum, in which Carlita will participate.
Appellant Gunderson, as guardian of Carlita, contends that she is entitled to an undivided
one-third interest in the trust property.
[Headnote 11]
As we read the written opinion and the findings of the trial court, appellant's view may be
reconciled by a proper understanding of the situation resulting from the court's decree, except
that we see no present necessity for creating a residual fund. If, as the result of the judgments
rendered by the court below as here affirmed, Ida Angelot Ray receives an undivided one
half, thus fulfilling the expressed desire of the parties to the antenuptial agreement of the
testator and in his will, and Carlita receives an undivided one third, partly resulting from the
antenuptial agreement and the will but as affected by our intestate statute and by our
pretermitted heir statute, and the privies of Robert E. Barringer receive an undivided one
sixth in accordance with the prior holdings of this court, but such distribution be made subject
to the assessment of costs, attorney fees, referees' fees and any other proper charges against
such respective interests, a full and proper result will be accomplished. Thus, with the
exception of the implied provision for the creation of a residuum or residual fund or account,
the distribution as ordered by the court below has our full approval.
(All reference herein to interests in and division of the trust property has reference
particularly to what has been referred to throughout as the Professional Building, being Lots
7, 8, and the E 1/2 of Lot 6 of Block No. 35 in Clark's Las Vegas Townsite in the City of Las
Vegas, County of Clark, State of Nevada, though it of course indicates all other property,
assets and moneys in the hands of the trustees.)
County of Clark, State of Nevada, though it of course indicates all other property, assets and
moneys in the hands of the trustees.)
In Appeal No. 4773 Barringer, et al. v. Gunderson, Guardian, et al., the judgment is
affirmed with costs to the respondents.
In Appeal No. 4774, Mortensen as Administrator of the Estate of Truman Nye, Deceased,
and Millington v. Gunderson, Guardian, et al., the judgment is affirmed with costs to
respondents.
In Appeal No. 4775, Gunderson, Guardian v. Barringer, et al., the judgment is affirmed,
with elimination of the implied creation of a residuum, which will leave the judgment
otherwise intact by distribution of one half of all the property to Ida Angelot Ray, one third
thereof to Carlita Ray, and permitting one sixth thereof to remain vested in the successors of
Robert E. Barringer but subject to their reconveyance to the trustees of the undivided
one-sixth interest in the Professional Building pursuant to the prior judgments of the court
below, affirmed by this court, and subject to their accounting for one sixth of the rents, issues
and profits of the Professional Building received by them.
Determination of the interest of Wayne R. Millington, who claims a lien against the
interest of Barringer and his privies, and the claim of Frances B. Hawkins, as executrix of the
estate of L. O. Hawkins, deceased, and Howard W. Cannon, claiming under a deed or a trust
deed from Robert E. Barringer, must be asserted against the interest of Barringer as limited to
an undivided one-sixth interest. In none of the three appeals does it appear that there has been
an adjudication of such lien or claims in the court below and they are not involved herein. In
Appeal No. 4775 each of the parties will pay his own costs.
It is evident that further accountings and proceedings must be had. This case is remanded
with directions to the court below to proceed with such accountings and such allowances of
fees as may be proper and the assessment of costs and fees against the respective interests as
may appear proper, and not contrary to the views herein expressed.
as may appear proper, and not contrary to the views herein expressed.
Thompson, J., and Bowen, D. J., concur.
____________
81 Nev. 307, 307 (1965) Hansen-Neiderhauser, Inc. v. Nev. Tax Commission
HANSEN-NEIDERHAUSER, INC., a Utah Corporation,
Appellant, v. THE NEVADA STATE TAX COMMISSION, Respondent.
No. 4867
May 24, 1965 402 P.2d 480
Appeal from the First Judicial District Court, Ormsby County, from judgment of Motion
to Dismiss; Richard L. Waters, Jr., Judge.
Action by contracting corporation to recover sales tax alleged to have been erroneously
paid on machinery and equipment. The trial court sustained a motion to dismiss. The taxpayer
appealed. The Supreme Court, Zenoff, D.J., held that letter sent by contracting corporation to
state commission which gave notice that a claim was being made was sufficient to
substantially comply with statute which required the filing of a claim, although the letter was
not couched in the language of the technical niceties of pleadings.
Reversed.
Richard C. Minor, of Reno, for Appellant.
Harvey Dickerson, Attorney General, and Gabe Hoffenberg, Chief Deputy Attorney
General, for Respondent.
1. Licenses.
Letter from contracting corporation to state commission which gave notice that a claim was being made
to recover sales tax, alleged to have been erroneously paid on machinery and equipment installed for use of
government, was sufficient to comply with statute which provided that every claim for refund of sales tax
should be in writing and should state specific grounds. NRS 372.645.
2. Licenses.
Although not couched in language of technical niceties normally set forth in complaints or petitions
before court of law, where facts constituting sales tax refund claim encompass basic dispute, substantial
compliance with claim statute is sufficient. NRS 372.645, 372.680.
3. States.
Purpose of statute requiring filing of claim as a predicate to commencement of suit against government
agency is to enable agency to investigate claim and claimant while occurrence is recent and evidence
available, to end that it may protect itself against spurious and unjust claims, and when such claim
substantially complies with legislative requirements, these ends subserved. NRS 372.645, 372.680.
4. Licenses.
Whether or not air storage system and other items that went into completed units of government missile
site were materials thus taxable, under sales tax provisions, or machine and equipment which could or
could not be removed without damage to realty and not taxable would be fact issues to be resolved by
evidence. NRCP 12(b) (5).
5. Licenses.
Government contractor's amended complaint in suit to recover sales tax, allegedly erroneously paid which
alleged that the majority of said equipment was installed for the performance of a function of the
purchaser not essential to the utilization of the land itself, adequately expressed view that items involved
were machinery and equipment not subject to sales tax within intendment of tax commission ruling, and the
complaint was accordingly sufficient to state a claim for relief.
6. Pleading.
For purposes of motion to dismiss complaint for failure to state claim upon which relief could be granted,
court must accept charge of complaint as true. NRCP 12 (b) (5).
OPINION
Appellant is a Utah corporation licensed to do business in the State of Nevada as a foreign
corporation. After performing two contracts, the first between appellant and the United States
Atomic Energy Commission, hereinafter referred to as AEC, and the second between
appellant and H. Halvorsen, Inc., a prime contractor with AEC, appellant paid sales taxes to
the State of Nevada which appellant later claimed were paid erroneously and sought
refund of the amounts paid.
Nevada which appellant later claimed were paid erroneously and sought refund of the
amounts paid. NRS 372.680.
1

The trial court sustained a motion to dismiss without leave to further amend the appellant's
amended complaint, first because it contained an allegation which did not appear specifically
in the claim (NRS 372.645), and second, that the appellant was the purchaser of the materials,
that the materials were parts of permanent improvements affixed to the realty, that the United
States Government was not the entity taxed (thus violating its immunity) and, therefore, the
appellant was by law liable for the taxes.
The first contract between appellant and AEC required appellant to install an air storage
system in one of the projects at the Nevada Test Site. In the second agreement appellant
agreed to furnish all labor, material and equipment, required to do all plumbing, heating and
ventilating, air-conditioning, process-piping, sewerage and sewerage systems, installation of
applicable government furnished equipment and testing of air piping complete in accordance
with plans and specifications. * * *
After paying the sales tax, appellant seeking to comply with NRS 372.645 wrote the
Nevada State Tax Commission for a refund stating that the taxes had been paid on the basis
of an erroneous interpretation of Tax Commission Ruling 52 and that the sales tax had been
paid on certain items of machinery, equipment and fixtures that had been sold for resale.
The Tax Commission rejected the claim and appellant brought suit, setting forth
compliance with statutory procedural requirements and further alleging the furnishing
and installing of items of personalty in the performance of the two contracts.
____________________

1
NRS 372.690 reads: Action for refund: Time to sue; venue of action; waiver.
1. Within 90 days after the mailing of the notice of the tax commission's action upon a claim filed pursuant
to this chapter, the claimant may bring an action against the tax commission on the grounds set forth in the claim
in a court of competent jurisdiction in Ormsby County for the recovery of the whole or any part of the amount
with respect to which the claim has been disallowed.
2. Failure to bring action within the time specified constitutes a waiver of any demand against the state on
account of alleged overpayments.
brought suit, setting forth compliance with statutory procedural requirements and further
alleging the furnishing and installing of items of personalty in the performance of the two
contracts. It adds, which respondent contends is not part of the claim for refund, that the
majority of said equipment was installed for the performance of a function of the purchaser
not essential to the utilization of the land itself.
[Headnote 1]
We do not agree that appellant's claim for refund did not meet the requirements of NRS
372.645. That section provides, Every claim (for refund) shall be in writing and shall state
the specific grounds upon which the claim is founded.
[Headnote 2]
Although not couched in the language of the technical niceties normally set forth in
complaints or petitions before a court of law, where the facts constituting the claim
encompass the same basic dispute, substantial compliance with the statute requiring the filing
of a claim is sufficient.
2
Cf. City of Reno v. Fields, 69 Nev.
____________________

2
Nevada State Commission
Carson City, Nevada
Gentlemen:
Please be advised that we are holders of valid Nevada permit No. [illegible].
A claim is herewith entered by this letter for the refund of sales tax paid in error subsequent to July 1, 1959 on
the following grounds.
1. Items of machinery and equipment were installed by this tax payer for the use of the United States
Government at various locations in the State of Nevada, Use and Sales tax being paid due to an erroneous
interpretation of Rule 52 of the State Tax Commission.
2. A refund of Sales Tax is requested on certain items of machinery, equipment and fixtures upon which
tax was paid, the same items having been sold for resale subsequent to July 1, 1959.
Will you please advise any procedure desirable to your office which we may follow in obtaining a refund of
taxes paid by us in error.
Yours very truly,
HANSON-NEIDERHAUSER, INC.
George Neiderhauser (Signed)
George Neiderhauser
GN/nn
300, 250 P.2d 140 (involving a claim against a municipality arising out of tort).
[Headnote 3]
The purpose of the statute requiring the filing of a claim as a predicate to the
commencement of suit against a government agency is to enable the agency to investigate 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. Thus, when the claim
substantially complies with the legislative requirements, these ends are subserved. See Frasier
v. Cowlitz County, 67 Wash. 312, 121 P. 459 (1912).
[Headnote 4]
Appellant further contends that Ruling 52 of the Nevada Tax Commission makes certain
specific items constituting machinery and equipment exempt from sales tax.
3
Respondent
argues that the items are materials and subject to the taxes. Whether or not the air storage
system and the other items that went into the completed units are materials, thus taxable, or
machine and equipment which can or cannot be removed without damage to the realty are
fact issues to be resolved by evidence.
____________________

3
Tax Commission Ruling 52 provides in part:
Tax does not apply to sales of machinery and equipment to contractors or subcontractors. As used herein, the
term Machinery and Equipment' means property to which each of the following conditions apply:
1. It is not used by the contractor in making the improvements (as distinguished from supplies and tools,
such as steam shovels, cranes, trucks, and hand or power tools, actually used to perform construction work).
2. It is either not attached to the realty or, if attached, is readily removable as a unit (as distinguished from
fixtures, see below).
3. It is installed for the purpose of performing a manufacturing operation or some other function essential to
the structure itself.
4. Title to the property passes to the United States before the contractor makes any use of it.
Examples of machinery and equipment are: Portable machines, equipment and tools; furniture; vehicles; lathes,
drills, presses, cranes, and other machines and apparatus which may be fastened to the realty, but which can be
removed without damage to the structure or without substantially impairing its use.
[Headnotes 5, 6]
As before noted, the amended complaint alleged that the majority of said equipment was
installed for the performance of a function of the purchaser not essential to the utilization of
the land itself. Though not artfully stated, we take the quoted language to express the
plaintiff's view that the items involved were machinery and equipment and not therefore
subject to tax within the intendment of Tax Commission Ruling 52. If true, a claim for relief
was stated. Of course we must, for the purposes of a Rule 12(b) (5) motion, accept the charge
of the complaint as true. Professional & Business Men's Life Ins. Co. v. Bankers Life Co.,
D.C. Mont. (1958), 163 F.Supp. 274.
Reversed and remanded for further proceedings.
____________
81 Nev. 312, 312 (1965) Smith v. Garside
GLADYS SMITH, Appellant, v. SHERWIN GARSIDE and
RAYMOND GERMAIN, dba BONANZA PRINTERS, Respondents.
No. 4750
May 26, 1965 402 P.2d 246
Marshall, Judge.
Action wherein defendant moved to dismiss for want of prosecution. The lower court
granted the motion, and plaintiff appealed. The Supreme Court, Thompson, J., held that
failure of plaintiff to bring case to trial within three years after remittitur had been filed by
clerk of trial court necessitated dismissal for want of prosecution although trial date prior to
expiration of the three-year period had been vacated because of settlement understanding
which never was consummated and case had been subsequently assigned alternate trial date
beyond the three-year period, in view of failure of plaintiff to make trial court aware of the
dismissal problem.
Judgment affirmed.
Harry E. Claiborne, of Las Vegas, for Appellant.
Denton, Monsey & Winne, of Las Vegas, for Respondents.
1. Dismissal and Nonsuit.
Failure of plaintiff to bring case to trial within three years after remittitur had been filed by clerk of trial
court necessitated dismissal for want of prosecution although trial date prior to expiration of the three-year
period had been vacated because of settlement understanding which never was consummated and case had
been subsequently assigned alternate trial date beyond the three-year period, in view of failure of plaintiff
to make trial court aware of the dismissal problem. NRCP 41(e).
Language of rule providing that action must be dismissed on motion of defendant after due notice or of
court's own motion unless brought to trial within three years from date of filing of remittitur of clerk is
mandatory. NRCP 41(e).
OPINION
The plaintiff did not bring her case to trial within three years after remittitur was filed by
the clerk of the trial court. Therefore the lower court granted the defendants' motion to
dismiss for want of prosecution, made pursuant to that part of NRCP 41 (e) which provides:
When in an action after judgment, an appeal has been taken and judgment reversed with
cause remanded for a new trial * * * the action must be dismissed by the trial court on motion
of defendant after due notice to plaintiff, or of its own motion, unless brought to trial within
three years from the date upon which remittitur is filed by the clerk of the trial court. This
appeal followed. We affirm.
The chronology is footnoted.
1
The plaintiff excuses her failure to prosecute on two
grounds.
____________________

1
Oct. 25, 1960remittitur filed in Smith v. Garside, 76 Nev. 377, 355 P.2d 849.
Apr. 21, 1961plaintiff filed note for trial docketcase set for Oct. 9, 1961vacated on agreement of counsel.
Nov. 8, 1961plaintiff filed note for trial docket. Case set for March 28, 1962vacated on agreement of
counsel, and record notes that it was settled.
March 18, 1963plaintiff filed note for trial docketcase set for
Nov. 25, 1963as an alternate to another civil case. The record notes that an earlier setting was not given
because of a backlog of criminal cases entitled by statute to preference.
her failure to prosecute on two grounds. First, she insists that a settlement was reached, and
directs our attention to the record showing that the trial date of March 28, 1962, was vacated
because of the settlement understanding. Second, she argues that, when it later became
apparent that the agreed upon settlement would not be effectuated, criminal cases had taken
the court's trial calendar, making it impossible to try her cause within time. We cannot honor
either contention in view of the record before us.
[Headnotes 1, 2]
Arguendo, if a settlement was reached, counsel was obliged to finally consummate it and
obtain a dismissal on that ground. Cf. Coleman v. Thompson, 73 Nev. 345, 319 P.2d 541. If
the March 28, 1962, trial date was vacated because of the supposed settlement of the case,
still by March 18, 1963, it was apparent to the plaintiff that settlement was not going to be
made, for on that date she again noted the case for the trial docket. At that time, a little more
than seven months remained before she would be precluded by NRCP 41(e). Upon learning
that her case was assigned an alternate trial date beyond the three year period, she should have
made the court aware of her problem. The record does not show that this was done. We are
confident that, had the court been so advised, it would have accommodated her by at least
commencing trial. The language of the rule is mandatory. Harris v. Harris, 65 Nev. 342, 349,
196 P.2d 402, 405 (dictum). Cf. Thran v. District Court, 79 Nev. 176, 380 P.2d 297; Astorga
v. Ishimatsu, 77 Nev. 30, 359 P.2d 83 (both dealing with the mandatory 5 year dismissal
provision of Rule 41(e)). The lower court was forced to grant the defendants' motion to
dismiss. It had no discretion in the matter, nor do we have any on appeal from the dismissal
order.
Affirmed.
Badt, J., and Gabrielli, D. J., concur.
____________
81 Nev. 315, 315 (1965) Universal Underwriters Ins. Co. v. Snyder
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a Corporation, Appellant, v.
JEAN SNYDER, DAMON ITZA, DOROTHEA ITZA, KAREN ITZA, and FRANCES
ITZA, Respondents.
No. 4851
May 28, 1965 402 P.2d 483
Appeal from judgment of the Sixth Judicial District Court, Merwyn H. Brown, Judge.
Action by insurance company seeking to have automobile policy declared void as to the
assured and all others asserting an interest therein as third-party beneficiaries. The lower
court denied the relief, and insurance company appealed. The Supreme Court, Thompson, J.,
held that policy was not voided by reason of fact that insured made false statements on his
application for insurance where neither application nor policy made reference to the other,
application was not attached to policy or endorsed thereon, and there was nothing to express
an intention that the application be considered a part of insurance contract.
Affirmed.
Pike & McLaughlin and Robert N. McGehee, of Reno, for Appellant.
Vargas, Dillon, Bartlett & Dixon and Albert F. Pagni, of Reno, for Respondents.
1. Insurance.
Automobile policy was not voided by reason of fact that insured made false statement on application for
insurance where neither application nor policy made reference to the other, application was not attached to
policy or endorsed thereon, and there was nothing to express an intention that the application be considered
a part of insurance contract. NRS 692.040.
2. Insurance.
Mere false representations in an application for insurance cannot be relied upon when insurance contract,
by its express terms, provides that policy itself embodies all agreements between
parties.
terms, provides that policy itself embodies all agreements between parties.
OPINION
The case below was under the Uniform Declaratory Judgments Act. On December 4, 1958,
Universal Underwriters Insurance Company issued a policy of automobile insurance to Jean
Snyder (B.I. $10,000/$20,000; P.D. $5,000; Med. $1,000; Collision, $50 deductible) for a
Pontiac car which Snyder purchased on that date from Richardson-Lovelock, Inc., Reno,
Nevada. Twenty days later Snyder, while driving that car, collided head-on with a car being
driven by Damon Itza in which other members of the Itza family were riding. The Itzas
sustained bodily injuries. As a result of the accident, Snyder was sentenced to the Nevada
State Prison. By letter dated March 31, 1959, the insurance company notified Snyder that it
denied coverage under the policy for the violation of the declarations contained within that
policy, stated that the policy was null and void and offered to return the premium paid
therefor. That letter was precipitated when the insurance company learned that Snyder had
been convicted of reckless driving by the Police Court of the City of Tacoma, Washington, on
June 27, 1956, contrary to information given by Snyder on December 4, 1958, when
application was made for insurance coverage.
1
Subsequently the insurance company filed
this action for declaratory relief, seeking to have the automobile insurance policy declared
void as to the assured and all others asserting an interest therein as third party beneficiaries.
Its cause was bottomed on the proposition that the policy was void ab initio because the
assured fraudulently misrepresented a material fact in applying for coverage. If successful, it
follows that the Itzas, as injured third parties, could not look to that policy to satisfy any
judgment which they might secure against Snyder, for their rights in this regard depend
upon the existence of a valid insurance policy {Holthe v. Iskowitz, 31 Wash.2d 533, 197
P.2d 999, 1001; Shapiro v. Republic Indemnity Co. of America, 52 Cal.2d 437, 341 P.2d
2S9, 290), i.e.,
____________________

1
When Snyder purchased the car and the insurance policy, he answered and signed a printed form entitled
Underwriting Information for Automobile Insurance. One of the questions was, Ever been arrested for
drunken or careless driving. He answered, No.
against Snyder, for their rights in this regard depend upon the existence of a valid insurance
policy (Holthe v. Iskowitz, 31 Wash.2d 533, 197 P.2d 999, 1001; Shapiro v. Republic
Indemnity Co. of America, 52 Cal.2d 437, 341 P.2d 289, 290), i.e., the rights of the
beneficiaries against the insurer may be negated by any defense available against the assured.
The lower court denied relief to the insurance company, and this appeal followed. We affirm.
[Headnote 1]
Many errors are assigned which we need not consider, for in our view the so-called
application for insurance is not a part of this insurance contract and may not, under the
circumstances here disclosed, be invoked to provide a defense to the enforcement of rights
under the policy.
2
The purported application for insurance does not specify that the
statements and answers therein are made a basis and condition of the insurance policy to be
issued. Cf. Poe v. La Metropolitana Co., 76 Nev. 306, 353 P.2d 454, where
misrepresentations were made in a written application for a fire policy, which application
expressly provided that the statements therein were true and were made the basis and
condition of the policy. See also Allstate Insurance Co. v. Miller, 96 Cal.App.2d 778, 216
P.2d 565; Allstate Insurance Co. v. Golden, 9 Cal. Rptr. 754. Nor does the insurance policy
make the application a part of the insurance contract. Cf. Smith v. North American Accident
Insurance Company, 46 Nev. 30, 205 P. 801, where a health and accident policy contained the
following statement, In consideration of the agreements and statements contained in the
application, a copy of which is endorsed hereon and made a part of this contract; * * *. So in
the case before us neither document (the application for insurance or the insurance policy)
made reference to the other, nor was the application attached to the policy or endorsed
thereon.
____________________

2
For the purposes of this opinion we assume that the underwriting information form which Snyder filled out
and signed, was an application for insurance. However, without deciding the point, we express doubt that it
qualifies as an application. We note that it fails to disclose the name of the insurer, request the issuance of a
policy, or describe the nature of the risk to be insured against.
Thus, there is nothing to express an intention that the application be considered a part of the
insurance contract. In these circumstances we are indeed loath to make all the detailed
statements of the application conditions upon which the insurance may be forfeited.
Our conclusion in this regard finds further support in the language of the insurance
contract itself. Paragraph 16, entitled Declarations, reads, By acceptance of this policy, the
insured named in Item 1 of the declarations agrees that the statements in the declarations are
his agreements and representations, that this policy is issued in reliance upon the truth of such
representations and that this policy embodies all agreements existing between himself and the
company or any of its agents relating to this insurance.
[Headnote 2]
The declarations merely set forth the name of the insured, his address, occupation,
description of the car, its price, encumbrances thereon, identity of the mortgagee, and other
similar information. No reference is made to the application. Indeed, the last part of the
quoted provision precludes reference to the application for insurance. The identical policy
provision was considered by the Sixth Circuit Court of Appeals in Harris v. State Farm
Mutual, 232 F.2d 532. That court ruled flatly that mere false representations in an application
for insurance cannot be relied upon when the insurance contract, by its express terms,
provides that the policy itself embodies all the agreements between the parties. The case of
State Farm Mutual v. West, 149 F.Supp. 289 (D.C.Md.), which the appellant relies upon,
appears to be contra, but we choose not to follow it. In our view the expression of the court in
Harris v. State Farm Mutual, supra, is incontrovertible as a matter of contract law.
3
The
judgment below is affirmed.

____________________

3
It is of interest to note that, in the accident and health insurance area, the Nevada legislature has expressly
provided that the insured shall not be bound by any statement made in an application for a policy unless a copy
of such application is attached to or endorsed on the policy when issued as a part thereof. NRS 692.040.
Of related interest is NRS 485.3091(6) (a) of the Safety Responsibility Act. It provides: The liability of the
insurance carrier with
The judgment below is affirmed.
Badt, J., and Compton, D. J., concur.
____________________
respect to the insurance required by this chapter shall become absolute whenever injury or damage covered by
such motor vehicle liability policy occurs; the policy may not be cancelled or annulled as to such liability by any
agreement between the insurance carrier and the insured after the occurrence of injury or damage; no statement
made by the insured or on his behalf and no violation of the policy shall defeat or void the policy. See also NRS
485.3091(6)(d). The present case is not controlled by that provision, because the policy of insurance was not
issued pursuant to the requirements of NRS Ch. 485. See: Safeco Insurance Co. of America v. Gonacha, 142
Colo. 170, 350 P.2d 189; Tri-State Insurance Co. v. Ford, 120 F.Supp. 118.
____________
81 Nev. 319, 319 (1965) Evans v. Dorman
EDITH M. EVANS, Also Known as EDITH MARY EVANS,
Appellant, v. PAUL E. DORMAN, Respondent.
No. 4873
June 2, 1965 402 P.2d 652
Craven, Judge.
Action for real estate broker's commission. The lower court rendered a judgment for the
broker, and the vendor appealed. The Supreme Court, Thompson, J., held that promise to pay
$22,500 commission in deposit receipt which was signed by vendor and which provided that
sale price should be $450,000 was legally enforceable although exclusive listing agreement
had provided for $450,000 sales price net to vendor and for purchase by ranch purchaser of
all vendor's cattle at market for cash.
Judgment affirmed.
Vargas, Dillon, Bartlett & Dixon and Robert W. Marshall, of Reno, for Appellant.
Guild, Guild & Cunningham, and David W. Hagen, of Reno, for Respondent.
1. Brokers.
That changes were made in terms of sale originally specified in exclusive listing agreement did not
preclude liability for broker's commission if new terms were accepted by vendor and if purchaser was
brought to vendor by broker.
2. Brokers.
Promise to pay $22,500 commission in deposit receipt which was signed by vendor and which provided
that sale price should be $450,000 was enforceable although exclusive listing agreement had provided for
$450,000 sales price net to vendor and for purchase by ranch purchaser of all vendor's cattle at market for
cash.
3. Brokers.
Vendor who refused to permit expert to appraise, classify, and count cattle when he arrived at ranch after
broker, with consent of purchaser and vendor's attorney, had arranged to have expert go there and do so
and who refused to take appropriate steps to have determination of market value of cattle made would not
be permitted to claim that broker had failed to procure ready, willing, and able purchaser for the ranch and
cattle.
4. Brokers.
If deposit receipt provision stating that vendor should have right to remain on property until specified
time to care for livestock until payment by purchaser was to be treated as contemplating separate sales of
cattle and ranch, contract was severable, and broker was entitled to commission upon producing purchaser
who would buy on terms agreeable to vendor.
5. Brokers.
Dispute occurring between vendor and purchaser after broker had procured purchaser who was ready,
willing, and able to buy and who was accepted by vendor could not serve to diminish or destroy validity of
broker's claim to commission.
6. Trial.
Statement in trial judge's written opinion that defendant was arrogant, haughty, and irrepressible, that she
had little ability to see the truth when it did not suit her purpose, and that she would say anything that suited
her whim of the moment or would accomplish her objectives did not demonstrate that defendant's loss of
the case was due to bias and prejudice of the judge.
OPINION
The appeal is from a judgment ordering Edith Evans to pay a real estate broker's
commission of $22,500 to Paul Dorman. Dorman had produced a purchaser for the Evans
ranch as evidenced by a deposit receipt signed by Edith Evans, as seller, and Lindero
Investment Co., Inc., as buyer, which document contained an express promise by Evans to
pay Dorman, her broker, a commission of $22,500.1 The suit below proceeded mainly
upon that promise, though an alternative claim for quantum meruit relief was also
asserted.
promise by Evans to pay Dorman, her broker, a commission of $22,500.
1
The suit below
proceeded mainly upon that promise, though an alternative claim for quantum meruit relief
was also asserted. We do not deal with the alternative claim, for on this record it is clear that
the express promise to pay the commission is legally enforcible. We affirm.
1. The main appellate contention is that a broker's commission was not earned because the
terms of the ranch sale, as disclosed by the deposit receipt, are different from those specified
in the exclusive listing agreement by which Evans authorized Dorman to act as her broker.
When the two documents are compared, differences in the terms of sale are apparent. The
exclusive listing agreement provided for a sales price for the ranch, range, water rights and
equipment of $450,000 net to the seller, and further provided that the buyer would purchase
all your cattle at market for cash. The deposit receipt and agreement of sale, later signed by
the seller and buyer, specified the sales price of the ranch, range, water rights and equipment,
to be $450,000. However, this was not net to the seller, for she also promised to pay
therefrom a $22,500 broker's commission to Dorman. Furthermore, the terms of the deposit
receipt excluded from the sale the seller's present home and residence, * * * together with
that area consisting of the old home in Section 12 and adjacent to highway 395. Finally, the
deposit receipt did not specifically require the buyer to purchase the cattle at market price or
at any price. It did, however, give the seller permission to remain on the property until June,
1962, to care for the livestock until payment is made therefore by the Buyer. For reasons to
be mentioned later, we find it unnecessary to decide whether the quoted provision as to
the livestock contemplated the sale of the ranch and livestock as a package, or envisioned
separate transactions, for in either event it is our view that the broker earned his
commission.
____________________

1
The promise reads: The undersigned accepts the offer on the reverse side hereof and agrees to sell the
property described therein on the terms and conditions therein set forth. The undersigned agrees to pay Broker
therein named and employed by the undersigned to sell property, a commission in the sum of $22,500.00 or
one-half of the amounts paid by Buyer and retained by Seller as liquidated damages, provided such one-half
shall not exceed the full amount of said commission. The undersigned acknowledges receipt of a copy hereof.
Dated November 27th, 1961. Edith M. Evans, Seller.
find it unnecessary to decide whether the quoted provision as to the livestock contemplated
the sale of the ranch and livestock as a package, or envisioned separate transactions, for in
either event it is our view that the broker earned his commission.
[Headnotes 1, 2]
The fact that changes were made in the terms of sale originally specified in the exclusive
listing agreement does not preclude liability for a broker's commission, if the new terms of
sale are accepted by the seller and the buyer was brought to the seller by her agent. In Engel v.
Wilcox, 75 Nev. 323, 340 P.2d 93, this court approved the following quotation: Generally
speaking, a real estate broker has earned his commission when he has brought to the vendor a
purchaser who is ready, willing and able to buy the property upon the terms on which the
agent is authorized to sell, or when a written contract upon any terms acceptable to the seller
has been entered into with a purchaser originally brought to the vendor by the agent. Here
Dorman produced the buyer and there can be no doubt but that the new terms of sale as set
forth in the deposit receipt and agreement were acceptable to the seller, Edith Evans. She
signed the document manifesting her acceptance, after a full discussion with her attorney.
Indeed, as the result of her consultation with counsel, she further modified the proposal by
adding the proviso that there be reserved from the sale her homesite. The buyer then signed,
and a deal was made. Pursuant to that agreement the buyer deposited $130,000 in escrow
with Pioneer Title Insurance Company. When that agreement was made the broker earned his
commission. Engel v. Wilcox, supra; Lukey v. Smith, 77 Nev. 402, 365 P.2d 487.
2. The agreement to sell and buy was not carried out. Evans, the seller, refused to honor
her promises to the buyer and to her broker. She seeks to justify her refusal to perform on the
flat proposition that the ranch was not to be sold without the cattle and the parties never
reached an understanding on the price to be paid for the cattle. As before noted, the exclusive
listing agreement provided that the cattle were to be sold at market."
market. The deposit receipt and agreement later signed modified the exclusive listing
agreement in the respects indicated and, as to the cattle, stated only that Edith M. Evans
shall have the right to remain on the property until June, 1962, to care for the livestock until
payment is made therefore by the Buyer. This proviso was not a part of the paragraph of the
agreement describing the property to be sold, purchase price and terms of payment, but was
instead contained in that part of the agreement relating to the time when possession of the
ranch was to be delivered to the buyer. Nor does the proviso specify a price for the cattle.
[Headnotes 3, 4]
The lower court thought it permissible to treat the proviso in either of two ways. If it was
meant to require a simultaneous sale of the cattle to the buyer of the ranch, then the price to
be paid for the cattle was the market price originally specified in the exclusive listing
agreement and not later modified. If so treated, the record shows that the broker, with the
consent of the buyer and the seller's attorney, arranged to have an expert go to the ranch and
appraise, classify and count the cattle, but that the seller refused such expert permission to
perform his task when he arrived there for that purpose. Thus, the seller prevented the buyer
from ascertaining the market value of the cattle, nor would she take appropriate steps to have
that determination made. She may not now claim that the broker failed to procure a ready,
willing and able buyer for her ranch and cattle when his performance as to the cattle was
prevented by her conduct. 12 Am.Jur.2d, Brokers 199, pp. 940-941; cf. Cladianos v.
Friedhoff, 69 Nev. 41, 240 P.2d 208.
On the other hand, if the proviso is viewed as contemplating a separate sale of the cattle
(or to put it differentlytwo sales, one for the ranch on the terms specified, and the other for
the cattle at market,) the contract may properly be treated as severable in character, in
which case the broker earned his commission for the agreed sale of the ranch. Cf. Bariel v.
Tuinstra, 45 Wash.2d 513, 276 P.2d 569. We hold that the judgment below is sustainable on
either basis.
[Headnote 5]
3. Next we are urged to set aside the judgment below because, in California litigation, the
buyer failed in its quest to obtain specific performance from the seller. That case is now on
appeal. Whatever may have motivated the California trial court to deny specific performance
to the buyer, it does not necessarily follow therefrom that the broker must fail here in his suit
for a commission. In Lukey v. Smith, 77 Nev. 402, 365 P.2d 487, this court wrote: The
relations of the buyer and seller might have been changed in many waysby the refusal of
the seller to sell or the refusal of the buyer to buy. Litigation might have ensued, whether for
damages for a breach or for specific performance. Or the parties might by a new contract have
canceled the existing one. None of these things would affect the liability of appellants for the
broker's commission. The execution of the deposit receipt and agreement of sale by the
seller is conclusive proof that she was satisfied with the buyer's qualifications and ability to
perform. The broker procured a buyer who was ready, willing and able to buy and who was
accepted by the seller. His commission was earned. Deeble v. Stearns, 82 Cal.App.2d 296,
186 P.2d 173. The subsequent dispute between the buyer and seller cannot, in these
circumstances, serve to diminish or destroy the validity of the broker's claim to a commission.
Austin v. Richards, 146 Cal.App.2d 436, 304 P.2d 132; Curtis v. Mortensen, 1 Utah 2d 354,
267 P.2d 237; Taylor v. Russell, 194 Cal.App.2d 816, 15 Cal.Rptr. 357. The appellant's main
authority, Lawrence Block Co. v. Palston, 123 Cal.App.2d 300, 266 P.2d 856, is inapposite.
There the buyer's promise to perform was illusory. In any event, the language of the District
Court of Appeals in that case is criticized and disapproved by the California Supreme Court
in Mattei v. Hopper, 51 Cal. 2d 119, 330 P.2d 625.
[Headnote 6]
4. Finally the appellant charges that her failure to win the case was due to the bias and
prejudice of the trial judge, and points to the following statement (among others) in his
written opinion as an example: "Miss Evans is an arrogant, haughty, irrepressible person.
Miss Evans is an arrogant, haughty, irrepressible person. She has little ability to see the truth
when it doesn't suit her purpose and will say anything that suits her whim of the moment or to
accomplish her objectives. She is a matriarch who demands that she rule and none, in her
opinion, should dare encroach upon what she considers as her prerogatives. Of course the
charge was first made after the case was lost. Until the moment of decision the appellant and
her counsel were apparently satisfied with the manner in which the case had been handled by
the judge. The pre-trial proceedings, transcript of the trial, and twenty-page written opinion
reflect the great care and concern of the court for the rights of the litigants and a thorough
analysis of the evidence and the law. The quoted statement is simply the candid observation
of one charged with the duty of decision and is to be encouraged, not denounced. Our task on
review is less difficult when given an explanation by the trier of fact. We find the charge of
appellant wholly unwarranted.
We have considered other assigned errors and deem them to be without merit.
Affirmed.
____________
81 Nev. 325, 325 (1965) Bartsas Realty, Inc. v. Nash
BARTSAS REALTY, INC., a Nevada Corporation,
Appellant, v. FRANK NASH and MANUEL NASH, Respondents.
No. 4877
June 3, 1965 402 P.2d 650
Marshall, Judge.
A licensed real estate broker's complaint against a realty owner was dismissed by the lower
court and the broker appealed. The Supreme Court, Thompson, J., held that where the broker
was induced to reduce his earned realty sale commission by $5,000 by a promise that he
would be allowed to represent the owner on sale of adjacent property and the broker put
the owner in touch with prospective buyers, the owner could not then revoke and sell
direct to buyers with impunity; direct sale indicated bad faith and the broker could
recover promised compensation under a complaint count based on fraud.
that he would be allowed to represent the owner on sale of adjacent property and the broker
put the owner in touch with prospective buyers, the owner could not then revoke and sell
direct to buyers with impunity; direct sale indicated bad faith and the broker could recover
promised compensation under a complaint count based on fraud.
Paul L. Larsen, of Las Vegas, for Appellant.
George E. Franklin, Jr., of Las Vegas, for Respondents.
1. Torts.
Breach of one's own contract with plaintiff is not tort.
2. Brokers.
In absence of exclusive agency, principal may negotiate in his own behalf or through other agents, for
sale of principal's realty.
3. Brokers.
Allegation that realty owner promised, in return for broker's reduction of commission on sale of motel,
that owner would have broker represent him on sale of adjacent property and that broker then put owner in
touch with prospective buyer to whom owner sold directly did not, without more, state contract claim on
which relief could be granted. NRCP 12(b)(5).
4. Brokers; Fraud.
Where broker was induced to reduce earned realty sale commission by $5,000 by promise he would be
allowed to represent owner on sale of adjacent property and broker put owner in touch with prospective
buyers, owner could not then revoke and sell direct to buyers with impunity; direct sale indicated bad faith
and broker could recover promised compensation under complaint count based on fraud.
OPINION
The appeal is from an order dismissing the plaintiff's second amended complaint for
failure to state a claim upon which relief may be granted. Though imperfectly drawn, we
think that enough is alleged to defeat a Rule 12 (b) (5) motion and, therefore, reverse.
The second amended complaint sets forth three separate counts. Each rests upon an
underlying oral agreement between the plaintiff, a licensed real estate broker, and the
defendants. It is averred that the plaintiff agreed to reduce, by $5,000, its earned commission
due from defendants for consummating the sale of the Glen Vegas Motel, in return for the
defendants' promise that the plaintiff would represent them in negotiating their purchase of
adjacent property. Pursuant to such oral agreement, the owner of the adjacent property was
contacted by plaintiff, advised of the defendants' desire to buy, and asked to submit terms. A
sale was thereafter made by such owner dealing directly with the defendants. As the
defendants did not honor their promise, the plaintiff seeks to recover either the $5,000 which
it had earned on the prior sale and was induced to relinquish, or a broker's commission on the
second sale.
[Headnotes 1-3]
The three theories for relief are tortious interference by the defendants with the oral
agreement of the plaintiff and defendants, breach of the oral agreement, and fraud. Of course
the first theory, that of tortious interference with the oral agreement is wholly unsound, for
the defendants' breach of their own contract with the plaintiff is not a tort. Prosser, Torts, 2d
Ed., Ch. 23, 106, p. 728; Allison v. American Airlines, 112 F.Supp. 37 (Okla.); Canister
Co. v. National Can Corp.; 96 F.Supp. 273 (Del.). Accordingly, that theory for relief was
properly dismissed. Nor does the count based on an alleged breach of the oral agreement,
without more, state a claim (the so-called breach being the direct dealing between the
defendants, and the owner of the adjacent land after they had been put in touch with each
other by the plaintiff), because in the absence of an exclusive agency a principal may
negotiate in his own behalf or through other agents. Restatement, Agency, 2d Ed., 449;
Schwob v. International Water Corp., 136 F.Supp. 310 (Del.).
The third claim for relief, however, is another matter, for it involves the element of bad
faith and seems to us to fall within the intendment of the rule announced in the
Restatement, Agency, 2d Ed., 454: "An agent to whom the principal has made a
revocable offer of compensation if he accomplishes a specified result is entitled to the
promised amount if the principal, in order to avoid payment of it, revokes the offer and
thereafter the result is accomplished as the result of the agent's prior efforts."
us to fall within the intendment of the rule announced in the Restatement, Agency, 2d Ed.,
454: An agent to whom the principal has made a revocable offer of compensation if he
accomplishes a specified result is entitled to the promised amount if the principal, in order to
avoid payment of it, revokes the offer and thereafter the result is accomplished as the result of
the agent's prior efforts. Comment (a) to the quoted rule reads: If the agent has given his
principal cause for terminating the contract of employment, the principal does not commit a
breach of contract although he terminates it with a bad motive, or even though he gives an
invalid excuse or misstates his reason. See 409. It is different, however, where the agency is
at the will of the principal, where there is no breach of contract on the part of the agent and no
affirmative reason for the termination of the offer. If the principal is to pay compensation in
proportion to the work done, there is no need for invoking the rule stated in this Section. If,
however, the agreement is such that the principal can deprive the agent of all compensation
by properly terminating the employment and if the agent is on the verge of success and, but
for the aleatory element in the transaction, he would be entitled to practically full
compensation for his services, the rule stated in this Section is necessary in order to prevent
sharp dealing. Under such circumstances, if the principal revokes his offer to the agent,
intending thereby to take the benefits of the agent's services without paying for them, he acts
in bad faith; and if he thus acts, specific reparation is afforded the agent by disregarding the
revocation and determining his right to the promised compensation as though no revocation
had been made.
[Headnote 4]
Here, if the averments of the complaint are true (and we must assume so in the posture of
this case), the agent (plaintiff) had been induced to reduce by $5,000 a commission which had
already been earned on a prior sale, upon the principals' (defendants') representation that the
agent could represent them in negotiating the purchase of adjacent property. In these
circumstances the principal may not revoke his offer to the agent, take the benefit of the
agent's preliminary services, and make his own deal with the adjoining property owner,
for such conduct bears the badge of bad faith.
the principal may not revoke his offer to the agent, take the benefit of the agent's preliminary
services, and make his own deal with the adjoining property owner, for such conduct bears
the badge of bad faith. When this happens, the agent may recover the promised compensation
as though no revocation had occurred. Accordingly, we hold that the count based on fraud
states a claim for relief; and remand for further proceedings on that count alone.
____________
81 Nev. 329, 329 (1965) LeMon v. Landers
CHARLES FREMONT LeMON, Appellant, v.
HAZEL M. LANDERS, Respondent.
No. 4874
June 4, 1965 462 P.2d 648
Appeal from judgment and decree of the First Judicial District Court, Lyon County;
Richard L. Waters, Jr., Judge.
Action to quiet title to real property to which ownership was claimed by principal but to
which the agent held an unrecorded deed. The trial court entered judgment in favor of the
agent, and the principal appealed. The Supreme Court, Zenoff, D.J., held that action of agent,
who had power of attorney, in transferring principal's property by deed to person other than
that intended by principal, which person, in turn, immediately deeded it back to agent in her
name, was a breach of fiduciary duty and agent's unrecorded deed could not stand against
principal's title.
Reversed.
Gordon W. Rice and Leo P. Bergin, of Reno, for Appellant.
Springer & Newton, of Reno, for Respondent.
1. Principal and Agent.
An agent owes to principal the highest duty of fidelity, loyalty and honesty in performance of duties on
behalf of principal, and an agent will not be permitted to pervert his authority to his own personal gain in
severe hostility to the interests of his principal.
An agent may not purchase the property of his principal without principal's consent, nor may an agent
purchase property of principal through instrumentality of a third person.
Supreme Court will not disturb findings of trial court where evidence is conflicting, even where facts
create grave suspicions and doubts.
Action of agent, who had power of attorney, in transferring principal's property by deed to person other
than that intended by principal, which person, in turn, immediately deeded it back to agent in her name,
was a breach of fiduciary duty and agent's unrecorded deed to property could not stand against principal's
title.
OPINION
The action herein presented is one customarily brought in ejectment and sometimes in
equity to cancel instruments of conveyance, but the parties stipulated that these proceedings
be to quiet title to real property to which ownership is claimed by appellant but respondent
holds an unrecorded deed.
In July, 1959, appellant purchased undeveloped realty in Lyon County and proceeded to
add improvements thereon until it became worth about $20,000.00. Respondent, whom he
had met in a bar in Sacramento earlier that year, leased the improved property from the
appellant. They also entered into a connubial relationship which continued until appellant
executed a power of attorney under circumstances that gave rise to this lawsuit.
After the parties entered into the foregoing relationships, appellant moved to Mexico
where respondent joined him on several occasions. It was understood between them that they
would be married as soon as he obtained a divorce.
On one of the visits she brought him a power of attorney which was prepared by his
Nevada attorney who had formed a Nevada corporation and advised appellant to transfer the
property into the corporation, this, so it was thought, to make the property unavailable to his
present and former wives.
Appellant signed the power of attorney naming respondent the attorney in fact. He testified
that he instructed her to execute a deed to the property to the corporation through his Nevada
attorney. Instead, it appears, she transferred the property by deed to her uncle, Walker, who in
turn, immediately deeded it back to her. Walker's deed was recorded. The deed to her was
not.
These latter transfers were unknown to appellant. As a matter of fact he didn't know
anything further for two years because respondent made herself unavailable to appellant in all
respects. He returned to Nevada, made several attempts to talk to her, but she refused until he
commenced this quiet title action when he learned of the recorded deed to Walker. It was only
when interrogatories were served on her and she responded, that he was apprised of the deed
from Walker to her which she still held unrecorded. He then amended his complaint to allege
a breach of trust. At the conclusion of the trial, the court found in favor of the respondent who
was the defendant below.
Respondent contends that the terms of the power gave her the right to do with the property
as she desired, including transferring it to herself.
The portion upon which she evidently relies follows a customary general power and adds,
In addition to the foregoing general powers, I hereby authorize my said attorney to sell,
barter, exchange or dispose of any real estate of which I am now seized or possessed in fee
simple * * * . The real property which is the subject of this action is later set out as the
specific property to which the power of attorney was to apply.
The determinative point at issue is whether or not the respondent breached her fiduciary
relationship which was established by the power of attorney. We are of the opinion that she
did.
[Headnote 1]
An agent, such as respondent in these circumstances, owes to the principal the highest duty
of fidelity, loyalty and honesty in the performance of the duties by the agent on behalf of the
principal. The object of the agency is to ensure the transaction of the business of the principal
to his best advantage. An agent will not be permitted to pervert his authority to his own
personal gain in severe hostility to the interests of his principal. Restatement, Agency 2 Ed.
387; Mechem, Agency 1188, 1198; Sumner v. Nevin, 4 Cal.App. 347, 87 P. 1105;
American Cent. Ins. Co. v. Isaacs, 254 F. 789, 166 C.C.A. 235; Adams v. Herman, 106
Cal.App.2d 92, 234 P.2d 695.
[Headnote 2]
Thus, an agent may not purchase the property of his principal without the principal's
consent, Whitaker v. Brainard, 113 Cal.App. 705, 298 P. 1042, nor may an agent purchase the
property of the principal through the instrumentality of a third person. Burke v. Bours, 92 Cal.
108, 28 P. 57; Adams v. Herman, supra.
[Headnote 3]
We do not overlook the rule heretofore stated many times by the court that we will not
disturb the findings of the trial court where the evidence is conflicting, even where the facts
create grave suspicions and doubt. See Bird v. Mason, 77 Nev. 460, 366 P.2d 338.
[Headnote 4]
But this is not a case where the evidence is conflicting. Her testimony, i.e., that she paid
$5,500 but received no receipt, that appellant told her to give the property to her uncle in
payment of a pre-existing debt for which there was no evidence except appellant's denial, and
her surreptitious behavior subsequent to the execution of the power of attorney, lead
unerringly and irresistibly to the only possible conclusion that respondent violated her
fiduciary obligations in transferring the property to herself. Had appellant desired respondent
to have the property, a deed directly to her would have been the logical expression of his
intent.
As stated in McKay v. Williams, 67 Mich. 547, 35 N.W. 159, clearly and palpably, Such
a transaction cannot stand. It bears upon its face its own condemnation. It is prima facie void,
and as between the parties the principal is not bound by the deeds and may repudiate the
transaction and recover the land. Public policy will not tolerate such misdoing on the part of
an agent, and the courts will not stop to inquire whether a fraud was intended, but looking
alone at the relation of the parties * * * will declare the conveyance invalid.
The judgment and decree of the trial court are reversed. Judgment in favor of the appellant
and a decree quieting title shall be entered accordingly.
____________
81 Nev. 333, 333 (1965) Davis v. Jouganatos
JAMES W. DAVIS and MIRANTI REAL ESTATE CO., a Nevada Corporation, Appellants,
v. GEORGE A. JOUGANATOS, JACK W. GREENE and MARCELLE GREENE,
Respondents.
No. 4870
June 15, 1965 402 P.2d 985
Action to recover on brokerage contract. From a summary judgment of the lower court, in
favor of defendants, the plaintiff appealed. The Supreme Court, Badt, J., held that there where
agreement, governed by California law, to enter into a 50-50 coventure relationship with two
individuals both of whom were required to perform in obtaining qualified lessee and proper
financing was executed in Nevada, and only one of the two had a California brokerage
license, such agreement, unenforceable as to person not holding a license, was void in its
entirety and could not be the basis of recovery.
Affirmed.
Morse & Graves and Robert W. Austin, of Las Vegas, for Appellants.
Lionel & Gunderson and Jerome F. Snyder, of Las Vegas, for Respondents.
1. Brokers.
A complaint seeking recovery of real estate broker's commission which fails to allege that plaintiff was
licensed as a real estate broker or salesman does not state a cause of action. NRS 645.030, 645.260,
645.270.
2. Brokers.
Where performance of contract relating to broker's commission was to be in California the law of
California governed notwithstanding contract was executed and land was located in Nevada.
3. Brokers.
A broker's contract is contract of employment for personal services and its validity is determined by law
of state where made, unless it appears from contract that it is to be performed elsewhere, in which event
law of state where it is to be performed governs irrespective of location of property involved.
4. Brokers.
Where agreement, governed by California law, to enter into a 50-50 coventure relationship with two
individuals both of whom were required to perform in obtaining qualified lessee and proper financing was
executed in Nevada, and only one of the two had a California brokerage license, such agreement,
unenforceable as to person not holding a license, was void in its entirety and could not be the basis of
recovery. Cal.Bus. & Prof. Code 10131, 10135.
5. Brokers.
Where nonresident broker seeks to recover compensation for sale of land within state when brokerage
contract and its performance were in another state, where the law of the forum prevents recovery, the
nonresident broker will be barred from recovery within the forum, even though law of state where contract
was made and where performance was to be had does not bar the action.
OPINION
This is an appeal from a summary judgment entered in favor of the defendants
(respondents herein).
The motion for summary judgment was made under the provisions of NRCP, Rule 56(b)
and 56(c), and was based upon supporting affidavits and upon the ground that the complaint
raised no genuine issue of material fact, and that the defendants were entitled to judgment
as a matter of law.
fact, and that the defendants were entitled to judgment as a matter of law. We have concluded
that the summary judgment in favor of the defendants was proper and must be affirmed.
We turn, then, briefly to the facts. The complaint alleged Jouganatos and the Greenes were
the owners of 42 acres of land situate on what is known as the Strip in Las Vegas, Clark
County, Nevada, and that prior to July 24, 1964, the defendants, Jouganatos and the Greenes
contacted the plaintiffs for the purpose of joining with them in a co-adventure, whereunder
there would be placed upon said premises a resort hotel facility consisting approximately of
1,000 hotel rooms with related casino, restaurant, and convention hall facilities, and
whereunder plaintiffs would procure a suitable tenant for the completed project, construction,
and interim financing for said project, and that any profits derived therefrom would be
equally divided between plaintiffs and defendants Jouganatos and Jack W. Greene; that
pursuant to and in furtherance of such agreement Jouganatos and Jack W. Greene, on July 24,
1964, sent a letter to plaintiffs reading as follows:
This letter will serve as formal confirmation of our wire of this date that we will accept
on the following terms and conditions only a combination construction and takeout loan to be
obtained by you for a sum of not less than $8,000,000.00 plus whatever amount is necessary
to clear the encumbrances on the real property herein involved. Said loan is to bear simple
interest at the rate of 6.6 percent per annum on the funds as they are disbursed and said loan is
to be amortized over a twenty year period in equal monthly installments.
In consideration for said loan we agree to the following:
1. To enter into a 50-50 co-venture relationship with James W. Davis and Louis Moranti
and/or their nominees, with respect to said real property, which co-venture will lease said
project on a net, net, net basis.
2. To pay you or your nominees a total sum not to exceed 17 points as follows: Five
points out of our 50% share of the co-venture profits as received by us, said amount to be
secured either by our share of the stock in said co-venture or our interest in the real
property as the case may be; twelve remaining points to be a co-venture debt to be paid
out of the construction funds.
in said co-venture or our interest in the real property as the case may be; twelve remaining
points to be a co-venture debt to be paid out of the construction funds. Said total of seventeen
points is to constitute total cost for said construction and takeout loan as well as cost of
disbursement control.
This agreement or acceptance is expressly contingent upon:
1. Encumbrances on the real estate being paid off in full from proceeds of said
construction loan and co-venturers agreeing to same.
2. Lessees and lease being acceptable to lender and co-venturer.
The complaint further alleged that in furtherance thereof plaintiffs secured a lease between
Jouganatos and the Greenes and one Magallanes as lessee, and that an escrow was opened at
the Guardian Bank, Hollywood, California, between Jouganatos and the Greenes and said
Magallanes, wherein the lease and financial commitments were to be deposited, and, upon
information and belief, that Primary Development Co., a California corporation, and Carson
Land & Development Corporation, a Nevada corporation, were to be subtenants; that in
furtherance of the agreement plaintiffs procured the Bank of St. George, St. George, Utah, as
a participating bank in the financing of said project and procured from said bank the
necessary commitments to complete the co-adventure agreement, but notwithstanding this
fact, the defendants conspired between themselves to destroy and subvert the agreement
between plaintiffs and defendants and to utilize the efforts of plaintiffs by entering into an
agreement to sell to said Primary Development Co. and Carson Land & Development
Corporation the said property for $3,600,000, thereby destroying the rights of plaintiffs in and
to said property and destroying the financing procured for said project by plaintiffs; that
Jouganatos, the Greenes, Magallanes, Primary Development Co. and Carson Land &
Development Corporation, and each of them, knew that the object and purpose of such sale of
the property were to destroy any rights of plaintiffs in and to said project and said property;
that the plaintiffs under the agreement of July 24, 1964, would have been entitled to 50% of
all profits derived from said co-adventure; that such profits would be $1,200,000 per
year; that plaintiffs were damaged in the sum of $15,000,000 by reason of such lost
profits.
entitled to 50% of all profits derived from said co-adventure; that such profits would be
$1,200,000 per year; that plaintiffs were damaged in the sum of $15,000,000 by reason of
such lost profits. Plaintiffs demanded judgment establishing their interest as 50% as tenants in
common with Jouganatos, the Greenes and Magallanes, and for $15,000,000 as liquidated
damages by reason of breach of contract and for further relief.
Jouganatos and the Greenes answered, admitted the letter of July 24, 1964, and admitted
the opening of the escrow at the Guardian Bank in California but set forth as exhibits the
precise escrow instructions and alleged the final escrow instruction as of October 5, 1964,
limiting the time for performance as 3:00 p.m., October 7, 1964, and alleged that no
execution of the lease by sureties (accompanied by financial statements of such sureties) had
been deposited, and that under the terms of the escrow instructions all parties were released
from further performance. The answer proceeded with sundry denials and sundry special
defenses and defendants also moved for summary judgment upon several grounds, including
the ground that the complaint did not state a cause of action because the plaintiffs were not
licensed brokers.
The agreement upon which the plaintiffs rely required of the plaintiffs the performance of
certain things to entitle them to what amounted to a 50% commission. These requirements
included the securing of a takeout and construction loan in the sum of some $9,100,000 and
the securing of financially qualified lessees. These basic requirements are found both in the
initial letter agreement of July 24, 1964, and the subsequent agreements and escrow
instructions.
NRS 645.030 defines a real estate broker as any person, copartnership, association or
corporation:
* * * Who for another and for a compensation, or who with the intention or expectation
of receiving a compensation * * * negotiates or offers, attempts or agrees to negotiate the * *
* lease of * * * any real estate * * *.
NRS 645.260 reads in pertinent part as follows:
Any person, copartnership, association or corporation who, for another, in consideration
of compensation by fee, commission, salary or otherwise, or with the intention or
expectation of receiving compensation, * * * agrees to engage in, either directly or
indirectly, any single act or transaction contained in the definition of a real estate broker
in NRS 645.030, whether the act be an incidental part of a transaction, or the entire
transaction, shall constitute such person, copartnership, association or corporation a real
estate broker or real estate salesman within the meaning of this chapter."
who, for another, in consideration of compensation by fee, commission, salary or otherwise,
or with the intention or expectation of receiving compensation, * * * agrees to engage in,
either directly or indirectly, any single act or transaction contained in the definition of a real
estate broker in NRS 645.030, whether the act be an incidental part of a transaction, or the
entire transaction, shall constitute such person, copartnership, association or corporation a
real estate broker or real estate salesman within the meaning of this chapter.
NRS 645.270 provides:
No person, copartnership, association or corporation engaged in the business or acting in
the capacity of a real estate broker or a real estate salesman within this state shall bring or
maintain any action in the courts for this state for the collection of compensation for the
performance of any of the acts mentioned in NRS 645.030 without alleging and proving that
such person, copartnership, association or corporation was a duly licensed real estate broker
or real estate salesman at the time the alleged cause of action arose.
[Headnote 1]
Under these provisions a complaint seeking recovery of a real estate broker's commission
which fails to allege that the plaintiff was licensed as a real estate broker or salesman does not
state a cause of action. Whiddett v. Mack, 50 Nev. 289, 258 P. 233, and authorities therein
cited. The letter agreement of July 24, 1964, executed by Jouganatos and Jack W. Greene,
agreeing to pay a commission or compensation for financing the proposed project and
procuring an acceptable lease and lessees, was addressed to James W. Davis, with a carbon
copy to Louis Moranti, neither of whom was a licensed Nevada real estate broker. Davis, a
California resident, had a California real estate broker's license.
[Headnotes 2, 3]
Although the question is not raised by appellants, it becomes necessary to determine
whether Nevada or California law governs the enforceability of this contract. The subject real
estate was located in Nevada, the parties first met and negotiated in Nevada; and after a
phone call by Davis to Jouganatos in Sacramento, the letter agreement and a copy thereof
reflecting the understanding reached during the telephone conversation was mailed from
Sacramento to Davis in California and Moranti in Las Vegas.
phone call by Davis to Jouganatos in Sacramento, the letter agreement and a copy thereof
reflecting the understanding reached during the telephone conversation was mailed from
Sacramento to Davis in California and Moranti in Las Vegas. The parties set up an escrow in
a California bank to complete the agreement. Essential to a recovery by appellants was the
securing of a financially qualified lessee who would sign the lease held by the escrow agent.
The appellants alleged that they would have secured such lessee but for the conspiracy of the
defendants. We may accept the view that in the case of a broker-agent contract made at the
situs of the land and performable generally anywhere, its validity and effect is governed by
the law of the state where the contract was executed. Richmond-Carcia Oil Co. v. Coates, 5
Cir., 17 F.2d 262; Benedict v. Dakin, 243 Ill. 384, 90 N.E. 712. However, in the instant case
performance was not to be anywhere but in California, as clearly evidenced by the escrow
setup in the California bank. And where performance is in a state other than the state where
the contract was executed and the land is located, the law of the state of performance governs.
Annot., 159 A.L.R. 266; Richland Development Co. v. Staples, 5 Cir., 295 F.2d 122; James
v. Hiller, 85 Ariz. 40, 330 P.2d 999; In re Stoddard's Estate, 60 Wash.2d 263, 373 P.2d 116.
As stated in James v. Miller, 330 P.2d at 1001:
The general rule is that a brokerage contract is a contract of employment for personal
services and its validity is determined by the law of the state where made unless it appears
from the contract that it is to be performed elsewhere, in which event the law of the state
where it is to be performed governs irrespective of the location of the property involved.
Therefore, the validity and enforceability of the letter agreement is governed by California
law, the place where the contract was to be performed.
Under California law a real estate broker is any person who for compensation or with
the expectation of compensation negotiates to lease real property or solicits lenders to make
loans secured by real property. Cal. Business & Professions Code 10131. In California a
lease includes any lease, whether such lease is the sole transaction involved, or the
principal or an incidental part of the transaction involved."
transaction involved, or the principal or an incidental part of the transaction involved. Cal.
Business & Professions Code 10135.
[Headnotes 4, 5]
The July 24 letter agreement, by its terms, was an agreement to enter into a 50-50
co-venture relationship with James W. Davis and Louis Moranti * * *. Both Davis and
Moranti were required to perform. Davis alone had a California brokerage license. In Haas v.
Greenwald, 196 Cal. 236, 237 P. 38, it was definitely held, by a unanimous decision of the
California Supreme Court that such a contract, unenforceable as to the person not holding a
broker's license, was void in its entirety even though one of the parties acting as broker did
hold a broker's license. Haas v. Greenwald, supra, was cited with approval in Weber v.
Tonini, 151 Cal.App.2d 168, 311 P.2d 132, where a District Court of Appeal of California
said: Since the contract is an entire one the illegality in this particular invalidates it in toto.
Civ. Code, 1608; Haas v. Greenwald, 196 Cal. 236, 237 P. 38, 59 A.L.R. 1493. A hearing
by the supreme court was denied. We are therefore compelled to hold that, California law
being applicable under the conflict of laws doctrine, the contract is illegal and cannot be the
basis of recovery.
1

The summary judgment is affirmed.
Thompson J., and Zenoff, D. J., concur.
____________________

1
With reference to actions in which a non-resident broker seeks to recover compensation for the sale of land
within the state when the brokerage contract and its performance were in another state, the cases are quite
uniformly to the effect that where the law of the forum prevents recovery, the non-resident broker will be barred
from recovery within the forum, even though the law of the state where the contract was made and where
performance was to be had did not bar the action. Minot v. Hoyt Bros. Inc., 513 N.J.Super. 332, 147 A.2d 92;
Tanenbaum v. Sylvan Builders, Inc., 29 N.J. 63, 148 A.2d 176; Reed v. Kelly, 7 Cir., 177 F.2d 473; Stahl v.
Township of Teaneak, D.N.J., 162 F.Supp. 661; see also Arnold v. Wilson, S.D. Tex., 107 F.Supp. 961. In
analyzing the above cases and statutes similar to NRS 645.270, it has been stated that such a statute closing the
doors of the courts appears to be a directive which the courts quite clearly should follow irrespective of whether
the contract would otherwise be enforceable under the conflicts of laws principles. Richland Development Co.
v. Staples, 295 F.2d at 126. This view is supported by Professor Ehrenzweig who has stated
____________________
that: Foreign brokers who are not licensed locally, or who are employed by a contract which violates the local
Statute of Frauds, will not be permitted to recover commissions for sales of forum land, even though either the
contract of employment or the contract of sale was executed or performed in a state whose law would have
entitled them to that commission. Ehrenzweig, The Real Estate Broker and the Conflict of Laws, 59
Colum.L.Rev. 303, 306 (1959).
____________
81 Nev. 341, 341 (1965) Cooper v. Liebert
NATHAN B. COOPER, Trustee for the General Creditors of TWENTIETH CENTURY
COAL COMPANY, INC., Appellant, v. ARTHUR LIEBERT and CHARLES LIEBERT,
Respondents.
No. 4885
June 15, 1965 402 P.2d 989
Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Judge.
Suit on foreign judgment. Following attachment of property by plaintiff, a third party
claim was filed and plaintiff was served with notice to furnish an undertaking as provided by
statute. The trial court denied plaintiff's motion to dismiss the third party claim, and upon
plaintiff's failure to give undertaking the property was released from attachment by sheriff.
Plaintiff appealed. The Supreme Court, Zenoff, D.J., held that plaintiff was required by
statute to furnish undertaking upon filing of third party claim to property and service of notice
to furnish such undertaking, and failure to do so justified sheriff's release of property from
attachment.
Affirmed.
Deaner, Butler & Adamson, of Las Vegas, for Appellant.
George Rudiak, of Las Vegas, for Respondents.
1. Attachment.
Statute pertaining to third party claims in property levied on by writ of attachment is complete and valid
remedy to third persons whose property has been attached, and remedy therein provided third persons is
exclusive. NRS 31.070.
2. Attachment.
Term property in statute pertaining to third party claims in property levied upon by attachment includes
both real and personal property. NRS 31.070.
3. Attachment.
Plaintiff who attached certain real property in his suit on foreign judgment was required by statute to
furnish undertaking upon filing of third party claim to property and service of notice to furnish such
undertaking, and failure to do so justified sheriff's release of property from attachment. NRS 31.070.
OPINION
This is an appeal from an order denying plaintiff's (the appellant here) motion to discharge
a third party claim, dissolving a stay, and conditionally requiring the sheriff to release an
attachment. We need only be concerned with the order denying appellant's motion to
discharge the third party claim as the determination of that issue disposes of the appeal.
Appellant brought suit in Nevada upon a foreign judgment obtained in Kentucky.
Complying with the procedural requirements of Nevada's attachment statutes, certain real
property was attached at the commencement of the action. Respondents, not parties to the
litigation, filed a third party claim pursuant to NRS 31.070 and served appellant a notice to
furnish an undertaking as provided therein. Rather than follow the procedure provided in the
statute, appellant chose to file a motion to discharge the third party claim and obtained an
order staying further proceedings. After hearing, the trial court denied the motion to dismiss
the third party claim, dissolved the stay order, and required appellant to give the sheriff an
undertaking in an amount double the value of the property attached ($533,200) by 5:00 p.m.,
on February 15, 1965, the order being entered about 4:00 p.m., on the same date. Appellant
failed to give the sheriff the undertaking and the sheriff released the property from the
attachment.
The issue presented on appeal is whether or not the third party claim statute can be applied
to attachments of real property.
1
NRS 31.070 is part of Title 3 of the Nevada Revised
Statutes.

____________________

1
NRS 31.070 states in pertinent part: Third party claims in property levied on; undertaking by plaintiff;
liability of sheriff; exception to sufficiency of sureties; hearing to determine title to property.
1. If the property levied on is claimed by a third person as his
NRS 31.070 is part of Title 3 of the Nevada Revised Statutes. NRS 28.010 of the same
Title 3 states:
Property' includes both real and personal property. The attachment statutes of Nevada
make clear provision for the attachment of real property and the method and procedures
therefor. NRS 31.060 (1). However, appellant contends that First National Bank of Santa Ana
v. Kinslow, 8 Cal.2d 339, 65 P.2d 796, and subsequent California legislation, C.C.P. 689,
compel us to construe our third party claim statute in the same light as has California, which
clearly makes the third party claim provisions inapplicable to realty.
We do not accept this contention. First, it is not clear that our third party claim statute was
borrowed from California. The legislative history does not so advise us, and there are
differences in the statutory language when the two are compared. In any event, our statute
was enacted in 1933, some four years before Kinslow was decided by the California court,
thus precluding any possibility that our legislature had the Kinslow opinion in mind when it
passed the law.
____________________
property by a written claim verified by his oath or that of his agent, setting out his right to the possession thereof,
and served upon the sheriff, the sheriff must release the property if the plaintiff, or the person in whose favor the
writ of attachment runs, fails within 5 days after written demand to give the sheriff an undertaking executed by at
least two good and sufficient sureties in a sum equal to double the value of the property levied on. If such
undertaking be given, the sheriff shall hold the property. The sheriff, however, shall not be liable for damages to
any such third person for the taking or keeping of such property if no claim is filed by any such third party.
2. Such undertaking shall be made in favor of and shall indemnify such third person against loss, liability,
damages, costs and counsel fees by reason of such seizing, taking, withholding or sale of such property by the
sheriff.
* * * * *
5. Whenever a verified third-party claim is served upon the sheriff upon levy of the writ of attachment, the
plaintiff, or the person in whose favor the writ of attachment runs, shall be entitled to a hearing within 10 days
therefrom before the court having jurisdiction of the action, in order to determine title to the property, in
question, which hearing must be granted by the court upon the filing of an application or petition therefor. Five
days' notice of such hearing must be given to an parties claiming an interest in the property, or their attorneys,
which notice must specify that the hearing is for the purpose of determining title to the property in question. The
court may continue the hearing beyond the 10-day period, but good cause must be shown for any such
continuance.
possibility that our legislature had the Kinslow opinion in mind when it passed the law.
Kramer v. State of Nevada, 60 Nev. 262, 275, 108 P.2d 304; State v. Ritschel, 220 Minn.
578, 20 N.W.2d 673, 168 A.L.R. 274; Gikas v. Nicholis, 96 N.H. 177, 71 A.2d 785, 24
A.L.R.2d 576. Nor do we like the Kinslow result, for it requires a third party claiming
ownership of attached realty to file an independent action for its release. This seems to us to
place an expensive and unwarranted burden upon the third party claimantthe circumstance
which the summary procedure of the third party claim statute is designed to avoid.
To hold otherwise would be manifestly unjust. The statutes provide a remedy for
supplying an undertaking by the defendant either to prevent an attachment (NRS 31.040), or
to vacate an attachment (NRS 31.030 (2)), or to discharge an attachment (NRS 31.180, NRS
31.200), but appellant would leave one not involved in the lawsuit without a speedy or
adequate remedy at all.
[Headnotes 1-3]
We hold that NRS 31.070 is a complete and valid remedy to third persons whose property
has been attached, that the remedy therein provided is exclusive, cf. Aronoff v. Katleman, 75
Nev. 424, 345 P.2d 221, and that the term property includes both real and personal
property.
Affirmed.
____________
81 Nev. 344, 344 (1965) Cooper v. Nevada Bank of Commerce
CHARLES CLAY COOPER, Doing Business as COOPER FARMS, Appellant, v. NEVADA
BANK OF COMMERCE, a Nevada Corporation, Respondent.
No. 4883
June 22, 1965 403 P.2d 198
Appeal from the Fourth Judicial District Court, Elko County; Jon R. Collins, Judge.
Action by landlord against bank for conversion of money allegedly belonging to landlord,
deposited in bank by tenant, and applied by bank to indebtedness owed by tenant to bank.
by tenant, and applied by bank to indebtedness owed by tenant to bank. The trial court
granted the bank's motion to dismiss, and the landlord appealed. The Supreme Court, Badt, J.,
held that the evidence failed to establish that bank knew of landlord's interest in tenant's bank
account prior to November 20, 1963, but that bank had notice that landlord had interest in
deposits of crop proceeds by tenant after November 20, 1963, where landlord on such date
had demanded that bank deliver to him landlord's rental proceeds and asserted that such
rentals did not belong to either tenant or the bank.
Affirmed in part, but remanded for limited new trial.
Mann and Scott, of Elko, for Appellant.
Bradley & Drendel, of Reno, and Leo J. Puccinelli, of Elko, for Respondent.
1. Banks and Banking.
Bank which has neither actual knowledge of, nor knowledge of facts sufficient to put it upon inquiry
concerning, third persons' interest in funds deposited in depositor's individual name may apply deposit to
depositor-debtor's individual debt owed bank.
In determining whether bank had knowledge of facts sufficient to put it on inquiry that landlord had
interest in crop proceeds deposited in bank in tenant's individual name, Supreme Court had to view
evidence, and inferences drawn therefrom, in light most favorable to landlord, where motion to dismiss had
been entered against landlord. NRCP 41 (b).
Evidence which revealed that bank knew that landlord and tenant had agreement as to rent but not that
agreement gave landlord interest in crop sales proceeds, that checks for proceeds were payable to tenant
and bank jointly, that tenant allowed bank to apply proceeds to tenant's indebtedness to bank, and that
landlord did not notify bank of his interest in proceeds prior to November 20, 1963, failed to establish that
bank knew of landlord's interest in tenant's bank account prior to November 20, 1963.
Prior to November 20, 1963, bank in which tenant deposited crop proceeds did not have duty to inquire
whether landlord had interest in crop proceeds, where tenant treated proceeds as his own, and landlord
never notified bank, which lacked knowledge of landlord's interest in proceeds, to the contrary.
Bank had notice that landlord had interest in crop proceeds deposits made by tenant after November 20,
1963, where landlord on such date had demanded that bank deliver to him landlord's rental proceeds and
asserted that such rentals did not belong to either tenant or the bank.
OPINION
Cooper sued in the court below seeking a judgment against the bank for conversion of
money asserted to belong to Cooper. At the close of Cooper's case the bank moved to dismiss
under NRCP, Rule 41 (b). The motion was granted and Cooper appeals.
Cooper owned certain lands in Diamond Valley and leased portions thereof to Bailey
under provisions which gave Cooper 10% of the proceeds of the crops raised. Bailey sold the
crops and deposited the money with the bank. On November 4, 1963, Bailey's commercial
checking account was overdrawn in the sum of $6,981.54, and he also owed an overdue note
to the bank in the sum of $159,000. Upon receiving another deposit representing crop
proceeds, the bank deposited $6,981.54 in Bailey's checking account, thereby closing it, and
applied the remainder of this deposit and all other subsequent deposits to satisfy Bailey's
overdue note obligation. Cooper then prevailed upon Bailey to write a check on the bank for
$5,330.11 which they agreed was the rental then owed Cooper, but Bailey informed Cooper
that the bank had closed out the account and that the check was not good. Nevertheless,
Cooper presented the check to the bank and payment was refused. After making written
demand on the bank, Cooper brought this suit for conversion.
The theory of Cooper's case (mainly brought out by calling the manager of the bank as an
adverse witness) was that the bank knew the terms of the Cooper-Bailey lease agreements, of
which there were five; knew that 10% (the percentage stated in two of the leases was later
increased to 20%) of the gross yield belonged to Cooper; knew that Cooper owned the land
that Bailey was farming, and in particular had full knowledge of a certain release
executed February 19, 1963, having to do with the payment of an obligation by the
sublessees to Bailey.
to Cooper; knew that Cooper owned the land that Bailey was farming, and in particular had
full knowledge of a certain release executed February 19, 1963, having to do with the
payment of an obligation by the sublessees to Bailey. Following is the release signed by
Bailey and Mr. Ballew, an officer of the bank:
You are hereby authorized and instructed to pay unto Clay Cooper, on behalf of Cooper
Farms, the sum of $1,521.08, which constitutes the amount due for landlord share of the
receipts derived from the sale of crops from Cooper Farms' lands situate in Diamond Valley,
Eureka County, Nevada during the crop season of 1962. It is understood and agreed that said
amount is arrived at by the summary of potato sales made to and compiled by A. Levy and J.
Zetner Co.
It is further understood and agreed that the landlord's percentage of the receipts accruing
from any additional sales of 1962 crops will be pro rated and paid in the usual manner.
When confronted with this release, Mr. Ballew testified that he knew by it and by the
conversation at the time it was executed that Cooper and Bailey had some agreement between
them but he was not aware that Cooper had an interest in the crop proceeds. He admitted only
that he knew Bailey owed Cooper some money. He further stated that the landlord's share
of the proceeds referred to in the release was concerned with terms under a sublease executed
by Bailey and not the Bailey-Cooper lease. He could not define the term paid in the usual
manner other than that he thought it meant payment by check or work performed.
There was another occasion in April, 1963, when Cooper met with Ballew to discuss the
probability that the bank would continue to finance Bailey's operation. However, Ballew
categorically denied that he ascertained that Cooper owned an interest in the crop proceeds.
Under these circumstances and other evidence to be discussed shortly, Cooper contends
that the bank had sufficient knowledge of his interest in the crop proceeds to prevent them
from applying these proceeds to satisfy Bailey's personal obligation owed the bank.
[Headnotes 1, 2]
The majority rule is that where the bank, in which funds in which third persons have an
interest are deposited in the individual name of the depositor, has neither actual knowledge
nor knowledge of facts sufficient to put it upon inquiry concerning the third person's interest,
it may apply the deposit to the individual debt of the depositor-debtor. Annot., 13 A.L.R. 324,
supplemented by 50 A.L.R. 632; 10 Am.Jur.2d, Banks 676. In McStay Supply Co. v.
Stoddard, 35 Nev. 284, 132 P. 545, this court said: If a principal permits his agent to deposit
money in the bank without any notice to the bank that the money belongs to the principal, and
the agent checks out the money or subjects it to a lien, on account of any borrowing of
money, then the principal and not the bank is the loser. Applying this language literally, it
could be held that since Cooper did not inform the bank of his interest in the crop proceeds,
the bank was justified in applying these proceeds to satisfy Bailey's outstanding obligation.
However, this language was dicta and it should not be applied to preclude Cooper from
recovering his interest in the proceeds if the bank had knowledge of facts sufficient to put
them on inquiry of his interest. In determining whether the bank had knowledge of facts
sufficient to put it on inquiry that Cooper had an interest in the proceeds, this court must view
the evidence and the inferences drawn therefrom in a light most favorable to Cooper since the
Rule 41(b) motion to dismiss was entered against him. Gunlock v. New Frontier Hotel Corp.,
78 Nev. 182, 370 P.2d 682; Gordon v. Cal-Nevada Lodge, Inc., 71 Nev. 336, 291 P.2d 1054.
The bank knew that Bailey was growing crops on Cooper's land and that the two had an
agreement concerning the rent. However, it was never proved and the bank denied that it
knew the agreement gave Cooper an interest in the proceeds of the crop sales. If this were the
only evidence before the court, it would be a close question whether the bank had knowledge
of facts sufficient to impose upon it a duty of inquiry as to what interest Cooper had in the
proceeds; especially since the inference that it had a duty to inquire is faced with the equally
logical inference that the Cooper-Bailey agreement contemplated a normal lump sum
rental, and this inference is supported by Mr.
equally logical inference that the Cooper-Bailey agreement contemplated a normal lump sum
rental, and this inference is supported by Mr. Ballew's testimony that they had no idea that the
agreement gave Cooper an interest in the crop proceeds deposited with the bank.
[Headnotes 3, 4]
However, the complexion of the case is considerably changed when we consider the
additional facts that the checks received as payment for the crops were made out to Bailey
and the bank jointly; that Bailey allowed the bank to apply whatever part of the proceeds that
was needed and reasonable to satisfy his personal debt owed the bank, the bank depositing the
remainder in Bailey's general checking account; that Bailey never informed the bank of
Cooper's interest in the proceeds; that Cooper admitted that Bailey had the right to sell the
crops and receive the proceeds; and that Cooper never notified the bank of his interest in the
proceeds. In light of all these facts, the inference which Cooper argues must be drawn, viz.,
that the bank knew of his interest in the bank account, is not permissible. The only reasonable
conclusion is that prior to November 20, 1963, the bank did not have a duty to inquire
whether Cooper had an interest in the crop proceeds since Bailey treated them as his own, and
Cooper never notified the bank to the contrary.
[Headnote 5]
However, after the written demand made by Cooper on November 20, 1963, demanding
that the bank deliver to him the land owner's rental proceeds from potatoes raised by the
Bailey Brothers and that such rentals did not belong either to the Baileys nor the Bank, the
bank was on notice that Cooper had an interest in any subsequent deposit representing crop
proceeds. It knew or easily could have found out that the interest in such proceeds was 10%
of the proceeds on land covered by three of the leases and 20% on land covered by two
leases. The bank records indicate that the following receipts were had by the bank subsequent
to the acquisition of its knowledge on November 20, 1963; namely, November 22, 1963,
$1,023.22; December 3, 1963, $1,022.70; December 12, 1963, $555.63.
$1,022.70; December 12, 1963, $555.63. Following December 12, 1963, some additional
deposits representing crop proceeds were received and credited against the note obligation
owed by Bailey. However, the amount of these deposits and whether Cooper's interest was
10% or 20% of the crop proceeds received after November 20, 1963, cannot be answered by
the information in the record. This determination must be made by the trial court.
It is, accordingly, ordered that the trial court order a new trial limited to a determination of
the extent of the deposits representing crop proceeds received after November 20, 1963, and a
determination of what percentage of such crop proceeds belonged to Cooper, and enter
judgment accordingly. In all other respects the motion to dismiss is affirmed. Each party shall
pay his own costs on appeal.
____________
81 Nev. 350, 350 (1965) Faye v. Hotel Riviera, Inc.
FRANCES FAYE, Appellant, v. HOTEL
RIVIERA, INC., Respondent.
No. 4886
June 22, 1965 403 P.2d 201
The lower court dismissed case for failure to bring action to trial within five years after
filing of action, and the plaintiff appealed. The Supreme Court, Badt, J., held that dismissal
was proper, where parties had not stipulated that time should be extended, no application was
made to court for any relief, and court was not made aware of plaintiff's problem.
Affirmed.
Murray Posin, of Las Vegas, for Appellant.
Peter Echeverria, of Reno, and Singleton and DeLanoy, and Rex A. Jemison, of Las
Vegas, for Respondent.
Dismissal and Nonsuit.
Dismissal of case for failure to bring action to trial within five years after filing of action was proper,
where parties had not stipulated that time should be extended, no application was made to court for any
relief, and court was not made aware of plaintiff's problem. NRCP 41 (e).
OPINION
This is an appeal from an order dismissing the case below for failure to bring the action to
trial within five years after the filing of the action pursuant to NRCP, Rule 41 (e), reading in
part as follows:
Any action heretofore or hereafter commenced shall be dismissed by the court in which
the same shall have been commenced or to which it may be transferred on motion of the
defendant, after due notice to plaintiff or by the court upon its own motion, unless such action
is brought to trial within five years after the plaintiff has filed his action, except where the
parties have stipulated in writing that the time may be extended.
The case was not brought to trial within the statutory five-year period and there was no
written stipulation between the parties extending the time. No application was made to the
court for any relief, nor was the court made aware of the plaintiff's problem. Although as we
have said in Smith v. Garside, 81 Nev. 312, 402 P.2d 246: We are confident that, had the
court been so advised, it would have accommodated her by at least commencing trial.
The chronology of proceedings in the court below was as follows:
July 13, 1959Complaint filed.
August 12, 1959Answer served.
August 18, 1959Note for Trial Docket filed by plaintiff.
December 7, 1959Notice of Taking Deposition of plaintiff served by defendant.
January 15, 1960Another Notice for taking plaintiff's deposition served.
March 1, 1960Another Notice for taking plaintiff's deposition served.
April, 1960Plaintiff's deposition taken by defendant.
November 21, 1960Case set for trial and vacated on consent of attorneys for both
parties.
December 9, 1960Note for Trial Docket filed by plaintiff and trial set for June 5, 1961.
This setting was vacated on court's motion and trial reset for October 9, 1961. New setting
vacated on consent of attorneys, but at whose instance is not known.
October 18, 1961Note for Trial Docket filed by plaintiff. Trial set for May 28, 1962.
March 29, 1962Defendant serves Notice of Taking Depositions of a witness, Jay Florian
Mitchell, and of Dr. Ray C. Wixom. Trial setting vacated at the request of defendant's
counsel.
June 6, 1962Note for Trial Docket filed by plaintiff.
July 6, 1962Note for Trial Docket filed by plaintiff. Trial set for February 18, 1963, and
at request of counsel for plaintiff, reset for April 1, 1963.
November 19, 1962Notice of association of counsel for defendant is served.
December 27, 1962Notice of Taking Deposition of plaintiff is served by defendant's
counsel.
October 17, 1963Plaintiff's deposition taken and completed; also deposition of M. Faye
Shepherd.
January 29, 1964Note for Trial Docket filed by plaintiff. Pretrial hearing set for January
14, 1965, and trial set for March 1, 1965.
Appellant does not seek to have this court overrule Thran v. District Court, 79 Nev. 176,
380 P.2d 297, in which we said:
We are of the opinion that NRCP 41 (e) is clear and unambiguous and requires no
construction other than its own language. Whenever plaintiff has failed for two years after
action is filed to bring it to trial, the court may exercise its discretion as to dismissing it, but
when it is not brought to trial within five years, the court in the absence of a written
stipulation extending time, shall dismiss it. In the latter case the exercise of discretion in not
involved. Miller & Lux v. Superior Court, 192 Cal. 333, 219 P. 1006.
It is to be noted that on October 18, 1961, plaintiff asked for a trial setting the middle of
January, 1962; that on June 6, 1962, plaintiff asked for a trial setting early in 1963, * * *
in view of the fact that plaintiff is an entertainer and that Melvin Belli, Esq. [a California
attorney] will be associated in the trial of this action; that on July 6, 1962, plaintiff sought a
trial setting for April 1, 1963, for the same reason; and that finally on January 29, 1964, with
the mandatory five-year period about to expire on July 13, 1964, plaintiff requested a firm
setting as a courtesy to out-of-state counsel for plaintiff, and out-of-city counsel for
defendant, in order that they may adjust their calendars. On such request a pretrial hearing
was set for January 14, 1965, and trial set for March 1, 1965, both dates being beyond the
five-year period.
Appellant says that it is a matter of general knowledge that for upwards of the past 10 to
12 months the trial calendar of the court has been so congested that divers procedures were
initiated by the master calendar judge to relieve the congestion, and that notices were sent to
all counsel in the judicial district deferring trials of all civil cases. However, from the record
before us, it is apparent that a great many months of the delay were primarily chargeable to
the plaintiff herself and to her out-of-state-appointed counsel. The plaintiff was an entertainer
by profession, with many engagements both within and out of the United States. Her
California counsel was notably engaged in much trial work in various jurisdictions.
The order dismissing the action is affirmed on the authority of Thran v. District Court,
supra, and Smith v. Garside, supra, and cases therein cited.
Thompson, J., and Zenoff, D. J. concur.
____________
81 Nev. 354, 354 (1965) County of Lander v. Board of Trustees
THE COUNTY OF LANDER, Appellant, v. THE BOARD
OF TRUSTEES OF THE ELKO GENERAL HOSPITAL, Respondent.
No. 4813
June 24, 1965 403 P.2d 659
Appeal from the Seventh Judicial District Court, White Pine County; Jon R. Collins,
Judge.
Action by hospital against county to recover for services rendered county resident. The
trial court rendered judgment for plaintiff, and defendant appealed. The Supreme Court, Badt,
J., held, inter alia, that hospital which rendered services to county resident had right in first
instance to determine that resident was indigent person, for whose care hospital could recover
from county.
Affirmed.
George G. Holden, District Attorney, and Roger William MacDonald, Deputy District
Attorney, Lander County, for Appellant.
Joseph O. McDaniel, District Attorney, and Philip M. Marfisi, Deputy District Attorney,
Elko County, for Respondent.
1. Paupers.
Hospital which rendered services to county resident had right in first instance to determine that resident
was indigent person, for whose care hospital could recover from county. NRS 450.400.
2. Paupers.
Evidence in hospital's action against county to recover for services rendered county resident supported
finding that resident was in fact an indigent or poor person. NRS 450.400.
3. Paupers.
Hospital's notice addressed to board of county commissioners, advising that county resident who became
sick in county was in hospital and requesting voucher for submission of claim complied with requirements
of statute relating to hospital's recovery for care rendered county resident. NRS 450.400.
4. Paupers.
County's obligation to support indigents, paupers, and poor people results only from statutory provision
imposing such obligation. NRS 450.400.
5. Paupers.
County which was sued by hospital to recover for services rendered county resident, whom hospital had
determined to be indigent or poor person, had right to challenge resident's status and
rebut determination that he was entitled to relief and aid.
indigent or poor person, had right to challenge resident's status and rebut determination that he was entitled
to relief and aid. NRS 450.400.
6. Paupers.
Person may be considered a pauper or indigent even though he has some property and such property is
not available for his immediate relief or is manifestly disproportionate to his needs.
7. Courts.
Early case was not binding authority where statute under which it had been decided was expanded.
OPINION
This appeal from a judgment in favor of respondent and against the appellant county in the
sum of $5,416.64 for the balance due for hospital services rendered to a resident of Lander
County, who was without means to pay the same, presents the following issues. These issues,
although not so stated in appellant's opening brief, appear to us to be (1) whether the Elko
General Hospital had the right in the first instance to make the determination that the patient,
one Frank P. Grunstad, was an indigent or poor person; (2) whether, assuming the hospital
had this right, Grunstad was in fact an indigent or poor person as held by the trial court; and
(3) whether the respondent hospital gave sufficient notice to the appellant county in
compliance with the requirements of the statute.
We first turn to the facts. Frank P. Grunstad resided in Battle Mountain, Lander County,
Nevada, for many years prior to his last illness and death, it being conceded by all parties that
he was a legal resident of this town. He died July 24, 1963, at the Elko General Hospital of
pulmonary hemorrhage due to recurrent carcinoma of the esophagus.
For many years prior to his death, Mr. Grunstad lived in or near Battle Mountain, in
Lander County, and was engaged in various mining and other ventures. At the time of his
initial hospitalization in February, 1963, he was unemployed but drawing old-age insurance
benefits. His livelihood was substantially dependent upon these insurance payments, even
though testimony at the trial indicated he did odd jobs from time to time as they were
available and as his health permitted.
indicated he did odd jobs from time to time as they were available and as his health
permitted. He had never applied for or been granted indigent or pauper's aid by Lander
County or the state. He owned no real or personal property except his immediate personal
effects. He had recently owned an automobile which was wrecked and apparently never
repaired. He has at least two brothers, one living in Sparks, Nevada, who appeared and
testified as a witness for the plaintiff-respondent, and one living somewhere in California.
Mr. Grunstad traveled to Elko from Battle Mountain in February, 1963, and as a private
patient consulted John M. Read, M.D. He was admitted to the Elko General Hospital under
the care of Dr. Read on February 13, 1963. An esophageal biopsy was performed by Hugh S.
Collett, M.D., on February 14. Mr. Grunstad was discharged from the hospital on February
15, after incurring charges of $139.20, which sum was paid through his insurer, Bankers Life
of Chicago, Illinois. There is no evidence that he was looked upon or considered to be an
indigent during this period of hospitalization. No notice of this hospitalization or his financial
condition was given to Lander County.
On March 6, 1963, he was re-admitted to the Elko General Hospital and two major
operations were performed upon him. He remained in the hospital until his death on July 24,
1963. From the date of his re-admission to the hospital until his death, he was under the care
of Dr. Collett, and at no time was his condition sufficiently improved to enable him to leave
the hospital and be cared for either at home or at the hospital in Battle Mountain. His hospital
ledger sheet indicates he lived in Battle Mountain, was an unemployed laborer, classified as
insured, gave the name and address of his brother in Sparks, and listed his insurance carrier as
Bankers Life under policy No. 54562431. When he died, he had incurred hospitalization costs
of $6,006.75. Of this sum, $139.20 was apparently paid by his insurer; and his brother, D. W.
Grunstad, testified that he paid $450.91 from the proceeds of three social security checks
belonging to the decedent, which he had obtained in some sort of probate proceedings in
Washoe County.
some sort of probate proceedings in Washoe County. Part of the latter funds were applied to
the payment of the decedent's debts and his funeral expenses, the remainder of the balance
available being paid to the Elko General Hospital. These transactions left a balance owing the
hospital of $5,416.64, the amount of the judgment recovered by the respondent in the lower
court.
The first notice given Lander County by the Elko Hospital that Mr. Grunstad was a patient
there, claimed by the hospital to be a resident of Lander County, an indigent, pauper, poor
person or incapacitated by disease, and the responsibility of Lander County was the notice or
letter, dated March 8, 1963. This letter, signed by the business manager of the hospital, was
addressed to the Board of County Commissioners, Lander County, Austin, Nevada.
1
It was
received by the clerk of that board, placed in a drawer in her office and brought to the actual
and official attention of the board at its next regular meeting in Austin, April 5, 1963. The
clerk, pursuant to directions of the board, notified Elko General Hospital by letter dated April
8, 1963, that Mr. Grunstad was not a Lander County patient. Thereafter, Elko General
Hospital from time to time sent statements of account and vouchers to Lander County, none
of which was ever acted upon.
Respondent filed its action against Lander County on the basis of the provisions of NRS
450.400 quoted in full in the margin,
2
and recovered judgment.
____________________

1
The letter was signed by the business office manager of Elko General Hospital and was in the following
words:
Please be advised that Frank P. Grunstad who reports his address as Box 243, Battle Mountain, Nevada, was
admitted to the Elko General Hospital on 3/6/63 under the care of Dr. Collett.
The above mentioned patient reports: [he] became sick in your county, * * * and under section 450.000 of the
Nevada Revised Statutes hospital privileges are being extended to this patient.
Information regarding this patient may be secured from the attending Physician. Would you kindly forward
your county voucher for submission of claim?

2
1. When the privileges and use of the hospital are extended to a resident of another county who is entitled
under the laws of this state to relief, support, care, nursing, medicine, medical or surgical aid from such other
county, or to one who is injured, maimed
[Headnote 1]
The appellant county contends that the determination of Grunstad's status was entirely
within the jurisdiction of the Board of County Commissioners of Lander County and that said
county commissioners were unlawfully ousted of such jurisdiction by the action of the
superintendent of the Elko General Hospital in determining that Grunstad was a pauper or
poor or an indigent person. We think, however, that it is clear from a reading of NRS 450.400
that the original determination of Grunstad's status must be made by the hospital.
[Headnote 2]
The factual determination is beyond doubt, as Grunstad's assets were grossly inadequate to
provide the needed medical care. A realization on all his assets provided only $450.91 on the
hospital's bill of $6,006.75. Evidence as to his status and as to the extent of his assets and as
to the hospital bill were all produced before the district court and amply justify the court's
findings.
[Headnote 3]
The notice addressed to the Board of County Commissioners of Lander County complied
in all respects with the requirements of the statute.
[Headnote 4]
A county's obligation to support indigents, paupers, and poor people results only from a
statutory provision imposing such a legal obligation. 41 Am.Jur., Poor and Poor Laws 2.
This obligation is fixed in this state by the provisions of NRS 42S.010 and 42S.050, which
are set forth in the margin.3
____________________
or falls sick in such other county, the governing head shall immediately notify the board of county
commissioners of such county.
2. The notice shall be in writing and addressed to the board of county commissioners of such county.
3. The board of county commissioners receiving the notice shall cause such person to be removed
immediately to that county, and shall pay a reasonable sum to the hospital for the temporary occupancy, care,
nursing, medicine, and attendance, other than medical or surgical attendance, furnished such person.
4. If the board of county commissioners shall neglect or refuse to remove such person, or if in the opinion of
the attending physician it is not advisable to remove such person, the governing head shall have a legal claim
against the county for all occupancy, nursing, care, medicine, and attendance, other than medical or surgical
attendance, necessarily furnished, and may recover the same in a suit at law.
the provisions of NRS 428.010 and 428.050, which are set forth in the margin.
3

In Outagamie County v. Town of Brooklyn, 18 Wis.2d 303, 118 N.W.2d 201, a similar
situation as here presented faced the Wisconsin court. In that case a resident of Washburn
County was taken ill in Outagamie County and rushed to a hospital in that county. The
director of the Outagamie County department of public welfare investigated the financial
status of the patient and concluded that she was a dependent person. Wisconsin law
provides that a county giving needed medical aid to a resident of another county has a right to
collect for all expenses from the county of the person's residence. Outagamie County
promptly gave Washburn County the non-resident notice required by law, and Washburn
County denied liability. Outagamie County commenced proceedings before the State
Department of Public Welfare as required by law to recover from Washburn County the
amount of relief furnished. The board upheld Outagamie County's claim. This determination
was reversed by the circuit court because there was no competent evidence relating to the
financial condition of the patient and the need for hospital care. On appeal, the court reversed
the circuit court and upheld the welfare department's determination. The court stated that the
law commits to the local authorities the quasi-judicial duty of determining whether a person
is in need of relief, and that the county relief authorities must make this factual determination
before granting relief to a person who is a resident of another county. Once made, the
determination by the Outagamie official is cloaked with the presumption of regularity and it
is presumed that relief was extended only after first determining that the patient was a
dependent.
____________________

3
NRS 428.010 1. Every county shall relieve and support all pauper, incompetent, poor, indigent persons
and those incapacitated by age, disease or accident, lawfully resident therein, when such persons are not
supported or relieved by their relatives or friends, or by their own means, or by state hospitals or other state or
private institutions.
NRS 428.050 When application is made by any pauper to the board of county commissioners and it shall
appear to the satisfaction of the board that the person so applying for relief has resided in the state and county
for the times required by NRS 428.040, he shall be entitled to all of the relief provided by this chapter.
the patient was a dependent. While this presumption is rebuttable, Washburn County
presented no evidence whether the patient qualified as a dependent. And since the
presumption of regularity was not rebutted, the court held that Outagamie County's
determination should stand. The court finally considered what evidence was produced to
show that the patient had financial resources sufficient to prevent her from qualifying as a
dependent. The court held that evidence of a homestead and an automobile was insufficient to
establish that she was not a dependent; and in any event, this property was not sufficient to
pay for the needed hospital and medical care.
Authorities to the contrary did not involve such a statute as NRS 450.400.
[Headnote 5]
Lander County of course had the right to challenge Grunstad's status in the action in the
district court and to rebut the hospital's determination that he was entitled to relief and aid.
This it attempted to do without success. The evidence shows that he was previously
hospitalized and his insurance company paid his $139.20 bill; that he received old-age
insurance payments which he lived upon; that he had no assets or real property; and that he
was unemployed prior to being admitted to the hospital in March. The appellant tried to
establish that Mr. Grunstad had a good credit standing in the community. The sheriff of
Lander County testified that Mr. Grunstad always paid his $10 a month cabin rent one month
in advance; and to the question of whether Mr. Grunstad was a man in the community whose
credit was good, he stated, yes, because I never heard anything to the contrary.
[Headnote 6]
Although a person has some property, he may still be considered a pauper or indigent if
such property is not available for his immediate relief or is manifestly disproportionate to his
needs. Annot., 98 A.L.R. 870, 872; 41 Am.Jur., Poor and Poor Laws 17-20. And it has
been held that a person does not have to be completely destitute and helpless to be considered
a destitute or indigent person, but can have some income or own some property.
indigent person, but can have some income or own some property. Home for the Jewish Aged
v. Kotzker, 179 Pa.Super. 521, 118 A.2d 271; Inhabitants of Town of Bethel v. Inhabitants of
Town of Hanover, 151 Me. 318, 118 A.2d 787; Alameda County v. Janssen, 16 Cal.2d 276,
106 P.2d 11, 130 A.L.R. 1141. It seems obvious that Mr. Grunstad did not have the financial
resources to cover even a quarter of the hospital bill.
[Headnote 7]
Appellant relies on Lander County v. Humboldt County, 21 Nev. 415, 32 P. 849. The
statute under which that case was decided permitted recovery only when the aid was given to
a non-resident pauper. The present statute has been expanded and a county giving aid to a
non-resident pauper, a poor or indigent person, or an old or diseased person may recover from
the county of that person's residence. Therefore, this early Nevada case is not binding
authority.
Two rulings of the trial court on the admissibility of evidence are cited as reversible. We
do not so find them and consider any enlarged discussion unnecessary.
Thompson, J., and Zenoff, D. J., concur.
____________
81 Nev. 361, 361 (1965) Davenport v. State Farm Mutual
RALPH O. DAVENPORT AND ESTHER DAVENPORT, Appellants, v. STATE FARM
MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, AND THOMAS
HANLEY, and RUTH HANLEY, Respondents.
No. 4880
July 2, 1965 404 P.2d 10
Judge.
Action by assureds' automobile liability insurer against tort-feasor to test validity of
subrogation clause in policy. The lower court found that payment of medical expenses to the
assureds was a subrogable item and ruled in favor of the insurer, and the tort-feasor
appealed. The Supreme Court, Thompson, J., held that where policy subrogated the
insurer to the extent of the medical payment made by it to the assured to the proceeds of
any settlement with tort-feasor, the tort-feasor or his insurer could not disregard that
known subrogation or lien right in settling his collision liability, and the medical expense
payment made to assureds was a subrogable item.
in favor of the insurer, and the tort-feasor appealed. The Supreme Court, Thompson, J., held
that where policy subrogated the insurer to the extent of the medical payment made by it to
the assured to the proceeds of any settlement with tort-feasor, the tort-feasor or his insurer
could not disregard that known subrogation or lien right in settling his collision liability, and
the medical expense payment made to assureds was a subrogable item.
Judgment affirmed.
[Rehearing denied July 21, 1965]
Collins, D. J., dissented.
Morse & Graves, of Las Vegas, for Appellants.
Singleton and DeLanoy and J. Forest Cahlan and Rex A. Jemison, of Las Vegas, for
Respondents.
1. Abatement and Revival; Assignments.
A right of action for personal injuries at common law was not assignable, nor did it survive the death of
either injured person or tort-feasor.
2. Common Law.
The common law is the rule of decision in state courts unless in conflict with constitution or statutory
law. NRS 1.030.
3. Insurance.
Assured's right to recover their medical expenses from tort-feasor was incidental to their right of action
for personal injuries and could not be severed therefrom and transferred to another by assignment,
subrogation, or otherwise.
4. Assignments.
Assignability of right to sue in tort for personal injuries is governed by test of survivorship, that is, if right
of action survives death of insured person, that right is assignable.
5. Assignments; Subrogation.
By statute, an assignment of the proceeds of a personal settlement is permissible, and such proceeds may
also be subject of contractual subrogation. NRS 41.100, subd. 1.
6. Insurance.
Where automobile policy subrogated insurer to extent of medical payments made by it to the assured to
the proceeds from any settlement with tort-feasor, tort-feasor or his insurer could not disregard that known
subrogation or lien right in settling his collision liability to assureds, and the medical expense payment
made to assureds by their insurer was a subrogable item.
payment made to assureds by their insurer was a subrogable item. NRS 41.100, subd. 1.
OPINION
This case was presented to the lower court on stipulated facts and is designed to test the
validity of a clause in an automobile insurance policy which subrogates the company to the
extent of the medical payments made by it to the assured, to the proceeds of any settlement
or judgment that may result from the exercise of any rights of recovery which the injured
person or anyone receiving such payment may have against any person or organization * * *.
The plaintiff below was State Farm Mutual Automobile Insurance Company who had paid
the sum of $1,565.78 to its injured assureds Mr. and Mrs. Hanley, as required by the medical
payment proviso of the automobile policy sold by State Farm to the Hanleys. The main
defendant below was Ralph O. Davenport who had been involved in a car accident with the
Hanleys, causing them personal injuries. It was agreed that the negligence of Davenport was
the sole proximate cause of the car accident. The claim of the Hanleys against Davenport was
settled for the sum of $8,000. Before settlement State Farm wrote Allstate Insurance
Company (Davenport's insurance carrier), the following letter: We are writing to you with
reference to the above accident in which Thomas and Ruth Hanley carry an insurance policy
with State Farm Fire and Casualty Company, including medical payments coverage with
limits of $1,000. Please be advised that this policy contains a subrogation clause with
reference to the medical payment coverage and and we hereby place your company on notice
of our subrogation claim so that this may be taken into consideration at such time as you are
able to conclude a personal injury settlement with Mr. and Mrs. Hanley.
1
Davenport and his
insurance carrier Allstate ignored this letter in settling the Hanley's claim, thus
precipitating the instant litigation.
____________________

1
State Farm's limit of liability under the medical pay proviso was $1.000 for each person. It paid $983.40 for
Mr. Hanley and $582.38 for Mrs. Hanleytotal, $1,565.78.
letter in settling the Hanley's claim, thus precipitating the instant litigation. The lower court
found that the payment of medical expense was a subrogable item and ruled in favor of State
Farm. This appeal followed. We affirm.
[Headnotes 1-3]
At common law a right of action for personal injuries was not assignable, nor did it
survive the death of either the injured person or the tortfeasor. Prosser, Torts, 2d Ed., pp.
706-709; cases collected Annot., 40 A.L.R.2d 501. Of course the common law is the rule of
decision in our courts unless in conflict with the state (or federal) constitution or statutory
law. NRS 1.030. The appellant argues that the common law rule is violated if the policy
provision before us is given effect. The assureds' right to recover their medical expenses from
the tortfeasor is incidental to their right of action for personal injuries and may not be severed
therefrom and transferred to another by assignment, subrogation, or otherwise. On the other
hand, the respondent State Farm urges that the appellant misconceives the true issue.
According to the respondent, the issue is not whether a claim for personal injuries is divisible
and assignable, for the assureds' right of action was not assigned. Instead the issue is whether
an equitable lien may validly attach to the proceeds of a personal injury settlement, an entirely
different matter. State Farm contends that the policy provision effectively created an equitable
lien upon the proceeds of the settlement which is enforcible against a tortfeasor who settles in
disregard of the known lien. In re Behm's Estate, 117 Utah 151, 213 P.2d 657, 662; Reddy v.
Zurich General Accident & Liability Co., 171 Misc. 69, 11 N.Y.S.2d 88; Richard v. National
Transp. Co., 158 Misc. 324, 285 N.Y.S. 870; cases collected Annot., 40 A.L.R.2d at 512;
comment 4 Utah L.Rev. 539.
[Headnotes 4, 5]
For the purposes of this opinion we need not discuss the differences between an
assignment of the proceeds of the settlement of a disputed personal injury claim, and the
creation of an equitable lien upon the proceeds of settlement.
the differences between an assignment of the proceeds of the settlement of a disputed
personal injury claim, and the creation of an equitable lien upon the proceeds of settlement.
Restatement, Restitution 162, comment (h). Nor need we concern ourselves with the
distinction between the assignment of the right to sue for personal injuries, and the
assignment of the proceeds of the settlement of a disputed personal injury claim. We say this
because it is now quite generally accepted that the assignability of the right to sue in tort for
personal injuries is governed by the test of survivorshipi.e., if the right of action survives
the death of the injured person, that right is assignable. Prosser, Torts, 2d Ed., p. 709; 40
A.L.R.2d at 508; 15 U. of Pitt.L.Rev. 123; 41 Va. L.Rev. 687; 27 N.Dak.L.Rev. 208; 18
Minn.L.Rev. 585; 22 Calif.L.Rev. 456; 34 Colum.L.Rev. 161. The right to sue in tort for
personal injuries does survive in Nevada, NRS 41.100 (1),
2
and therefore is assignable. A
fortiori, an assignment of the proceeds of a personal injury settlement is permissible, and such
proceeds may also be the subject of contractual subrogation. The California case of Fifield
Manor v. Finsten, 54 Cal.2d 632, 354 P.2d 1073, heavily relied upon by appellant, is
inapposite, for the California survival statute expressly prohibited assignability. Our Statute
does not.
[Headnote 6]
In this case we do not know whether the Hanley were paid twice for their medical
expenses.3 Their $S,000 settlement with Davenport and his insurance carrier was on a
lump sum basis without apportionment to specific items of damage.
____________________

2
NRS 41.100(1) reads: Causes of action, whether suit has been brought upon the same or not, in favor of the
injured party for personal injuries other than those resulting in death, whether such injuries be to the health or to
the reputation or to the person of the injured party, shall not abate by reason of his death nor by reason of the
death of the person against whom such cause of action shall have accrued; but in the case of the death of either
or both, such cause of action shall survive to and in favor of the heirs and legal representatives of such injured
party and against the person, receiver or corporation liable for such injuries, and his or its legal representatives;
and so surviving such cause of action may be hereafter prosecuted in like manner and with like legal effect as
would a cause of action for injuries to or destruction of personal property.
paid twice for their medical expenses.
3
Their $8,000 settlement with Davenport and his
insurance carrier was on a lump sum basis without apportionment to specific items of
damage. When settlement was made the tortfeasor and his carrier were on notice that the
claimants' medical expenses had already been paid by State Farm. Perhaps the negotiated
settlement was reduced because of this fact. On the other hand, if the $8,000 payment was
meant to include the claimants' medical expenses, two drafts should have been issuedone
for those expenses payable to the Hanleys and State Farm jointlyand the other for the
balance payable to the Hanleys alone. However, our lack of knowledge in this respect is not
significant, for one fact is established. Settlement was made without regard to the known
subrogation (or lien) right of State Farm. We hold that, where the medical payment clause of
an automobile insurance policy subrogates the company to the extent of the medical payments
made by it to the assured to the proceeds of any settlement that may result from the exercise
of any rights of recovery which the injured person receiving such payment may have against
any person, the tortfeasor (or his insurance carrier) may not disregard that known
subrogation (or lien) right in settling his liability.
Affirmed.
Badt, J., concurs.
Collins, D. J., dissenting:
I dissent.
My learned brethren, speaking for the majority of the Court, state the issue in this case to
be "* * * whether an equitable lien may validly attach to an assignment of the proceeds
of a personal injury settlement * * *" I believe there is an antecedent issue which must
be disposed of first which will be determinative of the case, at least until a retrial is had.
____________________

3
Of course the point involved on this appeal is related to the double recovery problem discussed in the
Annot. at 13 A.L.R.2d 355. The principle there announced that the damages recoverable for a wrong are not
diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance
effected by him and to the procurement of which the wrongdoer did not contribute concerns the right of the
assured to recover his medical expenses from his insurance carrier under the medical pay clause, and again from
the tortfeasor. Those cases do not appear to involve a medical pay clause granting subrogation to the insurance
company.
Court, state the issue in this case to be * * * whether an equitable lien may validly attach to
an assignment of the proceeds of a personal injury settlement * * * I believe there is an
antecedent issue which must be disposed of first which will be determinative of the case, at
least until a retrial is had.
The trial of this matter before the district court was upon an agreed statement of fact.
Those facts are substantially set forth in the majority opinion and need not be repeated here,
with two exceptions. The policy of insurance between the Hanleys and their insurer, State
Farm Mutual Automobile Insurance Company, contained the following clauses:
Subrogation. Under payment under this policy, except under Coverage C,' the company
shall be subrogated to all the insured's rights of recovery therefor and the insured shall do
whatever is necessary to secure such rights and do nothing to prejudice them.
Upon payment under Coverage C' of this policy, the company shall be subrogated to the
extent of such payment to the proceeds of any settlement or judgment that may result from the
exercise of any rights of recovery which the insured person or anyone receiving such payment
may have against any person or organization and such person shall execute and deliver
instruments and papers and do whatever else is necessary to secure such rights. Such person
shall do nothing after loss to prejudice such rights.
1

Second, appellants Davenport, through their insurer, Allstate Insurance Company, paid to
respondents Hanley, Eight Thousand Dollars ($8,000.00) and took a general release from
them. A copy of the release was in evidence before the trial court and in substance released
the Davenports from any and all claims, demand, damages, costs, expenses, loss of services
or causes of action arising from any act or occurrence on account of any personal injury,
disability, or damage of any kind that they may sustain as a result of the accident on
November 21, 1961.
____________________

1
Coverage C of the policy included sums paid for medical expense.
An equitable lien must be based on established principle of equity * * * the doctrine of
equitable lien is not a limitless remedy to be applied according to the measure of the
conscience of the particular chancellor, and does not contemplate expediency as distinguished
from legal rights. (53 C.J.S., Liens 4(a), at 837 and 838)
Ordinarily, damages may not be awarded by the chancery court. It is the function of the
law courts to award damages for breach of contract or for tort; and if the purpose of the
proceeding is merely the recovery of a sum of money, there can be no reason for resorting to
equity, since the remedy at law is complete. (19 Am.Jur., Equity 119, 120 and 121)
Indeed, it is said that the absence of a plain and adequate remedy at law is the only test of
equity jurisdiction. (19 Am.Jur., Equity 100, at 107)
What then do we have in this case? Clearly, State Farm has a cause of action at law against
their own insured, the Hanleys, to recover the amount paid them for medical expenses
incurred as a result of the accident. Their contract of insurance provides that the insured
shall do nothing after loss to prejudice such rights. Hanleys did exactly what they promised
and contracted not to do. They executed a release to the Davenports in apparent total
disregard of their obligation to their own insurer, thereby precipitating this litigation.
I do not feel that the trial court, nor this court should open its doors to the respondent,
State Farm, under these circumstances. It appears to me to be encouraging contracting parties
to breach their agreement, and in fact reward them for an apparent breach, if this appeal is
entertained. Especially is this so when equitable relief by way of lien is sought not based on
or arising out of any contract between appellants, the Davenports, and respondents, State
Farm Insurance Company.
To be entitled to equity, a litigant must be willing to do equity. And it appears most
equitable to me to remand this action to the trial court for a new trial, requiring State Farm to
seek relief at law first against the Hanleys under their contract, before considering equitable
remedies.
remedies. This Court has that power under NRCP 72 (a) whether a new trial is sought or not.
I would remand for a new trial.
____________
81 Nev. 369, 369 (1965) State v. Warmington
THE STATE OF NEVADA, Appellant, v.
MARALYN WARMINGTON, Respondent.
No. 4802
July 6, 1965 403 P.2d 849
Judge.
Defendant was charged in the trial court with murder. She was acquitted by jury and state
appealed. The Supreme Court, Thompson, J., held that statute allowing state to appeal
questions of law in criminal cases when such questions have become moot by virtue of
acquittal of defendant is constitutionally impermissible as enlargement of Supreme Court's
appellate jurisdiction beyond constitutional grant of power.
Appeal dismissed.
Harvey Dickerson, Attorney General, of Carson City, Nevada; Edward G. Marshall, Clark
County District Attorney, and James M. Bartley, Deputy District Attorney, of Las Vegas, for
Appellant.
Harry E. Claiborne, and Thomas J. O'Donnell, of Las Vegas, for Respondent.
1. Criminal Law.
A case within constitutional provision investing Supreme Court with appellate jurisdiction on questions
of law alone in all criminal cases in which offense charged is within original jurisdiction of district court no
longer exists once accused has been charged with commission of public offense, tried and acquitted.
Const. art. 6, 4.
2. Criminal Law.
Criminal case is ended when accused has been acquitted following trial. Const. art. 1, 8;
U.S.C.A.Const. Amend. 5.
3. Criminal Law.
Appellate jurisdiction of Supreme Court in criminal cases does not authorize resolution of mere moot
questions.
4. Criminal Law.
Statute allowing state to appeal questions of law in criminal cases when such questions have become
moot by virtue of acquittal of defendant is constitutionally impermissible as enlargement of Supreme
Court's appellate jurisdiction beyond constitutional grant of power. NRS 177.065; Const.art. 1. 8; art.
6, 4.
OPINION
Maralyn Warmington was charged with the murder of her husband, tried, and acquitted by
the jury. This appeal by the state followed. The main issue is the constitutionality of NRS
177.065 which allows the state to appeal questions of law in criminal cases when such
questions have become moot by virtue of acquittal of the defendant.
1
The state contends
that the statute is constitutionally permissible, and asks that we review certain trial court
rulings excluding purported confessions of the accused and other claimed trial errors. The
respondent urges that the statute is constitutionally infirm, for it enlarges the jurisdiction of
this court beyond the grant of power contained in Nev. Const. Art. 6, 4.
The statute in question became law in 1957. Stats. Nev. 1957, p. 60. Its enactment was
prompted by the opinion of this court in State v. Corinblit, 72 Nev. 202, 298 P.2d 470. That
case involved an appeal by the state under NCL 11084 (now NRS 177.060), which permits an
appeal from a final judgment of the district court in all criminal cases. Many of the
difficulties inherent in an appeal by the state, under the statute there involved, were succinctly
expressed by Mr. Justice Badt in his dissenting opinion and, no doubt, gave birth to NRS
177.065 which is now before us for consideration. The present case is the second in which the
state has asserted its NRS 177.065 right to appeal, following a verdict of acquittal. The first
case was State v. Nystedt, 79 Nev. 24
____________________

1
We are not here dealing with the statute which gives to the state a right to review upon a matter preliminary
to trial and before jeopardy attaches, as where a demurrer is sustained. NRS 177.060. No constitutional issue is
involved in that instance.
Nystedt, 79 Nev. 24, 377 P.2d 929. There we entertained the appeal, and decided moot
questions. However, the constitutionality of NRS 177.065 was not raised. The constitutional
point is raised now, and we turn to resolve it.
[Headnotes 1-4]
Nev. Const. Art. 6, 4, invests this court with appellate jurisdiction on questions of law
alone in all criminal cases in which the offense charged is within the original jurisdiction of
the district courts. For the purposes of this appeal, the important words of the quoted
constitutional provision are in all criminal cases. A case within the intendment of that
provision no longer exists once an accused has been charged with the commission of a public
offense, tried, and acquitted. State v. Kelsey, (N.D.), 190 N.W. 817; State v. Gates, (Ohio), 25
N.E.2d 471. No actual controversy concerning the subject matter or the defendant remains.
The legislature has declared that an appeal taken by the state shall not stay or affect the
operation of a judgment in favor of the defendant. NRS 177.130. Constitutional provisions
forbidding double jeopardy (Nev. Const. Art. 1, 8; U.S. Const. Amend. V) make it certain
that a criminal case is ended when an accused has been acquitted following trial. Kepner v.
United States, 195 U.S. 100. See also 36 Yale L. Journal 486 criticizing this view. Indeed, the
avowed purpose of NRS 177.065 authorizing this appeal is to obtain our views upon moot
questions of law, presumably to establish a guide for trial courts in future cases. Our appellate
jurisdiction in criminal cases does not embrace the resolution of mere moot questions. We
hold, therefore, that the legislative attempt to have this court decide moot questions of law in
a criminal case following acquittal is constitutionally impermissible as an enlargement of our
appellate jurisdiction beyond the constitutional grant of power.
Appeal dismissed.
Badt, J., and Brown, D. J., concur.
____________
81 Nev. 372, 372 (1965) Garnick v. Miller
BILLIE J. GARNICK, Petitioner, v. FRANCIS E. MILLER, Chief Parole and Probation
Officer, Department of Parole and Probation, and WILLARD WEAVER, Assistant Parole
and Probation Officer, Carson City, Nevada, Respondents.
No. 4869
July 7, 1965 403 P.2d 850
Original proceedings in habeas corpus.
The Supreme Court, Thompson, J., held that defendant, who had changed her plea to
guilty of a bad check charge after a conference with the judge and others in chambers,
without representation by her previously employed attorney of record, whom she had been
unable to contact by phone or letter, was denied her constitutional right to assistance by
counsel, in the absence of the required admonition by the court of her right to counsel, in
view of the fact that an intelligent waiver of her right to counsel did not occur, and despite the
fact that she received a probationary sentence.
Writ granted.
Marshall A. Bouvier, and Stanley H. Brown, of Reno, for Petitioner.
Harvey Dickerson, Attorney General; C. B. Tapscott, Deputy Attorney General; John W.
Diehl, Deputy District Attorney, for Respondents.
1. Criminal Law.
One on probation remains in legal custody of state and under control of its agents; to that extent, such
person is restrained of his liberty. NRS 213.1095-213.1097.
2. Habeas Corpus.
Writ of habeas corpus may be utilized to test legality of restraint of one on probation. U.S.C.A.Const.
Amends. 6, 14.
3. Criminal Law.
Constitutional right to assistance by counsel extends to any critical stage of proceeding, including
arraignment. U.S.C.A.Const. Amends. 6, 14.
4. Criminal Law.
Defendant, who had changed plea to guilty of bad check charge after conference with judge and others in
chambers, without representation by previously employed attorney of record, whom she had been unable to
contact by phone or letter, was denied constitutional right to assistance by counsel, in absence of
required admonition by court of her right to counsel, and despite fact that she
received probationary sentence.
absence of required admonition by court of her right to counsel, and despite fact that she received
probationary sentence. U.S.C.A.Const. Amends. 6, 14; NRS 34.360.
5. Habeas Corpus.
Sparse court record could not be supplemented by affidavits which were given by participants in informal
conference in judge's chambers, to aid court on review in deciding question of waiver of right to counsel.
6. Habeas Corpus.
Waiver of right to counsel must appear from court record.
OPINION
By an original habeas corpus application to this court Billie Garnick seeks her freedom,
claiming that she was unconstitutionally denied the assistance of counsel when she entered a
plea of guilty to the felony of passing a bad check. This claim and the preliminary question of
the availability of habeas corpus to one on probation are the issues we must decide. We hold
for the petitioner in each instance, and grant the writ.
Mrs. Garnick waived a preliminary hearing. When arraigned in the district court on June 2,
1964, she was represented by counsel of her choice and pleaded not guilty. Trial was
scheduled to commence December 8, 1964. Seven days before trial Mrs. Garnick appeared in
court without her attorney, requested permission to withdraw her not guilty plea, which
request was granted, and proceeded to enter a plea of guilty. The change of plea had been
preceded by an informal conference in the judge's chambers at which the judge, the
prosecuting attorney, a service station operator, and Mrs. Garnick, were the participants. Of
course, the in-chambers conference was not reported. The record of it is in the form of
affidavits later supplied by the participants. Their recollections do not coincide as to some of
the statements and representations that were supposed to have been made. We find it
unnecessary to relate the factual discrepancies, because of two overriding circumstances.
First, the in-chambers conference was held in the absence of Mrs. Garnick's counsel of
record.
record. Second, at that conference, Mrs. Garnick professed her innocence and this is not
denied. Indeed, the affidavit of the judge contains the following statement in referring to the
affidavit of Mrs. Garnick: She states that several times she was not guilty of the charge. It is
my recollection that this was only done once. In spite of these circumstances, upon
adjournment of the in-chambers conference, court was convened and Mrs. Garnick, without
her counsel, was permitted to change her plea to guilty. Sentencing was deferred to December
15, 1964, to allow time for a pre-sentence investigation and report. Her attorney learned of
what had transpired and promptly moved to set aside her guilty plea and reinstate the plea of
not guilty. This motion was heard by a different judge, and denied. It was his view that Mrs.
Garnick had intelligently waived her right to be represented by counsel when she appeared in
court to change her plea from not guilty to guilty. Sentence was imposed, execution thereof
suspended, and the defendant Garnick was granted probation. This application for habeas
relief followed.
[Headnotes 1, 2]
(1) We have not before decided whether habeas corpus is available to one on probation.
NRS 34.360 reads: Every person unlawfully committed, detained, confined or restrained of
his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into
the cause of such imprisonment or restraint. By the explicit language of the statute, neither
confinement nor imprisonment is a requisite for habeas reliefunlawful restraint is enough.
The statute is of sufficient latitude to embrace one on probation, Noble v. Siwicki, (R.I.), 197
A.2d 298; Ex parte Bosso, (Fla.), 41 So.2d 322, and is in harmony with the expression of the
United States Supreme Court in Jones v. Cunningham, 371 U.S. 236: History, usage, and
precedent can leave no doubt that, besides physical imprisonment, there are other restraints
on a man's liberty, restraints not shared by the public generally, which have been thought
sufficient in the English-speaking world to support the issuance of habeas corpus. Of course
Jones v. Cunningham was concerned with whether one on parole was "in custody" within
the meaning of 2S U.S.C. 2241.
was concerned with whether one on parole was in custody within the meaning of 28 U.S.C.
2241. The Court held that a parolee was in custody and that federal habeas relief was
available to him. Its reasons are equally applicable to one on probation. See also Annot., 92
A.L.R.2d 682, Parolee's right to habeas corpus. This court has characterized parole as a
penological measure for the disciplinary treatment of prisoners who seem capable of
rehabilitation outside of prison walls. It does not set aside or affect the sentence; the convict
remains in the legal custody of the state and under the control of its agents, subject at any
time, for breach of condition, to be returned to the penal institution. Pinana v. State, 76 Nev.
274, 352 P.2d 824. Most of that language also has application to a probationer. One on
probation remains in the legal custody of the state and under the control of its agents. To that
extent, such a person is restrained of his liberty. Indeed, in this state probationers and parolees
are supervised by the same staff. NRS 213.1095-213.1097. We hold that the writ of habeas
corpus may be utilized to test the legality of the restraint of one on probation.
[Headnote 3]
(2) Gideon v. Wainwright, 372 U.S. 335, held that the Fourteenth Amendment to the
Federal Constitution makes the Sixth Amendment guarantee of right to counsel obligatory
upon the states. This right extends to any critical stage of the proceeding. Significant
differences in the criminal procedures of the respective states may cast doubt upon the right to
counsel before an accused is arraigned in the court where he is to stand trial. This was made
clear by the United States Supreme Court in Pointer v. Texas, 380 U.S. 400. See also our
opinions in Victoria v. Young, 80 Nev. 279, 392 P.2d 509; and Ex parte Hoff, 80 Nev. 360,
393 P.2d 619. However, there is no doubt but that a defendant's arraignment in the trial court
is a critical stage of the proceeding. Hamilton v. Alabama, 368 U.S. 52. The right to counsel
at that point must be zealously guarded.
[Headnote 4]
Here, Mrs. Garnick was represented by counsel and denied guilt. The court and prosecutor
each knew that she had an attorney. The in-chambers conference and the subsequent court
proceedings should not have occurred in his absence. We do not question the motives or
integrity of the judge or the prosecutor, but heartily condemn their impropriety. It is suggested
that the defendant's rights were fully protected throughout; that she requested the informal
conference; and that she waived her constitutional right to counsel. The suggestion is without
support in this record. The standards for testing the matter of waiver are explicitly stated in
Von Moltke v. Gillies, 332 U.S. 708, 723-724: We have said: The constitutional right of an
accused to be represented by counsel invokes, of itself, the protection of a trial court, in
which the accusedwhose life or liberty is at stakeis without counsel. This protecting duty
imposes the serious and weighty responsibility upon the trial judge of determining whether
there is an intelligent and competent waiver by the accused.' To discharge this duty properly
in light of the strong presumption against waiver of the constitutional right to counsel, a judge
must investigate as long and as thoroughly as the circumstances of the case before him
demand. The fact that an accused may tell him that he is informed of his right to counsel and
desires to waive this right does not automatically end the judge's responsibility. To be valid
such waiver must be made with an apprehension of the nature of the charges, the statutory
offenses included within them, the range of allowable punishments thereunder, possible
defenses to the charges and circumstances in mitigation thereof, and all other facts essential
to a broad understanding of the whole matter. A judge can make certain that an accused's
professed waiver of counsel is understandingly and wisely made only from a penetrating and
comprehensive examination of all the circumstances under which such a plea is tendered.
The colloquy between the court and Mrs. Garnick is set out in the footnote.1 An
intelligent waiver of her right to counsel did not occur.
set out in the footnote.
1
An intelligent waiver of her right to counsel did not occur. The
mechanical, routine questions of the court, the defendant's responsesthe total failure of the
court to discharge its duty as delineated by the Von Moltke decisioncompel the conclusion
that the defendant's constitutional right to counsel was ignored.
[Headnotes 5, 6]
It is suggested that the sparse court record quoted in the footnote may be supplemented by
the affidavits which were given by the participants in the preceding informal conference, to
aid us in deciding the question of waiver. We reject this suggestion. A waiver must appear
from the court record. State ex rel. Burnett v. Burke, 22 Wis.2d 486, 126 N.W.2d 91;
Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439.
The judgment of conviction is set aside, and the requested Writ of Habeas Corpus is
granted.
Badt, J., concurs.
____________________

1
COURT: What did you want to present to the Court at this time?
MRS. GARNICK: I have come to change my plea and I have been been unable to reach my counselor by
phone or by mail so I have come unrepresented.
COURT: You have made attempts to get in touch with Mr. Bouvier?
MRS. GARNICK: Yes, I have, both by phone and by letter.
COURT: And you want to change your plea?
MRS. GARNICK: Yes, sir.
COURT: And you understand that in changing your plea you may be subjecting yourself to a term of
imprisonment on this charge?
COURT: You are fully prepared to take this step without the presence of your attorney?
COURT: Do you have any objection to the defendant changing her plea, Mr. Davis?
MR. DAVIS: No objection, Your Honor.
COURT: Very well, then. Permission is granted for a change of plea. How do you plead to the offense
charged in the Indictment?
MRS. GARNICK: I plead guilty.
COURT: The record will show the defendant pleads she is guilty of the offense charged in the Indictment,
namely, making a check with insufficient money or credit in the drawee bank with which to pay the same,
constituting a felony. You may be seated.
Zenoff, D. J., concurring:
The record of this case compels me to concur reluctantly with the majority but only for the
bare fact that the defendant did state in one instance at the conference that she was innocent
of the charges. In all other respects Judge Gregory followed long established custom in
disposing of the criminal matter without trial at the request of the defendant.
True it is that it was without the presence of her attorney. But she represented repeatedly to
the assembled group, which included the district attorney and her family friend (who with the
defendant's husband initiated the conference), that she hadn't seen or heard from her attorney
for many months, and this representation was made when the judge at the outset sought to
telephone the defendant's counsel. Relying upon this, the judge clearly outlined the
proceedings and indicated that (paraphrasing) she would very likely be granted probation.
That the judge and defendant were friends of long standing is apparent. Her main concern
was publicity that might jeopardize her job availability, but nowhere does it appear that
anyone present at the conference represented that there would be no publicity attending her
guilty plea. It was only after the plea of guilty, and radio publicity followed, that she regretted
her action. She then sought her lawyer who moved to set aside the guilty plea.
Defendant's affidavit supporting the motion was replete with self help and liberality with
the truth. As one example, she asserted that she had not stated she was unable to reach her
attorney, in fact, had seen him daily for a year. If true, she must have kept him pretty busy.
She further stated in the conference in chambers that she had constantly denied her guilt, this
in direct contradiction to the statements of all of the others present who agreed that she did so
state but only one time.
It is clear that no one compelled her to meet with the judge in chambers, she never denied
the very active instigation of her husband which created the conference, she met the family
friend and district attorney for coffee and then likewise freely and voluntarily walked with
them from a restaurant to the judge's chambers, and just as clearly could have left at any
time had she so desired.
coffee and then likewise freely and voluntarily walked with them from a restaurant to the
judge's chambers, and just as clearly could have left at any time had she so desired. What took
place in the courtroom merely was the procedure pre-arranged more fully in the court's
chambers.
From the opposing affidavits, it can truly be concluded that no false inducements were
made, nor undue influence exercised, to compel her change of plea from not guilty to guilty.
However, it being conceded that she denied her guilt once, once was enough.
My concern is for the future, that trial judges will refuse to consider change of pleas in
chambers because of a natural apprehension of later accusations that negligent or false
conduct misled the person accused and caused him to change his plea, or that he did not get
what he was promised, or that he was threatened or coerced in the judge's chambers, and ad
infinitum. The only safe course would be a formal proceeding in open court, hardly conducive
to a pre-trial conference.
The trial courts of Nevada are already overburdened with criminal matters that by reason
of a statutory priority, are depriving civil litigants of their day in court. If the trial court cannot
safely accept change of plea opportunities the number of costly time consuming criminal
trials will be multiplied immeasurably.
My concern is directed at the crass audacity of the defendant who took advantage of a
situation created by her own conduct and that of her husband, and now points an accusing
finger at the judge who gave her the probation which she obviously sought and bargained for.
81 Nev. 380, 380 (1965) Scott v. State
LEON SCOTT, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 4861
July 8, 1965 404 P.2d 3
Appeal from judgment of the Eighth Judicial District Court, Clark County; Jon R. Collins,
Judge.
Pleading for a writ of habeas corpus filed on ground that no probable cause was shown at
preliminary examination to hold petitioner. The lower court denied relief, and the petitioner
appealed. The Supreme Court, Thompson, J., held that writ had to be granted where there was
no record of preliminary examination for review, as no legal cause was shown for
continuance of restraint.
Reversed, and Writ of Habeas Corpus granted.
Babcock & Sutton and R. Ian Ross, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General; Edward G. Marshall, District Attorney; James M.
Bartley, Deputy District Attorney; and Leonard Gang, Deputy District Attorney, of Las
Vegas, for Respondent.
1. Habeas Corpus.
Inherent in statutory provisions for habeas corpus relief following preliminary examination is underlying
assumption that record of examination will be made so that question of probable cause may be reviewed by
court in which petition is filed. NRS 34.500, subd. 7, 171.405, subds. 4, 9.
2. Habeas Corpus.
Availability of writ of habeas corpus to accused to challenge showing of probable cause made at
preliminary hearing does not depend upon district attorney's approval of employment of court reporter at
hearing, notwithstanding statute providing that magistrate may employ reporter upon approval of district
attorney. NRS 34.500, subd. 7, 52.070, subd. 15, 171.405, subds. 4, 9.
3. Habeas Corpus.
Petition for habeas corpus filed under statute on ground that no probable cause to hold accused was
shown at preliminary hearing must be granted if there is no record of preliminary examination for review
by court in which petition is filed as in such case no legal cause is shown for continuance of restraint.
81 Nev. 380, 381 (1965) Scott v. State
restraint. NRS 34.380, subd. 3, 34.500, subd. 7, 52.070. subd. 15, 171.405, subds. 4, 9.
OPINION
As authorized by NRS 34.380 (3) Scott appeals from an order of the district court denying
his petition for habeas corpus. He was charged with the possession of narcotics, and claims
that probable cause to hold him for trial in the district court was not established at his
preliminary hearing in the Justice Court. He was not represented by counsel at that hearing.
We do not know whether a sufficient showing was made because the district attorney refused
to approve the employment of a reporter to transcribe the testimony, though the magistrate
preferred to have the hearing reported. There is no record. The state now contends, as it did
below, that we must apply the presumption of regularity (NRS 52.070 (15)) and deny habeas
relief. After all, argues the prosecutor, the want of probable cause cannot be found in the
absence of a record showing it. We do not think that the appeal is so easily resolved.
The difficulty here presented is created by certain statutory provisions which appear to be
at war. NRS 171.405(4) on which the prosecutor relies, provides: The magistrate, if he deem
it necessary for the best interests of justice, and upon the approval of the district attorney, is
authorized to employ a reporter to take down all the testimony and the proceedings on the
hearing or examination, and within such time as the court may designate have the same
transcribed into typewritten transcript. Adopting the view that the quoted language invests
him with final authority, the prosecutor in Clark County has proclaimed his policy not to
approve the employment of a reporter if the accused is not represented by counsel at a
preliminary hearing. Of course, if NRS 171.405(4) grants the district attorney that kind of
power, the legislative purpose expressed in NRS 34.500 {7) to make the writ of habeas
corpus available to one who "has been committed on a criminal charge without
reasonable or probable cause" is totally frustrated.
81 Nev. 380, 382 (1965) Scott v. State
expressed in NRS 34.500 (7) to make the writ of habeas corpus available to one who has
been committed on a criminal charge without reasonable or probable cause is totally
frustrated.
[Headnotes 1, 2]
The remedy of habeas corpus to test probable cause has frequently been utilized. State v.
Fuchs, 78 Nev. 63, 368 P.2d 869; Ervin v. Leypoldt, 76 Nev. 297, 352 P.2d 718; Raggio v.
Bryan, 76 Nev. 1, 348 P.2d 156; Ex parte Liotard, 47 Nev. 169, 217 P. 960; In re Kelly, 28
Nev. 491, 83 P. 223. In addition to the explicit authorization of NRS 34.500 (7) we note that
NRS 171.405(9) contemplates that an accused may seek habeas relief following a preliminary
examination, for it provides: Testimony reduced to writing and authenticated according to
the provisions of this section must be filed by the examining magistrate with the clerk of the
district court of his county, and in case the prisoner is subsequently examined upon a writ of
habeas corpus, such testimony must be considered as given before such judge or court.
Inherent in the legislative provision for habeas relief (NRS 34.500 (7) and NRS 171.405(9))
is the underlying assumption that a record of the preliminary examination will be made in
order that the question of probable cause may be reviewed by the court in which the petition
for habeas corpus is filed. The availability of this writ cannot, and does not, depend upon the
district attorney's approval of the employment of a court reporter. The rights of one accused
of crime are protected by the Constitutions of our Nation and State and do not rest upon the
whim of the public prosecutor. We abhor the thought that one could be compelled to stand
trial without a preliminary showing of probable cause simply because the prosecutor refused
to allow a record to be made of the preliminary examination.
Apart from the language of NRS 171.405(4) providing for the district attorney's approval
that a record be made, the state suggests that the petitioner may not complain about the lack
of a record, for he did not request one to be made. The answer to this contention is that,
without a record we cannot ascertain whether such a request was made.
81 Nev. 380, 383 (1965) Scott v. State
is that, without a record we cannot ascertain whether such a request was made. However, we
think it appropriate briefly to discuss State v. Logan, 59 Nev. 24, 83 P.2d 1035, where it is
stated that a defendant must request a record of the preliminary examination before he can
complain on appeal from a judgment of conviction following trial. Of course, the Logan
expression is wholly irrelevant to the issue here presented. In Logan a trial record was before
this court for review, and disclosed substantial evidence to support the conviction. It is,
therefore, understandable why the appellate court believed that the defendant's objection to
the lack of a preliminary record came too late. Here we have nothing to review. A trial has
not occurred, and there is no record of the evidence offered at the preliminary examination.
The petitioner insists that probable cause to hold him for trial was not shown, and that he is
being unlawfully deprived of his liberty. He has invoked the statutory remedy. We think that
he is entitled to the relief requested.
[Headnote 3]
We hold that a defendant's petition for habeas corpus filed pursuant to NRS 34.500 (7)
must be granted, if there is no record of the preliminary examination for review by the court
in which the petition is filed. In such case no legal cause is shown for the continuation of the
petitioner's imprisonment or restraint, and the judge must discharge him. NRS 34.480.
1

____________________

1
NRS 34.480 reads: If no legal cause be shown for such imprisonment or restraint, or for the continuation
thereof, such judge shall discharge such party from the custody or restraint under which he is held.
____________
81 Nev. 384, 384 (1965) Poirier v. Board of Dental Examiners
M. M. POIRIER, Doing Business as PIONEER DENTAL LABORATORY, Appellant, v.
BOARD OF DENTAL EXAMINERS OF NEVADA, Consisting of Ross Whitehead, Morris
Gallagher, Howard Woodburn, Vincent Sanner, Stephen Comish, A. A. Cozzalio, and David
W. Melarkey, Respondents.
No. 4872
July 12, 1965 404 P.2d 1
Motion to dismiss appeal.
The defendant was found guilty in the District Court of contempt for injunction violation
and was sentenced to serve five days in county jail and fined $500, and he appealed from the
contempt order and passage of sentence. Motion to dismiss the appeal was filed. The
Supreme Court, Zenoff, D.J., held that criminal contempt order was appealable under
constitutional provision giving Supreme Court jurisdiction on questions of law alone in all
criminal cases in which offense charged is within original jurisdiction of district court and
under statute adopting the language of that constitutional provision.
Motion denied.
Bradley & Drendel, of Reno, for Appellant.
Goldwater, Taber and Hill, and Cooke & Roberts, of Reno, for Respondents.
1. Contempt.
Trial court has right to punish for disobedience to its lawful mandate. NRS 199.340, subd. 4.
2. Contempt.
Criminal contempt order of district court was appealable to Supreme Court under constitutional provision
giving Supreme Court jurisdiction on questions of law alone in all criminal cases in which offense charged
is within original jurisdiction of district court and under statute adopting the language of that constitutional
provision; disavowing Gottwals v. Manske, 60 Nev. 76, 99 P.2d 645, 100 P.2d 580; State of Nevada ex
rel. Smith v. Sixth Judicial District Court, 63 Nev. 249, 167 P.2d 64S; State v. Butner, 66 Nev.
127
648; State v. Butner, 66 Nev. 127, 206 P.2d 253, NRS 2.080, 199.340, subd. 4; Const. art. 6, 4.
OPINION
In Poirier v. Board of Dental Examiners, 78 Nev. 232, 370 P.2d 960, this court upheld the
validity of a permanent injunction enjoining H. M. Poirier from advertising that he can or will
perform certain acts which constituted the practice of dentistry. After a hearing duly noticed,
the district court found Poirier guilty of contempt for violations of the injunction, which were
committed after the determination by this court. He was sentenced to serve five days in the
Washoe County jail and fined $500.00.
Poirier appealed from the contempt order and the passage of sentence. For the purpose of
this decision it is only important now to know that the contempt involved was conceded to be
a criminal, rather than a civil, contempt.
Respondents moved to dismiss the appeal on the ground that this court lacks jurisdiction
of a direct appeal of an adjudication of criminal contempt. They cite as authority Phillips v.
Welch, 11 Nev. 187, an 1876 case which held that the Supreme Court of Nevada had no
appellate jurisdiction in cases of contempt where the proceeding was purely criminal.
At the time of the Welch opinion, Art. 6, 4, Nevada Const., and the corresponding
statute, provided that the Supreme Court * * * shall have appellate jurisdiction * * * in all
criminal cases in which the offense charged amounts to a felony.* * * Criminal contempt,
then and now, by statute is a misdemeanor.
In 1920, the quoted portion was amended to read that the Supreme Court shall have
jurisdiction on questions of law alone * * * in all criminal cases in which the offense
charged is within the original jurisdiction of the district courts. * * * It is discovered,
however, that for the period of 1920 to 1957 the statutes relating to the jurisdiction of
the Supreme Court were not amended to correspond to this constitutional alteration.
It is discovered, however, that for the period of 1920 to 1957 the statutes relating to the
jurisdiction of the Supreme Court were not amended to correspond to this constitutional
alteration.
Thus, the later Nevada cases of Gottwals v. Manske, 60 Nev. 76, 99 P.2d 645, 100 P.2d
580, and State of Nevada ex rel. Smith v. Sixth Judicial Dist. Court, 63 Nev. 249, 167 P.2d
648, cite Phillips v. Welch for the proposition that this court lacks appellate jurisdiction in
cases involving a criminal contempt because such jurisdiction is limited to case involving
felonies. It is to be noted, however, that while each of these cases sets forth this rule, such
holding was unrelated to the problem therein presented and to the decision in each of the
cases. The same is true of State v. Butner, 66 Nev. 127, 206 P.2d 253, wherein the rule set
forth in Phillips v. Welch is affirmed, although the Phillips case is not mentioned. The
holding in the Butner case is cited to substantiate the rule that this court's appellate
jurisdiction is limited to questions of law alone. Clearly such holding has no relation to the
problem presently before the court. An examination of the original records on appeal of the
above cited cases discloses that only in the Smith case was there an acknowledgment of the
present wording of Art. 6, 4, Nevada Const., but the reference there concerned only whether
the contempt was civil or criminal.
In 1957, our legislature enacted the Nevada Revised Statutes and included NRS 2.080
which adopted the language of Art. 6, 4, Nevada Const.
1

All of the many authorities (12 A.L.R.2d 1059) refer the questions of jurisdiction of an
appellate court to the statutes and constitution of each state. Considering our own constitution
and statutes, then, and the history heretofore recited, it appears clear that an enlargement of
the criminal jurisdiction of the Nevada Supreme Court was intended by the 1920 change.
____________________

1
The revisor's note recites that the words amounts to a felony have been replaced with is within the
original jurisdiction of the district courts and adds that the original wording of the section as enacted in 1865
followed the language then found in Nev. Art. 6, 4. However, this section of the constitution was amended in
1920 but the 1865 statute was not amended.
Court was intended by the 1920 change. Otherwise, there would have been no need for the
change since the entirety of Art. 6, Nevada Const., is encompassing and adequate in all other
respects.
[Headnotes 1, 2]
We expressly disavow contrary dictum in Gottwals v. Manske, supra, Smith v. Sixth
Judicial Dist. Court, supra, and State v. Butner, supra. The trial court unquestionably has the
right to punish for disobedience to its lawful mandate. (NRS 199.340 (4).) Although
application of NRS 199.340 (4) constitutes a misdemeanor, we hold that the criminal offense
charged, i.e., contempt, was within the original jurisdiction of the district court and that
appeal therefrom is not confined to criminal matters that constitute a felony.
Motion to dismiss appeal is denied.
Badt, J., and Wines, D. J., concur.
____________
81 Nev. 387, 387 (1965) Corsiglia v. Hammersmith
TERESA CORSIGLIA, ESQ., and ADON V. PANATTONI, ESQ.,
Appellants, v. WILLIAM L. HAMMERSMITH, ESQ., Respondent.
No. 4888
July 12, 1965 404 P.2d 8
Appeal from judgment of the Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Proceeding on petition by attorney for apportionment of fees for services performed during
probate. The lower court rendered judgment and an appeal followed. The Supreme Court,
Thompson, J., held that attorneys' agreement for equal sharing of all fees, including
extra-ordinary fees, for services performed during probate regardless of division of work was
enforceable absent recognized legal defenses.
Reversed, with instructions.
[Rehearing denied August 3, 1965] Teresa Corsiglia, and Adon V.
Teresa Corsiglia, and Adon V. Panattoni, of Sacramento, California; Bradley & Drendel,
of Reno, for Appellants.
William L. Hammersmith, for Respondent.
Court may in its discretion make apportionment of fees among attorneys different from that set forth in
agreement simply providing for division of fees among attorneys, in view of room for dispute over whether
fee division set forth in the agreement contemplated corresponding work division.
Attorneys' agreement for equal sharing of all fees, including extraordinary fees, for services performed
during probate regardless of division of work was enforceable absent recognized legal defenses.
OPINION
The appeal is from a judgment apportioning fees among the executor's attorneys on the
basis of services performed during probate. John Granata died in November 1962. His wife,
Filomena, died the following month. Their joint and mutual wills, executed in 1958, named
the First National Bank as executor, and suggested the employment of John Gabrielli of
Reno, Nevada, and Adon Panattoni and Teresa Corsiglia, partners, of Sacramento, California,
as the executor's attorneys. Gabrielli was elected district court judge, and assumed his judicial
duties on the first Monday of January 1963, thus precluding his participation as one of the
attorneys for the executor. He suggested that his friend, William Hammersmith, be
substituted in his place, and this was done. Soon thereafter, the attorneys reached an
agreement about fees. Hammersmith, on the one hand, and the firm of Panattoni and
Corsiglia, on the other, were to share equally all fees, including extraordinary fees, regardless
of the division of work. The estate proceeding was then commenced.
In October 1964 Hammersmith filed a Petition for Apportionment of Fees, in which he
flatly repudiated the agreement he had made with Corsiglia and Panattoni and requested
the court to apportion fees on the basis of the relative services performed.
the agreement he had made with Corsiglia and Panattoni and requested the court to apportion
fees on the basis of the relative services performed. The petition for apportionment was
apparently prompted by our opinion in Mau v. Woodburn, 80 Nev. 184, 390 P.2d 721, for
reference is made to that case in the petition. The lower court did not honor the agreement of
counsel. It found: Upon examination of the Petition and reports of services rendered to the
estate by respective counsel and an examination of the files and records of said estate, the
court finds that the agreement submitted to the Court for its approval is inequitable by reason
of the disproportionate amount of work performed by respective counsel on behalf of said
estate. It concluded that Hammersmith should receive $14,612.33 ($10,775.33 for ordinary
services and $3,837.00 for extraordinary services), and the firm of Panattoni and Corsiglia
$5,387.67. Judgment was entered accordingly and this appeal followed. We reverse.
[Headnotes 1, 2]
This case and Mau v. Woodburn, supra, are poles apart. In Mau the attorneys had not
agreed between themselves as to a division of fees. Therefore the court made a division based
upon services rendered by respective counsel. Here, we have the solemn agreement of
counsel providing for an equal division of fees regardless of who performed the work. It is, of
course, true that the Mau opinion quotes with approval the following language from a
California case: Concurrent or successive representatives or attorneys may agree between
themselves upon apportionment of the fee but the court should approve the agreement. If the
court does not believe the agreement compensates the parties equitably for their relative
services, or disapproves for some other reason, the court's apportionment will prevail over the
agreement. The court's apportionment will not be disturbed on appeal in the absence of a
showing of abuse of discretion. The ruling of the lower court and the respondent's position
here rest solely upon that quotation. We do not find that language troublesome, nor do we
think that it authorizes a court to ignore a fee agreement between counsel which, by its
express terms, contemplates and provides for an unequal division of the work.
fee agreement between counsel which, by its express terms, contemplates and provides for an
unequal division of the work. True it is that, had the agreement simply provided for a division
of the fee, without more, a court, in line with the quoted paragraph could, in its discretion,
make a different apportionment. In such case there is room for dispute whether the fee
division contemplated a corresponding work division. This, however, is not the case before
us. Here, the contracting attorneys expressly agreed upon an equal division of the fee,
regardless of the division of the work. There is no room left for the exercise of discretion by
the court. The agreement must be enforced, absent recognized legal defenses. The
respondent's repudiation of his agreement is unbecoming to a member of our bar. We regard
the lower court's ruling as plainly wrong. The selected quotation from Mau v. Woodburn was
unnecessary to the holding of that case and was not meant as an invitation to counsel to
repudiate fee agreements, nor may it sensibly be so construed.
The judgment below is reversed, and the lower court is directed to apportion equally the
attorneys fees which it authorized, ordinary and extraordinary, in accordance with the
agreement of counsel.
____________
81 Nev. 390, 390 (1965) Alamo Irrigation Co. v. United States
ALAMO IRRIGATION COMPANY, INC., et al.,
Appellants, v. UNITED STATES OF AMERICA, Respondent.
No. 4820
July 15, 1965 404 P.2d 5
Appeal from an order of the Seventh Judicial District Court denying appellants' motion to
correct a decree nunc pro tunc; Jon R. Collins, Judge.
The Supreme Court, Zenoff, D. J., held that provisions for watering of livestock and
washing of mineral salts from ranch lands were necessary and indispensable to territorial
area concerned under 36-year-old decree which determined relative rights in and to
waters of lake and its tributaries, and omission of these provisions was a clerical error
which could be corrected without time limitation.
territorial area concerned under 36-year-old decree which determined relative rights in and to
waters of lake and its tributaries, and omission of these provisions was a clerical error which
could be corrected without time limitation.
Reversed.
[Rehearing denied August 20, 1965]
Gray, Horton and Hill, of Reno, for Appellants.
J. Edward Williams, Acting Assistant Attorney General, Roger P. Marguis, Martin Green,
Raymond N. Zagone, Department of Justice, of Washington, D.C., and John W. Bonner,
United States Attorney, of Las Vegas, for Respondent.
Generally, errors affecting a party who does not appeal will not be reviewed.
Reviewing court will sometimes relax strict application of rule that errors affecting a party who does not
appeal will not be reviewed, and will sometimes consider cross assignments of error, without cross appeal,
in exercise of discretion.
Court refused to review objections of respondent United States that it was not a proper party to motion to
correct decree nunc pro tunc because sued without its consent, and that laches was applicable where such
defenses were not raised by cross appeal.
4. Judgment.
Burden of party filing motion to correct 36-year-old decree nunc pro tunc was to establish proposition
that alleged error in decree was clerical rather than judicial. NRCP 60(a).
5. Judgment.
Court can correct a clerical error in judgment or decree without time limitation. NRCP 60(a).
6. Judgment.
Applied to judgments and decrees, a clerical error is a mistake or omission by a clerk, counsel, judge,
or printer which is not result of the exercise of the judicial function, that is, one which cannot reasonably be
attributed to exercise of judicial consideration or discretion.
7. Judgement.
A judicial error not correctable by nunc pro tunc order is one made when court reaches an incorrect
result in the intentional exercise of the judicial function, occurring when a judge reaches a wrong or
incorrect decision in deciding a judicial question.
8. Judgment.
Provisions for watering of livestock and washing of mineral salts from ranch lands were necessary and
indispensable to territorial area concerned under 36-year-old decree which determined relative rights in and
to waters of lake and its tributaries, and omission of these provisions was a clerical error which could be
corrected without time limitation. NRCP 60(a).
OPINION
In 1919, a statutory proceeding was initiated for the determination of the relative rights in
and to the waters of Pahranagat Lake and its tributaries in Lincoln County, Nevada. In
accordance with the water laws the state engineer made an investigation of the stream system
and proofs of the various claims thereto.
After hearing objections to the preliminary order of determination, he prepared an Order of
Determination defining the rights of the various claimants and filed the same with the District
Court of Lincoln County on March 10, 1927. At the court hearing April 21, 1927, claimants
and objectors appeared, presented their evidence, and the court allowed two corrections,
neither of which is of concern or involved on this appeal.
On June 27, 1927, the court entered a minute order that a decree be entered affirming the
determination and adjudication of rights as made by the state engineer. The minute order
made no other reference to the hearing, and gave no indication or suggestion of a dispute
concerning any portions of the order of the engineer.
Thereafter, the court by letter directed the attorney general to prepare the findings of fact,
conclusions of law, and the final decree. The attorney general in turn requested the state
engineer to draft those same documents. By the very nature of the subject matter, its
complexities and intricacies, it was apparent that the composition of the findings and decree
would be a difficult task. The attorney general, in fact, suggested that the state engineer
follow the Tony Creek decision which was another water determination heard and drafted
at an earlier date.
Comparing the Tony Creek decision to the decree of the court in this case, the same form was
followed, except that paragraphs six and seven of the Order of Determination of the state
engineer in this matter, which were not contained in the Tony Creek decision, were omitted.
One of the claimants whose rights were adjudicated was the Gardner Ranch Company. In
August, 1963, respondent United States of America purchased from the Buckhorn Investment
Company the lands and water rights formerly comprising the Gardner Ranch.
Paragraph six of the order of the state engineer makes provision for watering of livestock
and paragraph seven allows for seasonal use of water to wash mineral salt from the soil.
Throughout the years, before and after the 1929 decree, the waters were used for the purposes
contained in the two paragraphs as if they were in the decree.
Upon discovery of the omission, in February, 1964, appellants filed their motion to correct
the decree nunc pro tunc as of the date of its entry, October 14, 1929, arguing that the two
paragraphs were left out of the decree through inadvertence and oversight, a clerical error,
while respondent protested that the absence of the paragraphs is the result of a judicial
determination, and no timely appeal having been taken, the appellants are without a remedy.
Respondent, as part of its answering argument, requests this court to consider the
propositions that the United States of America is not a proper party to the suit because sued
without its consent, and also the defense of laches. Both objections were raised in the lower
court and overruled.
[Headnotes 1-3]
These objections are not properly before this court. Respondent did not cross-appeal, but
filed a cross-assignment of error only as to the issue of laches. Generally, errors affecting a
party who does not appeal will not be reviewed. Salter v. Ulrich, 22 Cal.2d 263, 138 P.2d 7;
Alfred M. Lewis, Inc. v. Warehousemen, Teamsters, Chauffeurs and Helpers Local Union
No. 542, 163 Cal.App.2d 771, 330 P.2d 53.
Cal.App.2d 771, 330 P.2d 53. However, our court has relaxed the strict application of this
rule and will sometimes consider cross-assignments of error, without cross-appeal, in the
exercise of the court's discretion. Leonard v. Bowler, 72 Nev. 165, 298 P.2d 475. In this case
we do not choose to review the objections of the respondent because they were not raised by a
cross-appeal and will not now be considered by the court.
The problem with which we are chiefly concerned is whether or not a decree 36 years old
can be corrected to include now what was intended to be a part of the 1929 decree. It is
appellants' contention that the court record establishes that the typist who transposed the Tony
Creek decision into this one, was too literal and mistakenly left out the paragraphs six and
seven, and that the error was not discovered by the state engineer, the attorney general, or the
court.
[Headnotes 4, 5]
It was the burden of the appellant to establish the proposition that the error was clerical,
not judicial. Smith v. Smith, 157 Cal.App.2d 658, 321 P.2d 886. That a court can correct a
clerical error in a judgment or decree without time limitation is conclusively established.
NRCP 60 (a) states: Clerical mistakes in judgments, orders or other parts of the record
and errors therein arising from oversight or omission may be corrected by the court at any
time of its own initiative or on the motion of any party and after such notice, if any, as the
court orders. * * * Sparrow & Trench v. Strong, 2 Nev. 362, 366, Ex parte Breckenridge, 34
Nev. 275, 280, 118 P. 687, overruled on another point; Lindsay v. Lindsay, 52 Nev. 26,
33-34, 280 P. 95; Brockman v. Ullom, 52 Nev. 267, 268, 286 P. 417; Silva v. District Court,
57 Nev. 468, 474, 66 P.2d 422; Finley v. Finley, 65 Nev. 113, 119, 189 P.2d 334, 196 P.2d
766, overruled on another point; Iveson v. District Court, 66 Nev. 145, 152, 206 P.2d 755;
Marble v. Wright, 77 Nev. 244, 248, 362 P.2d 265.
[Headnote 6]
A clerical error, as opposed to a judicial error, is defined to be * * * a mistake in writing
or copying. As more specifically applied to judgments and decrees a clerical error is a
mistake or omission by a clerk, counsel, judge, or printer which is not the result of the
exercise of the judicial function.
more specifically applied to judgments and decrees a clerical error is a mistake or omission
by a clerk, counsel, judge, or printer which is not the result of the exercise of the judicial
function. In other words, a clerical error is one which cannot reasonably be attributed to the
exercise of judicial consideration or discretion.
[Headnote 7]
A judicial error, on the other hand, is one made when the court reaches an incorrect result
in the intentional exercise of the judicial function. It occurs when a judge reaches a wrong or
incorrect decision in deciding a judicial question. Marble v. Wright, supra.
The appellants direct us to the court record and the circumstances and facts existing during
the drafting of the findings and decree, i.e., the complexities involved in drawing findings and
a decree in a water determination; that the Tony Creek decision was followed in all respects
but that it did not contain paragraphs akin to six and seven and thus the same were not put in
this decree; that there were no protests nor contest to the subject matter in the disputed
paragraphs and therefore the trial court could not have acted specifically upon them; that the
minute order clearly and entirely adopted the order of the engineer without change,
reservation, or qualification; that there was continuous use of the water for said purposes
reflecting an understanding that the decree allowed it; and that the foregoing, accumulated,
satisfies their burden that the omission was clerical and the decree subject to correction.
[Headnote 8]
But for the subject matter of the two paragraphs we would be constrained to agree with the
lower court who denied the motion. However, the watering of livestock and the washing of
mineral salts from ranch lands are integral, necessary, and indispensable to the territorial area
concerned. Prohibiting water for such uses would most normally create a protest of sufficient
strength to earn a place in the court record. The two paragraphs referred to are treated
together in the briefs. While the provision for diversion of water to wash the alkali from the
soil may be applicable only in certain districts, the provision for diversion for domestic use
and stock water may be said to be of universal application.
may be said to be of universal application. Omission of this provision under the
circumstances cannot reasonably be said to be other than a clerical error. From the absence of
such reference we can only conclude that no such problem arose and that the two paragraphs
were inadvertently left out in the typing of the findings and decree. The evidence, we hold, is
clear and convincing. Fall River Irr. Co. v. Swendsen, 41 Idaho 686, 241 P. 1021; Application
of Beaver Dam Ditch Co. (Crowell v. City of Cheyenne), 54 Wyo. 459, 93 P.2d 934.
The order denying appellants' motion is reversed.
The lower court is directed to correct the decree of October 14, 1929, by adding thereto the
following:
6. That in addition to water used during the irrigation season, each user shall be entitled
to divert sufficient water for stock and domestic purposes, the amount diverted not to exceed
a flow of 0.025 of a cubic foot per second at each point of use, such diversion to be made
during the non-irrigating season, subject to the provisions of paragraph 3. The point of
measurement of stock water shall be at the same point as selected and approved by the State
Engineer for the measurement of irrigation water.
7. That in addition to the water allowed for irrigation, stock and domestic purposes, each
user in his proper proportion and priority shall also be entitled to an economical bimonthly
diversion of water for washing mineral salts from his land, such diversion to be permitted
from October 1 to March 14 of each year, in accordance with custom long prevailing.
____________
81 Nev. 397, 397 (1965) Brown v. State
GEORGE D. BROWN, Appellant, v.
No. 4801
July 22, 1965 404 P.2d 428
Appeal from judgment of the Sixth Judicial District Court, Humboldt County; Merwyn H.
Brown, Judge.
Prosecution for branding another's calf with intent to steal. The lower court rendered
judgment, and defendant appealed. The Supreme Court, Thompson, J., held that evidence that
defendant possessed other cattle other than his own was admissible for limited purpose of
proving intention to steal.
Judgment affirmed.
Diehl & Recanzone, of Fallon, for Appellant.
Harvey Dickerson, Attorney General, Carson City; James A. Callahan, Special Deputy
District Attorney, and Donald M. Leighton, District Attorney, of Winnemucca, for
Respondent.
1. Criminal Law.
Evidence of other offenses is not admissible unless relevant to motive, intent, absence of mistake or
accident, common scheme or plan, or identification.
2. Criminal Law.
Limited purpose for which evidence of other offenses may be considered must be specifically stated.
3. Criminal Law.
Trial judge's duty to strike balance between prejudicial effect of evidence of other offenses on one hand,
and probative value on other, is grave one to be resolved by exercise of judicial discretion; discretion is not
unlimited, but reviewing court will respect lower court's view unless it is manifestly wrong.
4. Criminal Law.
Evidence that defendant possessed cattle other than his own was admissible in prosecution for branding
another's calf with intent to steal, for limited purpose of proving intention to steal. NRS 205.225, subd.
2.
5. Criminal Law.
Reviewing court could not presume that jurors improperly used evidence admitted for limited purpose.
6. Animals.
Instruction on statutory duty to report estrays was supported by evidence in prosecution for branding
another's calf with intent to steal. NRS 205.225, subd. 2, 569.050.
81 Nev. 397, 398 (1965) Brown v. State
7. Animals.
Record in prosecution for branding another's calf with intent to steal supported instruction about
possession of stolen property. NRS 205.225, subd. 2.
8. Criminal Law.
Instruction, in prosecution for branding another's calf with intent to steal wherein evidence of defendant's
possession of other cattle not his own was admitted for limited purpose of proving intent to steal, on limited
purposes for which evidence was admitted satisfied requirement of admonition, although it would have
been preferable for trial judge to advise jury of limited purpose of evidence as it was received.
9. Criminal Law.
Appropriate instructions about other offenses may be given if supporting evidence has been properly
received during trial.
10. Criminal Law.
Instructions, in prosecution for branding another's calf with intent to steal wherein evidence tending to
prove date of branding different from that alleged in indictment was received, that variance was immaterial
and that precise time need not be alleged, were proper, where issue was whether branding happened
accidentally or was done with intent to steal. NRS 205.225, subd. 2.
11. Animals.
Date of branding was not material ingredient of offense of branding another's calf with intent to steal.
NRS 205.225, subd. 2.
12. Searches and Seizures.
Evidence relating to cattle found on defendant's property was not result of unconstitutional search and
seizure, where search and seizure had been authorized and consented to by defendant's attorney after
consulting defendant.
OPINION
By indictment Brown was accused of grand larceny for marking and branding a calf on
September 2, 1963, owned by Allied Land and Cattle Company, with the intent to steal it.
NRS 205.225(2). He was convicted, and appeals. The sufficiency of the evidence to support
the guilty verdict is not challenged. However, he does claim that prejudicial errors of law
occurred entitling him to another trial. Ten such errors are assigned. The main legal problem
below, and here, was, and is, the admissibility of evidence showing that Brown was possessed
of other cows and calves not his own when the calf, the subject of the present indictment, was
found in his possession.
81 Nev. 397, 399 (1965) Brown v. State
in his possession. The problem was first presented to the lower court when the prosecutor,
during his opening statement to the jury, referred to Brown's possession of such other cattle
when apprehended on September 10, 1963. Objection was immediately interposed. The jury
was excused, and legal argument presented. The judge ruled that the prosecutor's reference
was permissible and that such evidence during trial would be allowed for the limited purposes
of proving Brown's intention to steal the Allied calf and to show that it was not branded by
mistake or accident. Such evidence was subsequently presented, and the following story was
revealed to the jury.
On September 10, 1963, the sheriff and others went to the Brown ranch near Valmy,
Nevada. There they discovered six cows not belonging to Brown, but belonging to six
different owners and bearing six different brands. Four of the six cows had a calf each, and
three of the calves bore Brown's brand. The Allied Land and Cattle Co. cow had been on the
Brown ranch since 1958. There was some confusion regarding its brand. In any event, Brown
made no effort to resolve that confusion, and that cow and her calf bearing Brown's brand
(subject of this case) were found on the defendant's fenced ranch on September 10, 1963. A
W. T. Jenkins Co. cow was turned out in a field adjacent to Brown's in the fall of 1962 and
was not seen again by its owner until September 10, 1963, when she was found on Brown's
fenced premises with a calf bearing Brown's brand. A Duncan heifer was turned out and last
seen on the open range near Imlay about March 30, 1963, some 70 miles from the Brown
ranch. She was found with a calf on the Brown ranch September 10, 1963. A cow and calf
belonging to Harry Green were also there. The calf bore Brown's brand. Two other cows, one
belonging to Great Western Land and Cattle Co., and the other to Mr. Miller, were also found
on the defendant's premises. The ten cattle were separated from a herd of about 200, seized by
the sheriff, and held in his custody.
[Headnotes 1-5]
(1) Evidence of offenses other than that for which the accused is on trial is not permissible
unless relevant to motive, intent, absence of mistake or accident, a common scheme or
plan, or identity of the defendant.
81 Nev. 397, 400 (1965) Brown v. State
motive, intent, absence of mistake or accident, a common scheme or plan, or identity of the
defendant. State v. McMahon, 17 Nev. 365, 30 P. 1000 (intentabsence of accident); State v.
Roberts, 28 Nev. 350, 82 P. 100 (identity); State v. Vertrees, 33 Nev. 509, 112 P. 42 (intent);
State v. Cerfoglio, 46 Nev. 332, 213 P. 102 (motiveintent); State v. Elges, 69 Nev. 330,
251 P.2d 590 (intent); Nester v. State, 75 Nev. 41, 334 P.2d 524 (identity); Wallace v. State,
77 Nev. 123, 359 P.2d 749 (intent); Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (intent);
Fernandez v. State, 81 Nev. 276, 402 P.2d 38 (intent). See also State v. Hall, 54 Nev. 213, 13
P.2d 624. Of course the limited purpose for which such evidence may be considered by the
jury must be specifically stated. State v. McFarlin, 41 Nev. 486, 172 P. 371; State v.
Monahan, 50 Nev. 27, 249 P. 566. We know that prejudice may occur when a jury is
permitted to learn that the accused may have committed other criminal offenses. In such
circumstance the danger is ever present that he may be convicted of a crime other than the
one for which he is on trial. The duty placed upon the trial court to strike a balance between
the prejudicial effect of such evidence on the one hand, and its probative value on the other, is
a grave one to be resolved by the exercise of a judicial discretion. Nester v. State, supra; State
v. Nystedt, 79 Nev. 24, 377 P.2d 929. Of course the discretion reposed in the trial judge is not
unlimited, but an appellate court will respect the lower court's view unless it is manifestly
wrong. We do not find manifest error here. The very nature of the crime charged presents
apparent difficulties in proof. Those familiar with the cattle business in Nevada know that it
is not uncommon for one mistakenly or accidentally to brand a calf belonging to another. An
isolated occurrence may, in truth, be as consistent with innocence as with guilt. Thus
evidence of the type here offered, particularly the testimony showing that the defendant
branded two other calves that were not his, together with his possession of the mothers of
those calves, also not his, was probably necessary to prove his intention to steal the Allied
calf and to negate an accidental branding of it.
81 Nev. 397, 401 (1965) Brown v. State
and to negate an accidental branding of it. In these circumstances we cannot rule that the
lower court erred in deciding that the probative value of such evidence overbalanced its
prejudicial effect. The limited purpose and use of that evidence was made known to the jury,
and we cannot presume that the jurors used it improperly in arriving at their verdict.
[Headnotes 6-9]
(2) The appellant also complains about certain jury instructions dealing with the subject of
other offenses. One of them quoted the statutory language of NRS 569.050 which requires
one in possession of an estray to report that fact to the State Department of Agriculture within
5 days. The jury could have believed from some of the testimony, particularly the defendant's,
that some of the ten cattle found on his ranch belonging to other persons were estrays. He
acknowledged awareness of the law requiring him to report. He admitted that he had not done
so. The instruction, therefore, finds support in the evidence. The record also supports the
instruction about Brown's possession of stolen property. Meador v. State, 201 Ark. 1083, 148
S.W.2d 653; People v. Johnson, 99 Cal.App.2d 717, 222 P.2d 335; Harper v. State, 60
Ga.App. 684, 4 S.E.2d 734; State v. Hall, 105 Utah 162, 145 P.2d 494; see also Ruland v.
People, 103 Colo. 228, 84 P.2d 821. A third instruction made it clear that all evidence of
other crimes or offenses was to be considered by the jury for the limited purposes of showing
Brown's intention to steal the calf in question and to negate any claim that it was branded by
mistake or accident. This admonition satisfies the requirement of State v. McFarlin, supra.
Though we think it would have been preferable for the trial judge to have advised the jury of
the limited purposes of such evidence as it was received during trial (rather than waiting until
he instructed the jury), we do not consider the delay to create error. We hold that appropriate
instructions about other offenses may be given if supporting evidence has been properly
received during trial.
81 Nev. 397, 402 (1965) Brown v. State
[Headnotes 10, 11]
(3) The indictment charged that Brown marked and branded an Allied calf on September
2, 1963. Evidence tending to prove a different date of branding was received. Because of this
fact the court instructed the jury that the variance was immaterial so long as the jury is
convinced beyond a reasonable doubt that the branding of the calf took place prior to the
filing of the indictment by the Grand Jury. The court also instructed the jury in the language
of NRS 173.270: The precise time at which an offense was committed need not be stated in
the indictment or information, but it may be alleged to have been committed at any time
before the finding of the indictment or the filing of the information, except where or when the
time is a material ingredient to the offense. These instructions are attacked on appeal. We
think that the court properly gave them. The date of branding is not a material ingredient of
the offense of which Brown was accused. State v. Cerfoglio, supra, (perjury); Ex parte
Stricker, 71 Nev. 193, 284 P.2d 383 (extradition); Martinez v. State, 77 Nev. 184, 360 P.2d
836 (rape). Furthermore, in this case Brown's branding of the Allied calf was admitted. The
true issue to be resolved was whether the branding happened accidentally or was done with
the intent to steal. The time of its occurrence is patently immaterial in this context.
[Headnote 12]
(4) Before trial Brown moved to suppress evidence relating to one calf, purportedly the
property of Allied Land and Cattle Co., and one cow, purportedly the property of the said
Allied Land and Cattle Co. The motion was based on the ground that the calf and cow and
evidence relating thereto were the result of an unconstitutional search and seizure. The
motion to suppress was denied after a hearing at which much testimony was received. The
lower court was correct in its ruling, for the sheriff's search and seizure was authorized and
consent was given by Brown's attorney after consulting Brown. Arrangements were made for
the sheriff and Brown to meet at the Brown ranch on September 10, 1963, and search without
obtaining a warrant for that purpose.
81 Nev. 397, 403 (1965) Brown v. State
We have considered other assignments of error raised and find them to be wholly unsound.
Affirmed.
____________
81 Nev. 403, 403 (1965) State Tax Commission of Utah v. Cord
STATE TAX COMMISSION OF UTAH, Appellant, v. ERRETT
L. CORD, aka E. L. CORD, and VIRGINIA CORD, Respondents.
No. 4842
July 22, 1965 404 P.2d 422
Appeal from an order granting respondents' motion to dismiss complaint; Washoe County,
John E. Gabrielli, Judge.
Action by Utah Tax Commission to recover on income tax deficiency assessment. The
lower court dismissed, and plaintiff appealed. The Supreme Court, Zenoff, D. J., held that
Utah income tax warrant was not entitled to full faith and credit as public record or as
judgment where taxpayers were nonresidents who had made only single sale of property in
Utah, but that action on assessment was timely.
Daniel R. Walsh, of Carson City, Phil L. Hansen, Attorney General, and F. Burton
Howard, Asst. Attorney General, of Utah, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, and Roger W. Jeppson, of Reno,
and Edward D. Neuhoff, of San Marino, California, for Respondents.
1. Constitutional Law.
Due process of law requires that there be jurisdiction of person or subject matter by home state where
judgment was entered for full faith and credit to apply. U.S.C.A.Const. art. 4, 1.
2. Judgment.
It is permissible to look behind a sister state's judgment for jurisdiction. U.S.C.A.Const. art. 4, 1.
3. Courts.
State can exercise through its courts jurisdiction over individual who has done act within state if, by law
of state at time when act was done, a person by doing the act subjected himself to jurisdiction of state as to
such cause of action.
4. Courts.
Under Utah law, much more than single transaction within state is needed before Utah will obtain
jurisdiction by virtue of nonresident doing business within state.
5. Courts.
Nonresidents' isolated installment sale of property in Utah was insufficient to permit Utah courts to
exercise jurisdiction over them.
6. Judgment.
Validity of every judgment depends upon jurisdiction of court before it is rendered.
7. Judgment; States.
Utah income tax warrant, docketed as judgment, was not entitled to full faith and credit as a judgment or
a public record where taxpayers were Nevada residents who made isolated sale of Utah property and were
not subject to in personam jurisdiction in Utah. U.C.A.1953, 59-14-59, 59-14-60; U.S.C.A.Const. art.4,
1.
8. Courts.
Nevada courts will enforce valid tax obligations imposed by another state even though they have not been
reduced to judgment.
Utah law governed to determine when right to sue for Utah income tax accrued.
10. Taxation.
Under Utah law, making of income tax assessment is condition for bringing suit, and limitation period
does not commence to run until assessment is made. U.C.A. 1953, 59-14-34, 59-14-35(2), 59-14-36(1).
11. Limitation of Actions; Taxation.
Action commenced within three years from Utah income tax deficiency assessment, notice of which was
given within three years after filing of return, was timely, whether Utah or Nevada limitations statute
applied. U.C.A.1953, 59-14-34, 59-14-35(2), 59-14-36(1); NRS 11.190.
Statute of limitations on liabilities created by statute applies to tax liabilities. NRS 11.190, subd. 3.
OPINION
The Utah Tax Commission brought suit in Nevada against Errett and Virginia Cord to
recover money claimed to be due under the Utah state income tax law.
The complaint is in three counts. The first count alleges that an income tax warrant for
$30,261.25 was docketed as a judgment in accordance with Sections 59-14-59 and 60, Utah
Code Annotated 1953, and is constitutionally entitled to full faith and credit in Nevada. The
second count, an alternative count, asserts that a deficiency assessment for $21,327.29 was
made against the defendants in accordance with Utah statutory provision and, as an official
record of that state, is to be accorded full faith and credit in Nevada. The third claim for
relief, also an alternative claim alleges that the defendants sold uranium properties located in
Utah for the total sum of $17,000,000 on an installment note resulting in an income tax
liability for the years 1958 and 1959; that the defendants, in filing a nonresident income tax
return, claimed nonallowable business deductions, causing the commission to levy a
deficiency assessment for $21,327.29 which has not been paid and has become final.
The lower court granted the defendants' motion to dismiss each claim for relief. In our
view its ruling was correct as to the first two counts, but in error as to the third.
Errett and Virginia Cord are residents of Nevada. They have never been residents or
domiciliaries of Utah. Their income tax liability to Utah arose from an isolated installment
sale of uranium property located there. They paid the tax which they believed to be due for
the years in question. Since that sale neither defendant has owned real or personal property in
Utah. As stated, the first two claims for relief rest solely upon the full faith and credit clause
of the federal constitution. It is contended by the Utah Tax Commission that the income tax
warrant for $30,261.25 which was docketed as a judgment is constitutionally entitled to full
faith and credit in Nevada. The same claim is made as to the deficiency assessment, i.e., that
it is a public record of Utah within the ambit of the full faith and credit clause. Neither
contention is valid.
[Headnote 1]
We agree with the lower court in dismissing the first two claims for relief. It is sufficiently
established that due process of law requires that there be jurisdiction of the person or
subject matter by the home state where the judgment was entered for full faith and credit
to apply.
due process of law requires that there be jurisdiction of the person or subject matter by the
home state where the judgment was entered for full faith and credit to apply. Though the
doctrine of Pennoyer v. Neff, 95 U.S. 714, has been eroded to some extent (See International
Shoe Co. v. Washington, 326 U.S. 310, and the cases therein cited), it still rules the case at
bar.
[Headnotes 2, 3]
Since it is permissible to look behind a sister state's judgment for jurisdiction, Williams v.
North Carolina, 325 U.S. 226, we must determine whether Utah has a law granting
jurisdiction over a nonresident because of an act committed by him within the state. A state
can exercise through its courts jurisdiction over an individual who has done an act within the
state if, by the law of the state at the time when the act was done, a person by doing the act
subjected himself to the jurisdiction of the state as to such cause of action. Restatement,
Conflict of Laws 84; Reese & Galston, Doing an Act or Causing Consequences as Bases of
Judicial Jurisdiction, 44 Iowa L.Rev. 249.
Utah Code Ann., 78-27-20 states that:
Every nonresident person other than insurance organizations doing business in this state
in one or more places, either in his own name or a common trade name, and said businesses
are conducted under the supervision of a manager, superintendent, or agent, shall file or cause
to be filed annually, on or before January 15th * * * a certificate under oath setting forth the
name of and address of the manager, superintendent, or agent upon whom service of process
may be had in any action arising out of the conduct of such business.
[Headnotes 4, 5]
However, the case law of Utah indicates that much more than a single transaction within
the state is needed before Utah will obtain jurisdiction by virtue of a nonresident doing
business within the state. In Conn v. Whitmore, 9 Utah 2d 250, 342 P.2d 871, a resident of
Utah purchased three horses from a resident of Illinois, the transaction taking place in Illinois.
That state permits personal service of summons on any person outside of the state who in
person or through an agent transacts any business with said state.
of the state who in person or through an agent transacts any business with said state. A
dispute arose from which the seller obtained a judgment in Illinois by service in the manner
set out in the statute. Defendant, the Utahan, did not appear in the action, but contested the
enforcement of the judgment in Utah. The Utah court held that the one transaction was not
enough to meet the doing business requirements, that there must be some substantial
activity which correlates with a purpose to engage in a course of business or some continuity
of activity in the state so that deeming the defendant to be present therein is founded upon a
realistic basis and is not a mere fiction. That this is so and that a single act or transaction does
not suffice unless it fits into the above pattern is well established. See also International
Shoe Co. v. Washington, 326 U.S. 310; Wein v. Crockett, 113 Utah 301, 195 P.2d 222;
Dykes v. Reliable Furniture & Carpet Co., 3 Utah 2d 34, 277 P.2d 969; Alward v. Green, 122
Utah 35, 245 P.2d 855. Therefore, the law of Utah does not consider the act done by the
Cords an act sufficient to permit jurisdiction over them.
[Headnote 6]
[T]he validity of every judgment depends upon the jurisdiction of the court before it is
rendered * * *. Pennoyer v. Neff, supra at 728. In each of the cases relied upon by the
appellant, the court considered whether jurisdiction had been obtained. And in every case, the
court decided that it had jurisdiction, either by statute which granted jurisdiction because
certain acts were done within the state, or because of jurisdiction over the person.
In City of New York v. Shapiro, D.Mass., 129 F.Supp. 149, it was held that the
comptroller who levied the tax in New York had personal jurisdiction of the taxpayers
because they appeared before him and participated in the proceedings. In Ohio Dep't of
Taxation v. Kleitch Bros., Inc., 357 Mich. 504, 98 N.W.2d 636, the court held that Ohio had
jurisdiction of the taxpayer because the corporation submitted to the terms of the tax statute,
including its summary judgment provisions, by applying for a license and using the highways.
In Owens v. Superior Court, 52 Cal.2d 822, 345 P.2d 921, it was held that California had
personal jurisdiction of a former resident by virtue of a statute giving the state personal
jurisdiction over a former domiciliary who was a resident when the cause of action sued
upon arose.
California had personal jurisdiction of a former resident by virtue of a statute giving the state
personal jurisdiction over a former domiciliary who was a resident when the cause of action
sued upon arose.
The appellant contends that the docketed warrant judgment imposing personal liability on
the Cords is a public record of Utah which must be given full faith and credit. We will not
enforce a personal liability imposed by another state on a resident of our state without
jurisdiction over him simply because the imposition of liability is called a record and not a
judgment. The jurisdictional requirements shall be met whether the matter is regarded as a
judicial proceeding or a record. See Magnolia Petroleum Co. v. Hunt, 320 U.S. 430.
[Headnote 7]
It is therefore our conclusion that the tax herein imposed being a personal tax requiring in
personam jurisdiction, the single business engagement of the Cords was not a continuous
course of conduct needed to satisfy the Utah requirements and is not entitled to full faith and
credit as a judgment or public record.
[Headnote 8]
There no longer is serious contention that one state will not enforce the tax laws of a sister
state. Time, history and review have virtually erased the contentions that taxes are penal in
nature and that one state need not enforce the taxes of a sister state because full faith and
credit did not apply to criminal or revenue matters. City of Detroit v. Gould, 12 Ill.2d 297,
146 N.E.2d 61. The courts of one state will now entertain suits to recover taxes levied under
statutes of another state when such liability has not been reduced to judgment. State ex rel.
Okl. Tax Comm'n v. Rodgers, 238 Mo.App. 1115, 193 S.W.2d 919; State ex rel. Duffy v.
Arnett, 314 Ky. 403, 234 S.W.2d 722; State ex rel. Okl. Tax Comm'n v. Neely, 225 Ark. 230,
282 S.W.2d 150; City of Detroit v. Gould, supra; Minnesota v. Karp, 84 Ohio App. 51, 84
N.E.2d 76; Moore v. Mitchell, 2 Cir., 30 F.2d 600, aff'd, 281 U.S. 18. Although courts still
hold to the contrary view that they will not entertain an action brought to enforce an alleged
liability under the tax laws of another state which has not been reduced to judgment {City
of Philadelphia v. Cohen, 11 N.Y.2d 401, 1S4 N.E.2d 167), Nevada courts will enforce valid
tax obligations imposed by another state even though they have not been reduced to
judgment.
which has not been reduced to judgment (City of Philadelphia v. Cohen, 11 N.Y.2d 401, 184
N.E.2d 167), Nevada courts will enforce valid tax obligations imposed by another state even
though they have not been reduced to judgment.
[Headnote 9]
However, respondents contend that the third cause of action is barred by a statute of
limitations. Nevada has no income tax and thus no period of limitations specifically relating
thereto, although NRS 11.190 does provide that an action upon a liability created by statute
can only be commenced within three years. The third claim for relief does not rest on the full
faith and credit clause. It is simply an action for money claimed to be due the State of Utah,
and may proceed to trial on the merits unless barred by limitations. We must look to the law
of Utah to determine when the right to sue for income tax accrues.
Utah's limitation statutes are built-in to the Utah income tax law and provide that an
assessment must be levied within three years after the return is filed, and no proceeding in
court without assessment for the collection of such taxes shall be begun after the expiration of
such period. Utah Code Ann., 59-14-34. It is also provided that where the assessment of
any income tax imposed by this chapter has been made within the period of limitation * * *
such tax may be collected by warrant and levy * * * or by a proceeding in court, but only if
begun within three years after the assessment of the tax. Utah Code Ann., 59-14-35(2).
[Headnote 10]
These statutes indicate that the making of an assessment is a condition for bringing suit;
and until the assessment is made, the limitation period does not commence to run. This
conclusion is supported by the language of both Utah statutes and cases. A Utah statute states
that the running of the statute of limitations concerning income tax liability is on the making
of assessments. Utah Code Ann., 59-14-36 (1). And a Utah case has stated that when
some controlling statute * * * provides that an additional thing be done before action may be
brought, * * * the statute of limitations does not start to run until the time when suit may
be maintained * * *."
before action may be brought, * * * the statute of limitations does not start to run until the
time when suit may be maintained * * *. State Tax Comm'n v. Spanish Fork, 99 Utah 177,
100 P.2d 575. Since suit cannot be maintained until an assessment is made, the cause of
action and the running of the statute of limitations do not begin until such assessment is
made.
[Headnotes 11, 12]
Notice of the deficiency assessment against the respondents was given June 6, 1961, well
within the three-year period after the return was filed. On April 1, 1964, this suit was
commenced. This was within three years from the deficiency assessment; and whether we
apply Utah's statute of limitations or that of Nevada, the action is timely.
1

Reversed and remanded for further proceedings.
Badt, J., concurs.
I agree that the third claim for relief is simply an action for money claimed to be due the
State of Utah and may proceed to trial on the merits as it is not barred by limitations. I also
agree that the first two claims for relief were properly dismissed because neither the docketed
warrant judgment nor the record of the deficiency assessment is constitutionally entitled
to full faith and credit. However, I would prefer to base the decision regarding the first two
claims for relief solely upon an analysis of the Utah statutory law respecting alternative
methods for the collection of income taxes.
Utah recognizes two methods by which income taxes may be collected. One is by warrant
and levy, and the other is through court action. See Utah Code Ann., 59-14-35(2). The
warrant and levy method is a summary procedure and was attempted to be pursued here.
However, it may be utilized only if the taxpayer owns real or personal property in Utah which
can be seized and sold. See Utah Code Ann., 59-14-59 and 59-14-60. The ownership of
property in that state is
____________________

1
We are satisfied that NRS 11.190(3) applies to tax liabilities. State v. Yellow Jacket
Mining Co., 14 Nev. 220.
the jurisdictional basis for that method of collection. As the Cords have no property located in
Utah subject to seizure and sale, the so-called warrant judgment is wholly ineffective for any
purpose. The jurisdiction required to effectuate summary collection did not exist.
Nor was the second method, a court action against Errett and Virginia Cord in Utah,
available to the tax commission for the Cords were not subject to the personal jurisdiction of
a Utah court. Pennoyer v. Neff, 95 U.S. 714. Utah undoubtedly recognized this and did not
commence suit in that state. Instead the Commission filed suit in Nevada where the taxpayers
are residents and amenable to process. For the reasons expressed in the majority opinion
Nevada should entertain the suit on its merits. The deductions against income claimed by the
taxpayers may, or may not, be allowable. Neither the deficiency assessment nor the warrant
judgment may be considered as proof of the claimed debt. Evidence will be required to
resolve the dispute within the framework of Utah income tax law.
____________
81 Nev. 411, 411 (1965) Arley v. Liberty Mutual Fire Insurance
CHARLOTTE HUNTER ARLEY, Appellant, v. LIBERTY MUTUAL FIRE INSURANCE
COMPANY, a Massachusetts Corporation, Respondent.
No. 4876
July 23, 1965 404 P.2d 426
Appeal from an order directing appellant to enter satisfaction of judgment, or directing the
clerk to make such entry; Washoe County, John E. Gabrielli, Judge.
Proceeding by defendant insurer to compel entry of satisfaction of judgment. The lower
court granted relief, and plaintiff appealed. The Supreme Court, Zenoff, D. J., held that
plaintiff who appealed unsuccessfully from judgment in her favor was not entitled to interest
thereon pending appeal.
Affirmed.
See also 80 Nev. 5; 388 P.2d 576.
Charlotte Hunter Arley, of Portland, Oregon, and Leslie M. Fry, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, and Roger W. Jeppson, of Reno, for
Respondent.
1. Interest.
Plaintiff who appealed unsuccessfully from judgment in her favor was not entitled to interest thereon
pending appeal.
2. Interest.
Running of interest stopped as of day after judgment when tender of full amount of judgment was made,
rather than on later date when plaintiff's notice of appeal was filed.
3. Jury.
Plaintiff was not entitled to jury trial on hearing on motion for entry of judgment. SCR 41(2).
OPINION
This is an appeal from an order entered by the Second Judicial District Court directing
appellant to enter satisfaction of judgment within ten days, or upon her failure to do so,
directing the clerk to make such entry.
1

Appellant sued respondent, her insurer, on a claim for fire damage to property owned by
appellant. She recovered judgment on December 13, 1962, for $39,614.21, plus costs, and
interest at 7% per annum from the date of entry of the judgment until paid. The day after
judgment was rendered Leslie M. Fry, designated by appellant to receive service of papers
2
because appellant, who had represented herself in proper person in the action resided out
of the state, signed a document acknowledging tender by the respondent of the full
amount of the judgment, which tender, evidently, was not accepted.3
____________________

1
NRS 17.200 states in pertinent part:
* * * Whenever a judgment shall be satisfied in fact, otherwise than upon execution, the party or attorney shall
give such acknowledgment, and upon motion the court may compel it, or may order the entry of satisfaction to
be made without it.

2
Supreme Court Rule 41(2) states:
An attorney admitted to practice in Nevada but who does not maintain an office in Nevada shall, on filing any
pleading in the courts of Nevada, either associate an attorney maintaining an office in Nevada, or designate an
attorney maintaining an office in the county in Nevada wherein the pleading is filed, upon whom all papers,
process or pleadings required to be served upon an attorney may be so served. The name and office address of
such attorney so designated shall be endorsed upon the pleading so filed, and service upon such attorney shall be
deemed to be service upon the attorney filing the pleading or other paper.
had represented herself in proper person in the action resided out of the state, signed a
document acknowledging tender by the respondent of the full amount of the judgment, which
tender, evidently, was not accepted.
3

Appellant appealed from a portion of the judgment claiming inadequacy of the award, but
this court affirmed the lower court in January, 1964. Arley v. Liberty Mutual Fire Ins. Co., 80
Nev. 5, 388 P.2d 576. Rehearing was denied on February 26, 1964, and the remittitur was
filed on April 13, 1964.
Appellant now claims interest on her judgment of December 13, 1962, from the date of its
original entry. Respondent had mailed her the amount of the judgment on April 23, 1964, and
upon her refusal to accept same, deposited the amount with the clerk of the court, and moved
the court for an order directing appellant to enter satisfaction of judgment. Appellant filed her
objection to the motion and on October 21, 1964, the court below entered its order directing
appellant to enter satisfaction of judgment, or upon failure to do so, directing the clerk to
enter said satisfaction. The clerk entered the satisfaction on November 4, 1964. From this
order and entry of satisfaction the appellant has appealed, attempting to disavow Fry's
authority to acknowledge tender.
Appellant contends that she is entitled to interest at the rate of 7% from the date of entry of
the judgment in December, 1962, and not merely from the time of the filing of the remittitur
in April, 1964.
____________________

3
The Acknowledgment of Tender appears on page 42 of the Record on Appeal, and states:
I hereby acknowledge that defendant Liberty Mutual Fire Insurance Company has tendered to me the sum of
Thirty-nine thousand six hundred fourteen dollars and twenty-one cents ($39.614.21) being the full amount, with
the exception of costs which are to be taxed and assessed at a later date, of that Judgment which was entered in
the case of CHARLOTTE HUNTER ARLEY vs. LIBERTY MUTUAL FIRE INSURANCE COMPANY being
Docket No. 190,562 in the Second Judicial District Court in the State of Nevada in and for the County of
Washoe.
DATED this 14th day of December, 1962.
/s/ CHARLOTTE HUNTER ARLEY
by/s/ LESLIE M. FRY
Leslie M. Fry
120 Pickard Place
Reno, Nevada
[Headnote 1]
She is in error. A party who appeals unsuccessfully from a judgment or decree in his favor
is not entitled to interest thereon pending the appeal. Quality Molding Co. v. American
National Fire Ins. Co., 7 Cir., 287 F.2d 313; State ex rel. Southern Real Estate & Financial
Co. v. City of St. Louis, 234 Mo.App. 209, 115 S.W.2d 513; Komosa v. Monsanto Chemical
Company, 305 S.W.2d 506 (Mo. 1957).
[Headnote 2]
We further hold that tender having been made on December 14, 1962, the day after the
judgment was entered, the running of interest stopped as of that date and not the later date
when notice of appeal was filed. Woodmont, Inc. v. Daniels, 10 Cir., 290 F.2d 186.
[Headnote 3]
As a further issue on appeal, appellant claims that she was deprived of a jury trial by the
lower court on the hearing of the motion for entry of judgment. No such right exists.
Affirmed.
Badt, J., and Waters, D. J., concur.
____________
81 Nev. 414, 414 (1965) Brunzell Construction v. Harrah's Club
BRUNZELL CONSTRUCTION CO., INC. OF NEVADA, a Nevada Corporation, Appellant,
v. HARRAH'S CLUB, a Nevada Corporation, Respondent.
No. 4889
August 17, 1965 404 P.2d 902
Appeal from the Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Action by owner against subcontractor on contract. A temporary injunction was issued to
restrain subcontractor's prosecution of previously filed California action against owner. The
trial court denied subcontractor's motion to stay the Nevada proceeding and to dissolve the
injunction.
injunction. The subcontractor appealed. The Supreme Court, Badt, J., held that the injunction
was not justified by the reasons recited by the court or by the briefs of owner.
Reversed.
Goldwater, Taber and Hill, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Respondent.
Order denying motion for stay is not appealable. NRCP 72(b).
Right of appeal is fixed by statute and there can be no appeal except as provided by statute.
3. Injunction.
Filing of bond is essential to validity of preliminary injunction. NRCP 65(c).
4. Appeal and Error; Injunction.
Failure of trial court to require filing of bond as condition of preliminary injunction against prosecuting
California action was reversible error. NRCP 65(c).
5. Injunction.
Injunction against prosecuting California action could not properly be granted on ground that
subcontractor's claim against owner in California action related entirely to events and transactions in
Nevada and to interpretation of Nevada law, as California court could apply Nevada law and ordinances as
well as Nevada courts, and descriptions of Nevada building site and adjoining property could as well be
described to California court or jury as to Nevada court or jury.
6. Injunction.
Finding that subcontractor selected California forum to subject owner to substantial and unnecessary
inconvenience and expense and to gain inequitable advantage upon owner, upon which injunction against
prosecuting California action was granted, was without support in record.
7. Injunction.
Injunction restraining prosecution of California action could not be granted on ground that defendant as
plaintiff therein had forced owner to litigate issue of whether owner was doing business in California in
violation of statute where California court had concluded that owner was doing business in California
without qualifying to do so under California law.
8. Injunction.
That California court might give owner of gambling casino less favorable consideration than it would
receive in Nevada was insufficient basis for enjoining prosecution of transitory action in California against
owner.
9. Injunction.
Determination that subcontractor who brought California action sought to harass and annoy defendant
owner by placing upon owner burden of attempting to prove Nevada law in California court and in so
doing would subject owner to inconvenience and unnecessary expense was insufficient basis for granting
injunction enjoining prosecution of transitory action in California.
10. Injunction.
Determination by Nevada court that complaint in California action contained repetitious, contradictory
and ill-founded pleadings was improper basis for injunction restraining prosecution of California transitory
action where California court had found complaint sufficient.
11. Injunction.
Application for injunction against proceeding in foreign jurisdiction raises not so much question of power
of court to grant remedy as propriety of doing so in particular case.
12. Injunction.
Determination that owner would face inconvenience and hardship of trial in two states unless injunction
were granted restraining prosecution of California action was without support in record, which disclosed on
contrary that subcontractor bringing California action would face two suits unless it could get complete
relief against all defendants in California.
13. Injunction.
That appearances of nonresident individual defendants who were parties to California action had not been
filed in Nevada action at time defendant therein filed motion to dissolve injunction restraining its
prosecution of California action did not preclude basing order denying motion on later filing.
OPINION
This appeal grows out of a contest between appellant (sometimes hereinafter referred to as
Brunzell) and respondent (sometimes hereinafter referred to as Harrah) whether Harrah's
action against Brunzell and Glens Falls Insurance Company, a New York corporation
(sometimes hereinafter referred to as Glens Falls) in the Second Judicial District Court,
Washoe County, Nevada, should proceed to trial in that court, or whether Brunzell's action
against Harrah and Glens Falls and some seven other defendants, theretofore filed and
pending in the Superior Court of Los Angeles County, California, should proceed to trial in
that court. (The proceedings in the Nevada court are sometimes hereinafter briefly
referred to as the Nevada case and the proceedings in the California court as the
California case.)
proceedings in the Nevada court are sometimes hereinafter briefly referred to as the Nevada
case and the proceedings in the California court as the California case.)
A brief recital of the proceedings to date follows:
Brunzell filed suit in California June 11, 1962. Defendants in that action were Harrah,
Glens Falls and some seven residents of California. The action grew out of a construction
contract between Brunzell and Harrah. Glens Falls was the surety on the construction bond.
The individual defendants included Wagner, the architect, Raimist, assistant architect, Dames
& Moore, a co-partnership, and its members, Smoots, Dames and Moore, soils engineers, and
Martin, the structural engineer. William Harrah, as an individual, was also a defendant in the
California action but was not a party in the Nevada action. All the California defendants
appeared generally in the California action except Harrah's Club, Inc., which appeared
specially in the California action on July 19, 1962, by a motion to quash service upon it. Such
motion was granted by the Superior Court of Los Angeles County, California, April 8, 1963,
but this order was reversed on March 23, 1964, by the District Court of Appeal of the State of
California, which held Harrah's Club subject to the jurisdiction of that state by service on the
secretary of state of California on January 23, 1963, pursuant to an order of the superior court
made January 22, 1963. Brunzell Construction Co., Inc. of Nevada v. Harrah's Club, 225 Cal.
App.2d 734, 37 Cal.Rptr. 659.
Harrah filed its Nevada action against Brunzell and Glens Falls in Nevada July 24, 1962.
Brunzell moved the Nevada court for a stay of the Nevada proceedings and Harrah moved the
Nevada court for an injunction restraining Brunzell from proceeding against it in California.
On August 23, 1963, the Nevada court denied Brunzell's motion for a stay and granted
Harrah's motion for an order enjoining Brunzell from proceeding against it in California.
Such order however reserved to Brunzell the right to prosecute its appeal from the order of
the Superior Court of Los Angeles County quashing service upon Harrah.
service upon Harrah. Following the decision of the District Court of Appeal of California
reversing the superior court's order quashing service, and holding that Harrah was subject to
the California jurisdiction, Brunzell renewed its motion in the Nevada action for a stay of
proceedings in Nevada and also moved to terminate and dissolve the injunction restraining
Brunzell from proceeding against Harrah in California. On July 23, 1964, the Superior Court
of Los Angeles County, on Harrah's motion, stayed all proceedings against Harrah in
California * * * pending termination of the injunction dated August 23, 1963, made in said
Reno lawsuit' by the Nevada Court itself, in the event it should hereafter elect to do so,
* * *. On December 24, 1964, the Nevada district court denied Brunzell's motion to stay the
Nevada proceedings and to dissolve the injunction of August 23, 1963, restraining it from
proceeding in California.
1
All the appearances by the California personal defendants, with
the exception of two of them, and with the exception of William Harrah, subjected
themselves unconditionally to the jurisdiction of the Nevada court.

____________________

1
The Nevada district court made and filed a Statement and Order which it ordered to be made a part of the
record in that case stating in part as follows:
* * * On December 15, 1964 I granted leave to defendant to file its motion to dissolve the preliminary
injunction. In addition there was filed a motion herein to stay these proceedings on April 1, 1964, and I granted
leave of Court to file said motion on said date.
On December 24, 1964, I entered an order denying both motions of Brunzell Construction Co., Inc. of
Nevada to dissolve the injunction and for stay of proceedings. Prior thereto I had two meetings in my chambers
with Richard W. Blakey, counsel for plaintiff Harrah's Club, and Bert Goldwater, counsel for Brunzell
Construction Co., Inc. of Nevada. At the time of those meetings I told counsel I felt that the matter should be
heard by a Nevada Court since plaintiff and defendant are Nevada corporations and the dispute involved the
construction of a building in Reno, Nevada; but that I also felt that defendant should not be required to litigate
the matter twice, once in California where jurisdiction over Harrah's Club as well as others had been obtained,
and in Nevada where Harrah's Club and Brunzell Construction Co. were the sole parties. I therefore told counsel
that I was inclined to grant both motions of Brunzell Construction unless certain defendants in the California
action, No. 797883 in the Superior Court of Los Angeles County, who were parties to that action brought by
Brunzell Construction, agreed to appear in the State of Nevada and accept service in this state unconditionally.
The first meeting with counsel was held December 3, 1964, and I gave counsel for Harrah's Club until December
18, 1964, within which to arrange for the appearance of other defendants or the motions of Brunzell
Construction would be
All the appearances by the California personal defendants, with the exception of two of
them, and with the exception of William Harrah, subjected themselves unconditionally to the
jurisdiction of the Nevada court. The failure of William Harrah to file an appearance, we do
not consider of any significance. He was not a party to the Nevada action. The appearance in
the Nevada action of the other two California defendants
2
was not unconditional but recited:
This appointment [of attorney to accept service] is conditional and shall become effective
only upon the dismissal by plaintiff Brunzell Construction Co., Inc. of Nevada of Los
Angeles Superior Court action No. 797,883, entitled Brunzell Construction Co., Inc. of
Nevada, a corporation, vs. Harrah's Club, the undersigned, and various others. * * *
Brunzell appealed from the order denying its motion for a stay of the Nevada proceedings
and from the order denying its motion to dissolve the injunction restraining Brunzell from
proceeding against Harrah in California.
[Headnotes 1, 2]
(1) Harrah maintains that the denial of Brunzell's renewed motion for a stay is not an
appealable order. In this it is correct. This court has consistently held that the right of appeal
is fixed by statute and that there can be no appeal except as provided by statute.
Johns-Manville, Inc. v. Lander County, 48 Nev. 244, 229 P. 387; Quinn v. Quinn, 53 Nev.
67, 292 P. 621. NRCP 72(b) lists Appealable Determinations, following the prior statutes
in this regard. An order granting or denying a stay of proceedings is not among them.
____________________
granted. On December 17, 1964, counsel for plaintiff Harrah's Club requested a conference with me and Bert
Goldwater, attorney for Brunzell Construction, at which conference I granted additional time to Harrah's Club
until December 23, 1964. Thereafter defendants, parties named Dames & Moore, Vernon A. Smoots, Trent R.
Dames, William W. Moore, William C. Wagner, Robert Raimist and John A. Martin, in the California action
filed herein a notice of submission to the jurisdiction of this Court and I thereupon refused to dissolve the
injunction or stay these proceedings and denied the motions of defendant Brunzell Construction Co., Inc. of
Nevada.

2
Martin, the structural engineer, and Smoots, Dames & Moore, the soils engineers.
The attempted appeal from the order denying Brunzell's motion for a stay of the Nevada
proceedings must be dismissed, and it is so ordered.
[Headnotes 3, 4]
(2) The first ground of Brunzell's appeal from the order granting Harrah's motion to
restrain Brunzell from proceeding with the California case is that the court did not require the
filing of a bond, as required by NRCP 65(c).
3
We are of the opinion that this point is well
taken. It is the rule in this state that under the mandatory provisions of the statute the
requirement for the filing of a bond is essential to the validity of an injunction. State ex rel.
Friedman v. District Court, 81 Nev. 131, 399 P.2d 632. Respondent asks that we overrule
Friedman, for the reason that appellate courts in the federal system have construed the federal
Rule 65 (c) (which is in all material respects identical with NRCP 65 (c)) as not being
mandatory, and cites cases from the eighth, sixth, second and tenth circuits.
4
However, the
circuit courts of appeal for the third, seventh and ninth circuits are in accord with the
construction placed on NRCP 65(c) by this court.
5

It is clear that the federal court holdings are in conflict. There is no disposition on the part
of this court to overrule its holding in Friedman and prior cases and to accept the decisions of
the particular federal cases relied on by respondent which appear to hold that the requirement
for a bond in such sum as the court deems proper implies that the injunction may be
issued without any provision for bond.
____________________

3
NRCP 65(c) SECURITY. No restraining order or preliminary injunction shall issue except upon the giving
of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages
as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No
such security shall be required of the State or of an officer or agency thereof.

4
Magidson v. Duggan, 180 F.2d 473 (8th Cir.); United States v. Onan, 190 F.2d 1 (8th Cir.); Urbain v.
Knapp Bros. Manufacturing Co., 217 F.2d 810 (6th Cir.); Ferguson v. Tabah, 288 F.2d 665 (2nd Cir.);
Continental Oil Company v. Frontier Refining Co., 338 F.2d 780 (10th Cir.).

5
Hopkins v. Wallin, 179 F.2d 136 (3rd Cir.); Chatz v. Freeman, 204 F.2d 764 (7th Cir.); Pioche Mines v.
Dolman, 333 F.2d 257 (9th Cir.).
implies that the injunction may be issued without any provision for bond.
From that part of the district court's Statement and Order, ordered by the court to be part
of the record in the case, it is apparent that the trial court recognized the general rules
governing the granting or the refusal to grant an injunction against prosecuting an action in
another state. 19 A.L.R.2d 301, 321. In characterizing the California action here involved, the
California District Court of Appeal in Brunzell Construction Co. Inc. of Nev. v. Harrah's
Club, 225 Cal.App.2d 734, 37 Cal. Rptr. 659, 665, stated: The causes of action in this case
are all transitory. Four of the seven causes are based on a tort theory. The four causes of
action based on tort are against California residents who were not parties to the Nevada
action. The California court quoted Schultz v. Union Pacific Railroad Co., 118 Cal.App.2d
169, 257 P.2d 1003, as follows:
The general policy of the common-law courts is to entertain transitory tort actions
regardless of the parties or the place where the cause of action arose, if the court in which the
action is brought has jurisdiction over the parties and the subject-matter. The rule is that if a
cause of action is transitory the action may be brought in this state if the defendant is found
here. * * * California courts exercise that jurisdiction in actions by citizens of other states,
nonresidents of this state, for the trial of transitory causes of action, whether based on the
common-law or a statute of a sister state or a statute of the United States. There is the
limitation that the law of the sister state be not contrary to the express provisions of the law or
the public policy of California, to abstract justice or pure morals, or injurious to the people.'
(None of these limitations are applicable here.) The court devoted four full pages to a
description of the business activities conducted by Harrah's Club in California. Brunzell
Construction Co., Inc., of Nev. v. Harrah's Club, 225 Cal.App.2d 734, 37 Cal.Rptr. 659-665.
Such recital overwhelmingly supports its reversal of the superior court order quashing service
of summons on Harrah's Club, and holding it subject to the California jurisdiction.
Harrah makes much of the fact that in the California action the superior court, on July 23,
1964, granted Harrah's motion for a stay of the California action against it, but it is apparent
from the language used by the California superior court that it did this in recognition of the
Nevada district court's injunction. The Superior Court of Los Angeles County said: It
appears that unless this order is made, plaintiff in this action threatens to proceed with this
action in violation of the injunctive order made in the Reno lawsuit.' It ordered a stay of the
California action pending disposition of the Reno lawsuit' * * * or pending termination of
the injunction dated August 23, 1963, made in said Reno lawsuit' by the Nevada court itself,
in the event it should hereafter elect to do so, whichever event first occurs. Nothing in the
California court's stay of the California proceedings affects the determination of this appeal.
Although the violation of NRCP 65(c) requires a reversal, it is apparent that the result of a
reversal on such ground would be a curing of the defect and another temporary injunction
based on the furnishing of a bond with a second appeal on the law and the facts already
before us in the voluminous briefs and the spirited oral arguments already presented. This
would require a duplication of effort and an expenditure of time for which such action on our
part would be responsible. We think it would be better for all of the litigants involved in the
Nevada and California actions that we express our views at this time.
(3) We have already quoted in footnote 1, supra, the words of the trial judge indicating his
view that appellant's motion to discharge the temporary injunction was well taken and would
be granted unless certain defendants in the California action in which Brunzell was plaintiff
agreed to appear in the State of Nevada [action] and accept service in this state
unconditionally. The time within which to arrange for such appearance was fixed, and
later extended at the request of Harrah. When these appearances were filed, the court made its
order denying Brunzell's motion to discharge the injunction.
[Headnote 5]
(4) The reasons for the court's action are stated in the separate paragraphs of its order. The
first is stated as follows:
The claims of defendant Brunzell asserted against plaintiff Harrah's Club in the California
action relate entirely to matters of concern to the State of Nevada and to local conditions
within Reno, Nevada, including the condition of the building site in Reno, Nevada, the
condition of the Dondero Building adjoining the building site in Reno, Nevada, the
interpretation of leases and documents affecting the building site and affecting the adjoining
property in Reno, Nevada, and the interpretation of Reno municipal ordinances. Such local
conditions and matters are not properly the concern of the Court in Los Angeles, California,
and cannot be readily or properly understood by said Court.
Case law affords no support for this reason. See cases cited in Annot., 69 A.L.R. 591, and
cases cited in Annot., 6 A.L.R.2d 896, 910 et seq. California courts can apply Nevada law and
City of Reno ordinances as well as Nevada courts, and descriptions of the Reno building site
and adjoining property may be as well described to a California court or jury as to a Nevada
court or jury.
In 28 Am.Jur., Injunctions 218, pages 724, 725, it is stated:
218. Attitude and Discretion of Court. The question as to when a court of equity will
exercise jurisdiction to restrain parties from prosecuting judicial proceedings in other states is
one of great delicacy, since it may frequently lead to a conflict of jurisdiction. On general
principles and on grounds of comity, the power is sparingly and reluctantly exercised, and the
relief is not granted except for grave reasons and under very special circumstances. * * * The
power [to enjoin the action in the foreign state] should be exercised only when necessary and
equitable in the orderly administration of justice, and the complainant must, as on other
applications for injunction, have sufficient equitable grounds for the relief. He must make a
clear showing that it would be inequitable, unfair, and unjust to permit the prosecution of
the suit in the foreign jurisdiction, for ordinarily, a court of equity will not exercise its
discretion to restrain the prosecution of a suit in another state unless a clear equity is
made out requiring the interposition of the court to prevent a manifest wrong and
injustice.
the prosecution of the suit in the foreign jurisdiction, for ordinarily, a court of equity will not
exercise its discretion to restrain the prosecution of a suit in another state unless a clear equity
is made out requiring the interposition of the court to prevent a manifest wrong and injustice.
The power of restraining the prosecution of a suit already begun in another jurisdiction is
one which should be exercised with care and with just regard to the comity which ought to
prevail among co-ordinate sovereignties, and in many instances the courts have declined to
exercise such power because the complainant failed to make out a clear case requiring
interposition of the court to prevent manifest wrong or injustice, that is, failed to show
sufficient equitable grounds for stopping the progress of that suit.
That local conditions cannot be readily or properly understood by a California court is
simply an unwarranted statement.
[Headnote 6]
(5) The next reason given by the court for the injunction is as follows:
The California forum was selected by defendant Brunzell for the purpose of subjecting
plaintiff Harrah's Club to substantial and unnecessary inconvenience and expense, and for the
purpose of vexatiously harassing plaintiff Harrah's Club, in order to oppress and annoy
plaintiff Harrah's Club and to gain an inequitable advantage over plaintiff Harrah's Club and
as a means of compelling plaintiff Harrah's Club to settle with defendants Brunzell and Glens
Falls.
As to the ground that the California action was brought to compel Harrah to settle with
Brunzell and Glens Falls, this may have been the theory of Harrah or his counsel, but it has
no support in the record.
As to the finding that the California action was brought to subject Harrah to inconvenience
and expense and to vex, harass, oppress and annoy Harrah and gain an inequitable advantage
over him, we think the complete answer is that it is uncontradicted that California was the
only state in which Brunzell could find and serve all the California defendants.
all the California defendants. And we think we may accept the analysis that the California
District Court of Appeal made of the contract documents.
The contract documents (invitations to bid, instructions to builders, form of proposal,
form of agreement, A.I.A. general conditions, report of foundation investigation, supplement
to general conditions, special provisions and plans and specification and addendums thereto)
prepared in Los Angeles County contain provisions requiring that the construction work be
performed in accordance with the safety orders of the Industrial Accident Commission of the
State of California, further that bidders on the construction work be required by the contract
documents to comply with Sections 4100 to 4108 inclusive of the Government Code of the
State of California. In short, Harrah's Club's representative in Los Angeles, in effect, wrote
into the contract provisions that the laws of California shall govern the contract insofar as
subcontractors and safety provisions are concerned. 37 Cal.Rptr. 659, 663.
[Headnote 7]
(6) The next reason given for granting the injunctions:
Defendant Brunzell contends in the California action that plaintiff Harrah's Club has done
and is doing business in the State of California without qualifying so to do under California
law. Defendant Brunzell seeks thereby to oppress and take improper advantage of Harrah's
Club by compelling Harrah's Club to be exposed to the risk of being found in violation of
California penal law and the threat of being subject to California taxes and penalties. In so
contending, defendant Brunzell has forced Harrah's Club to engage in prolonged, expensive
and extensive litigation which still continues over the sole question of whether Harrah's Club
has done or is doing business in California.
But the District Court of Appeal in California took eight columns to prove its conclusion
that Harrah was doing business in California. If it was the proof adduced by Brunzell that led
the California court to this conclusion, and led it to the reversing of the Superior Court's
order quashing service, this was apparently the lawful and justifiable end sought by this
phase of the litigation, which phase was induced by Harrah.
order quashing service, this was apparently the lawful and justifiable end sought by this phase
of the litigation, which phase was induced by Harrah.
(7) The next reason for the injunction is stated by the trial court as follows:
Defendant Brunzell has selected the California forum for the oppressive purpose of
requiring Harrah's Club to be subject to trial in a jurisdiction that regards gambling as illegal,
criminal and against public policy, thereby seeking to take advantage of prejudice against
Harrah's Club as the operator of a gambling business.
[Headnote 8]
In this the court apparently concurred in arguments of respondent's counsel. The same
arguments were submitted to this court, both in the briefs and in oral argument. They amount
simply to the contention that Harrah will receive a less favorable consideration in California,
where gambling is illegal, than in Nevada, where gambling is legal. Similar conditions have
been rejected in numerous cases as grounds for enjoining the prosecution of transitory actions
in a foreign jurisdiction, and are well illustrated in McDaniel v. Alford, 148 Ga. 609, 97 S.E.
673. There McDaniel, a domiciliary of Georgia, sought to enjoin Alford, also a domiciliary of
Georgia, from prosecuting an action instituted in Tennessee, to recover damages for an
alleged breach of warranty in a certain deed for land situated in Georgia. The petition for the
injunction alleged, inter alia:
that the defendants herein, with their acquaintances and connections in Tennessee, feel
that they have an advantage over petitioner in the courts of Tennessee which they would not
have in Georgia, and petitioner alleges that this is the sole reason why this action was
instituted in Hamilton county, Tenn., and said bill, as petitioner alleges, was prepared and lay
in wait for petitioner, who occasionally visits Chattanooga, and that when it was learned by
the defendants herein that petitioner was in Hamilton county, Tenn., the same was filed and
served upon him in an effort to take the advantage which the defendants herein believe to
exist in their favor by reason of the action having been brought in Tennessee, where
petitioner will be required to produce his proof in a foreign jurisdiction and prove the law
of Georgia as a substantive fact, employ foreign counsel, and be subjected to much
annoyance for which there is no relief against the defendants herein * * *.'" 97 S.E. 673.
in Tennessee, where petitioner will be required to produce his proof in a foreign jurisdiction
and prove the law of Georgia as a substantive fact, employ foreign counsel, and be subjected
to much annoyance for which there is no relief against the defendants herein * * *.' 97 S.E.
673.
Citing a number of authorities from other states, the Supreme Court of Georgia wrote its
own syllabus as follows:
The courts of one state may take jurisdiction of a transitory cause of action originating in
another state, when the defendant has been locally found and served, although both parties are
at the time domiciliary residents of a foreign state. When both parties to an action in a sister
state are domiciled in another, the courts of equity in the latter may act in personam and direct
the parties by injunction to proceed no further in such suit. But in such case the power is not
exercised capriciously, nor merely to compel litigants to use the courts of their own state, nor
even because the complainant has good reason to apprehend a less favorable result for
himself in a foreign court. And in such case it is necessary to show that the purpose, or
necessary effect, of such action is to obtain an unconscionable or inequitable advantage to
which the plaintiff therein would not be entitled in the domicile of the parties. * * *
Applying the foregoing principles to the allegations of the petition as amended in this
case, the plaintiff failed to allege a cause of action for injunctive relief. 97 S.E. 673.
[Headnote 9]
(8) The trial court gives a further reason for its injunction as follows:
Defendant Brunzell seeks to harass and annoy plaintiff in the California forum by
attempting to apply California law to the Nevada contract and the Nevada cause of action, to
avoid the application of Nevada law to what is exclusively a Nevada problem. Defendant
Brunzell seeks to harass and annoy plaintiff by placing upon plaintiff the burden of
attempting to establish and prove Nevada law and Reno, Nevada ordinances to the
satisfaction of a California Court and California Judge who are entirely unfamiliar
therewith.
Nevada law and Reno, Nevada ordinances to the satisfaction of a California Court and
California Judge who are entirely unfamiliar therewith. In so doing, defendant Brunzell is
attempting to subject plaintiff Harrah's Club to inconvenience and unnecessary expense and
to the uncertainty which necessarily accompanies the trial of a case in a forum not familiar
with local conditions and local laws and ordinances.
In the main, such reason has been rejected, supra. In addition, we refer to our extended
quotation supra from Brunzell v. Harrah's Club, 225 Cal.App.2d 734, 37 Cal. Rptr. 659, 663,
holding that * * * Harrah's Club's representative in Los Angeles, in effect, wrote into the
contract provisions that the laws of California shall govern the contract insofar as
subcontractors and safety provisions are concerned. See also McDaniel v. Alford, supra, and
Evans v. Morrow, 234 N.C. 600, 68 S.E.2d 258, where the Supreme Court of North Carolina
said (citing authorities):
A court of equity will not enjoin judicial proceedings in the court of another state through
distrust of the competency of such court to do justice in cases within its jurisdiction.
[Headnote 10]
(9) A further ground for the injunction contains repeated statements of Brunzell's
annoyance and harassment of Harrah, particularly by repetitious, contradictory and
ill-founded pleadings in its Complaint * * * artificially conceived * * * for the purpose of
simulating issues against California residents to lend color to the claim of defendant Brunzell
that the proper forum for the trial of the action is in Los Angeles, California. * * *
But, primarily, the sufficiency of the complaint against Harrah and the personal California
defendants was tested by the Superior Court of Los Angeles County, California, which found
it sufficient by overruling the demurrer of defendant William C. Wagner.
[Headnotes 11, 12]
(10) The next reason for the injunction is the expense, risk and inconvenience to Harrah,
the establishment of its defense by depositions, the transportation of witnesses, experts
and counsel to California, the establishment in California of Nevada law and Reno
ordinances, the hardship of a trial in two states, and the difficulty of proving Nevada
matters to a California court.
its defense by depositions, the transportation of witnesses, experts and counsel to California,
the establishment in California of Nevada law and Reno ordinances, the hardship of a trial in
two states, and the difficulty of proving Nevada matters to a California court. These have
been heretofore disposed of. Evans v. Morrow, 234 N.C. 600, 68 S.E.2d 258. But the court
below says.: Further, said plaintiff Harrah's Club will face the inconvenience and hardship of
trial in two states * * *. This is hardly true. A citizen of a state has an undeniable right to go
into another state or country to pursue such remedies and secure such relief as may there be
available. 28 Am.Jur., Injunctions 214, page 720. Courts are reluctant to interfere with the
exercise of such right. Application for an injunction against proceeding in a foreign
jurisdiction raises not so much a question of the power of the court to grant the remedy as the
propriety of doing so in the particular case. Id. In the present instance the fact was that the
only state in which Brunzell could find and sue the personal defendants was California. They
all lived in Los Angeles County, California. After the Superior Court's order quashing service
on Harrah's Club, Inc., was reversed, all defendants were subject to the California
jurisdiction. To all intents and purposes the case is at issue there. Harrah will not face two
trials, but only the one trial in California. Its whole complaint seems to be that it would
receive fairer treatment, and at less expense, in a Nevada court. Brunzell insists that if can get
complete relief against all defendants in California alone; that unless the injunction is
dissolved, it faces two suits, one defending against Harrah's action in Nevada and one against
the California defendants in California, in an action in tort growing out of the same contract.
This contention appears to be well taken.
(11) This ground for the injunction is based on the lack of California jurisdiction over
Harrah's Club, Inc., in accordance with the Superior Court's order quashing service on that
corporation. However, as we have seen, that order was reversed by the Court of Appeal.
It will be remembered that the court's Statement and Order" recited that it was inclined
to grant the motion for an order dissolving the injunction, unless the defendants in the
California action "agreed to appear in the State of Nevada and accept service in this state
unconditionally."6
[Headnote 13]
and Order recited that it was inclined to grant the motion for an order dissolving the
injunction, unless the defendants in the California action agreed to appear in the State of
Nevada and accept service in this state unconditionally.
6

[Headnote 13]
Brunzell contends that because the appearances of the California personal defendants
had not been filed at the time its motion to dissolve the injunction was argued and submitted,
the court was not justified in basing its order on such later filing. We must reject this
contention. The matter was in the bosom of the court until its order was filed.
We hold that the injunction restraining Brunzell from prosecuting the California action is
not justified by the reasons recited by the court below (which are called findings, but are for
the most part conclusions) or by the briefs of respondent, and that the injunction order must
be reversed.
Other matters discussed in the briefs have had our full consideration but do not require
further discussion here.
In addition to the appeal, Brunzell filed (No. 4927, State ex rel. Brunzell v. Second
Judicial District Court) while this appeal was pending, a petition for a writ of mandamus or,
in the alternative, for a writ of certiorari directed against the district court. In view of the
foregoing, such petition does not require our attention. A return date on the alternative writ
was set for June 29, 1965, being the same date as set for oral argument of this appeal. Both
were argued and submitted. An order is being entered dismissing the same.
The attempted appeal from the order denying appellant's motion for a stay of the Nevada
proceedings is dismissed.
The order of December 24, 1964, refusing to dissolve the temporary injunction of August
23, 1963, against Brunzell is reversed with costs. Such costs shall not include the copies of
the numerous briefs filed in the trial courts, appearing in the record on appeal.
____________________

6
The sufficiency of the appearance of the California personal defendants is not attacked by appellants, and
is not considered in this opinion.
include the copies of the numerous briefs filed in the trial courts, appearing in the record on
appeal.
Zenoff, D. J., and Breen, D. J., concur.
____________
81 Nev. 431, 431 (1965) Beasley v. State
MILTON NORRIS BEASLEY, Appellant, v.
No. 4816
August 18, 1965 404 P.2d 911
Appeal from a conviction of murder in the first degree, Eighth Judicial District Court,
Clark County; John C. Mowbray, Judge.
The defendant was convicted of murder in the first degree. The trial court rendered
judgment, and the defendant appealed. The Supreme Court, Collins, D. J., held that the
failure to supply defendant with transcript of separate trial of codefendants or to continue
defendant's trial until transcript was furnished was prejudicial error, where defendant had
previously been determined indigent, he was originally to have been tried jointly with
codefendants but had secured a severance, and issues and witnesses in the two trials were
substantially the same. The court also held that it was prejudicial error to permit fingerprint
expert to express opinion as to the time the defendant's finger and palm prints were placed on
victim's automobile, where expert had not conducted a control test.
Reversed and remanded for a new trial.
Robert Santa Cruz, Singleton and De Lanoy, and Rex A. Jemison, of Las Vegas, for
Appellant.
Harvey Dickerson, Attorney General; Edward G. Marshall, District Attorney, for
Respondent.
1. Costs; Criminal Law.
The failure to supply defendant with transcript of separate trial of codefendants or to continue defendant's
trial until transcript was furnished was prejudicial error, where defendant had previously been
determined indigent, he was originally to have been tried jointly with codefendants
but had secured a severance, and issues and witnesses in the two trials were
substantially the same.
had previously been determined indigent, he was originally to have been tried jointly with codefendants but
had secured a severance, and issues and witnesses in the two trials were substantially the same.
2. Criminal Law.
It was prejudicial error to permit fingerprint expert to express opinion as to the time the defendant's finger
and palm prints were placed on victim's automobile, where expert had not conducted a control test.
3. Criminal Law.
In order for an expert fingerprint witness to express an opinion as to when fingerprints were placed on a
given object, a control test must first be conducted; in a control test a series of latent fingerprints are
placed on a surface and controls are placed on all governing factors such as air, humidity, dust, and heat in
order to determine how long the prints would remain on a given surface and could be dusted out.
4. Criminal Law.
Accused was not denied his right to consult with his lawyer and Nevada police officer was properly
permitted to testify as to oral admissions made by defendant while in police custody in California, where
process never shifted from investigatory to accusatory during interrogation, no criminal action had been
filed in Nevada and no process had been issued, defendant was released after interrogation and was not
rearrested as an accused until several months later, and statements elicited were not per se incriminating.
5. Criminal Law.
Statements made to state's witness by a person in presence of defendant were not inadmissible hearsay,
where defendant took some part in the conversation.
6. Witnesses.
The refusal, on ground of remoteness, to permit cross-examination of state's witness as to whether he had
used narcotics for two-year period prior to conversation was not error, where the witness had been allowed
to state that he had been using narcotics for one year prior to the conversation.
7. Witnesses.
The refusal, on ground of remoteness, to require state's witness, who had been a narcotics user, to bare his
arm to the jury for evidence of fresh needle marks or scars as requested by defendant's counsel on
cross-examination was not error, where the witness was an important witness to the state but was not the
principal witness.
8. Witnesses.
A trial court has wide discretion in the extent of cross-examination of a witness; facts too remote in point
of time or matters too far removed from scene of transaction fall within the same discretion.
9. Criminal Law.
Jury's observation of a box top of a Beretta pistol which an expert had testified was the kind of gun which
killed homicide victim and which had been marked for identification but had not been admitted in
evidence was not error, where trial court properly and effectively admonished the
jury to disregard the box top until it was admitted in evidence.
had not been admitted in evidence was not error, where trial court properly and effectively admonished the
jury to disregard the box top until it was admitted in evidence.
10. Witnesses.
Testimony of state's witness that defendant accused of first-degree murder had purchased automobile
from witness shortly after death of victim was properly admitted in that the testimony corroborated that of
another state's witness as to what defendant had told the other state's witness.
Record did not sustain defendant's complaint that he was deprived of due process of law for failure of
court to speedily appoint counsel following his arrest.
12. Criminal Law.
Statements which defendant had made to witnesses and which implicated defendant in the killing were
admissible in homicide case in that they were inconsistent with defendant's position that he was not guilty
and were voluntary and were not induced by compulsion, fraud, duress, or force, and defendant suffered no
unconstitutional infringement on his right to remain silent, and he was not entitled to cautionary instruction
that hearsay testimony is unreliable and should be viewed with distrust.
OPINION
By the Court, Collins, D. J.:
This is an appeal from a conviction of first degree murder, for which appellant was
sentenced to life imprisonment without possibility of parole.
William T. Green, the victim, was an informer for the Narcotics Division, United States
Treasury Department. He was shot and killed at approximately 9:30 p.m., August 11, 1961, in
his automobile parked in the 1500 block of North C Street, Las Vegas, Nevada. Green, as an
informer, had purchased narcotics from persons known as Harris, Patterson, and Valrie, and
except for his death, would have been a witness against them in a pending trial.
By information, appellant Beasley, one Black, Harris, Patterson, and Valrie were charged
with the murder of Green and for conspiracy to commit the murder. Black was dismissed as a
defendant. Patterson pleaded guilty to second degree murder, leaving appellant, Harris and
Valrie to be tried. Appellant Beasley's motion for a separate trial was granted. Harris and
Valrie proceeded to trial which resulted in a "hung jury."
trial which resulted in a hung jury. They were retried and acquitted.
Appellant cites eleven prejudicial errors occurring during the trial and asks either a new
trial or a reversal of the conviction and discharge of the defendant.
The errors alleged are:
1. Judge Mowbray erred in overruling the order of Judge Sexton which ordered that a
copy of the transcript of prior proceedings be prepared at county expense for the defendant
prior to the start of trial.
2. The Court erred in permitting Ron E. Davis to express an opinion as to the time the
defendant's fingerprints were placed upon the victim's automobile.
3. The Court erred in permitting Lt. Handlon to testify as to oral admissions of the
defendant while the defendant was illegally detained and deprived of the right of counsel.
4. The Court erred in permitting Ruby Talley to testify as to hearsay statements of Vase
Valrie.
5. The Court erred in not permitting defense counsel to inquire as to how long certain
prosecution witnesses had been addicted to heroin.
6. The Court erred in permitting DeWayne Wolfer to testify at great length as to the kind
of .25 caliber pistol which was used in the crime.
7. The Court erred in permitting Leonard Eagle to testify as to a purchase of an
automobile by the defendant after the commission of the crime.
8. The Court erred in withdrawing Instruction No. 27 after argument to the jury and giving
in its place an instruction which failed to admonish the jury that no inference of guilt be
drawn from the silence of the defendant.
9. The defendant was deprived of due process by reason of the failure of the Court to
speedily appoint an attorney following arrest.
10. The defendant suffered an unconstitutional infringement upon his right to remain
silent.
11. There was insufficient legally admissible evidence to support a conviction.
Certain of these errors are prejudicial requiring a reversal and retrial.
reversal and retrial. They will be discussed in the order appearing above.
[Headnote 1]
1. At the commencement of the trial on February 3, 1964, Judge Mowbray denied
appellant's motion for continuance. The motion was based on failure to comply with an order
of Judge Sexton, entered December 13, 1963, that appellant be supplied with a copy of the
transcript of the trial of Harris and Valrie. Appellant had previously been determined
indigent. He was originally to have been tried jointly with Harris and Valrie but had secured a
severance order that he be tried separately. The issues and witnesses in the two trials were
substantially the same.
Judge Sexton had jurisdiction to enter his order. Failure to supply the transcript or
continue the trial until it was furnished is prejudicial error. This Court has previously passed
upon the point. Marshall v. District Court, 80 Nev. 478, 396 P.2d 680. This result is
compelled by the principle announced in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100
L.Ed. 891.
[Headnotes 2, 3]
2. Ron E. Davis, a witness for the State, was permitted to express an opinion to the jury
that he found several finger prints and one palm print of appellant Beasley on the victim's
automobile. He was also allowed, over objection, to express an opinion as to the time these
prints were placed there. The latter ruling is claimed to be prejudicial error.
The evidence clearly established witness to be an expert in lifting, identifying and
comparing finger prints. The trial court was entitled to allow him to express an opinion as to
the finger and palm prints of appellant found on the automobile. He should not, however,
have been allowed to express his opinion as to the time they were placed there.
In order for an expert finger print witness to express an opinion as to when finger prints
were placed on a given object, a control test must first be conducted. In a control test a
series of latent finger prints are placed on a surface and controls are placed on all
governing factors such as air, humidity, dust, and heat in order to determine how long the
prints would remain on a given surface and could be dusted out.
placed on a surface and controls are placed on all governing factors such as air, humidity,
dust, and heat in order to determine how long the prints would remain on a given surface and
could be dusted out. Similarly, other factors such as the oiliness of the skin of the fingers and
palms, physical condition of the skin of the person making the impression, surface of the
object touched, heat and other obscuring factors have an effect on the time they were placed
there. The witness admitted on voir dire examination he had not conducted a control test and
in order to state positively as to the time a print was placed on a given object he would have
to conduct it.
There are limits to opinions an expert may be allowed to testify. Section 780, 20 Am.Jur.,
Evidence, at 651, states these limits:
. . . Furthermore, the facts on which an expert opinion is based must permit of reasonably
certain deductions as distinguished from mere conjectures. Notwithstanding a tendency
toward the extension of the field of admissibility of expert testimony which is based upon
established or generally recognized scientific principles or discoveries, it is essential that the
principle or discovery from which a deduction is to be made shall have been sufficiently
established to have gained general acceptance in its particular field of science.
This Court ruled in Levine v. Remolif, 80 Nev. 168, 390 P.2d 718, 720, that an expert
witness may not give an opinion if . . . his conclusions to a substantial degree were a result
of guess work. The identical circumstance is present here when Ron E. Davis was allowed to
express an opinion as to the time appellant's finger and palm prints were placed on Green's
automobile. To allow him to so testify was prejudicial error.
[Headnote 4]
3. Appellant urges that error was committed when Lt. Handlon, a state's witness, was
permitted to testify as to oral admissions made by appellant while in police custody in Los
Angeles. On the record before us, we do not consider these circumstances to be error.
William Green, the victim, was murdered in Las Vegas the evening of August 11, 1961.
the evening of August 11, 1961. Appellant Beasley was taken into custody in the early
morning hours of August 15 in Los Angeles. He was held at the Los Angeles Police Station
until the late evening of August 17 when he was released. While thus detained he was
interrogated by Lt. Handlon of the Las Vegas Police Department and other officers, state and
federal. Lt. Handlon was permitted to testify to his conversation with appellant over objection
of his counsel.
The statements consisted substantially of the following:
He had checked into the Carver House alone and had used the name of Joe Brown; he had
stayed at the Melody Motel in Los Angeles. He refused to tell Lt. Handlon where he left his
automobile. He stated he drove his Chrysler to Las Vegas, stayed at the Carver House,
signing the name of Joe Brown, and several men and girls had visited him. He denied
knowing the hotel clerk, Bates, and denied that he asked Bates where to find Green. He later
admitted that he knew Green, but had had no contact with him in Las Vegas and had just said
hello to him. He stated he had seen Green once at a gambling house, but there had been no
contact; he did not know what kind of car Green drove. He stated he left Las Vegas about
7:00 o'clock, arriving in Los Angeles at 11:00 o'clock and went to the Red Hut on
Washington Street.
A hearing was held outside the presence of the jury at which time appellant Beasley
testified he had requested the right to call attorney Barnes at the time of his booking, but was
not permitted to do so. He also testified he was given no food for three days except for one
meal. The trial judge specifically found against him on these statements and such finding
should be accepted here.
Lt. Handlon testified he advised appellant of his constitutional rights on each of three
occasions he talked with him while in custody. The only record of the first two conversations
is the recollection of Lt. Handlon and appellant. The third conversation was recorded on
magnetic tape and was received in evidence. At the time of the third conversation, appellant
Beasley had conferred with a lawyer and refused to answer any questions except to say,
"talk to my attorney."
of the third conversation, appellant Beasley had conferred with a lawyer and refused to
answer any questions except to say, talk to my attorney.
Appellant urges strongly the statements or admissions should not have been received in
evidence under the doctrine of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d
977. The Escobedo case has been construed by this Court, Morford v. State, 80 Nev. 438, 395
P.2d 861; Bean v. State, 81 Nev. 25, 398 P.2d 251, and has its limits. One of those limits is
stated by the Supreme Court of the United States to be, We hold only that when the process
shifts from the investigatory to the accusativewhen its focus is on the accused and its
purpose to elicit a confessionour adversary system begins to operate, and, under the
circumstances here, the accused must be permitted to consult with his lawyer.
During the entire time Lt. Handlon was interrogating appellant, the process never shifted
from the investigatory to the accusative. No criminal action had yet been filed in Nevada; no
process issued. The conclusive factor is that appellant was completely released two days later,
August 17, 1961, and not rearrested as an accused until several months later. Furthermore, we
do not feel the statements elicited were per se incriminating.
We do not mean to be understood that police officers are in the slightest way exempted
from the mandates of the United States Supreme Court or this Court in respecting the rights
of persons accused of crime. We urge a tightening up of their procedure and the exercise of
the highest skill in their investigation and accusatory processes to insure that persons lawfully
arrested for crime will not escape punishment on technical procedures of interrogation.
[Headnote 5]
4. Did the Court err in permitting a state's witness, Ruby Talley, to testify to statements
made to him by one Vase Valrie in the presence of appellant, in which conversation appellant
took some part, and were such statements by Vase Valrie hearsay?
The record indicates Vase Valrie and appellant went to the home of Ruby Talley in San
Francisco, California.
Valrie introduced Beasley to Talley and commenced a conversation about the victim Green.
Over the objection of appellant that it was hearsay testimony, the trial court allowed Talley to
repeat the entire conversation. Most of what was said to Talley appears from the record to
have been said by Valrie, however Beasley did inject statements from time to time. It was
apparent that Talley was previously acquainted with Valrie, but not Beasley because he
testified Valrie introduced Beasley to him.
Valrie asked Talley if he had seen Green; that he was looking for Green because he felt
Green could help him in a case pending; and that Green might be hiding.
Talley answered he had not seen him around San Francisco.
Beasley, according to Talley's belief, stated he had not saw [seen] him (Green) around
Oakland.
In answer to a question by the District Attorney about a beauty shop owned by Green's
mother in Santa Cruz, the record reflects the following testimony of Talley:
Q. And what did Beasley and Valrie say about that, if anything?
A. Valrie knew of it, I believe.
Q. Did Beasley say anything about that?
A. Just generally.
Q. Just generally?
A. I can't be sure, he was just there during the conversation and in agreement.
Q. What did he say?
A. I don't know exactly what he said.
The record indicates another question to Talley by the District Attorney:
By Mr. Marshall: Q. Will you tell us how the conversation ended?
A. That if I should see Green I was to contact Harris and Beasley and Valrie were in close
contact with each other, if I should see Beasley to let him know.
It was not indicated by the witness who said those words, whether Valrie or appellant, but
both were there. There was no cross-examination by appellant's counsel to clarify the speaker.
Under the circumstances, it could have been either and this Court will not presume to say it
was Valrie instead of appellant who made the statement.
have been either and this Court will not presume to say it was Valrie instead of appellant who
made the statement.
Appellant urges any testimony of Valrie should be excluded as hearsay under the doctrine
of People v. White, 44 Cal.App.2d 183, 112 P.2d 60. From the record quoted above it would
be impossible to eliminate Valrie's statements, but yet leave before the jury the statements of
Beasley, which are clearly admissible. The rule stated in 20 Am.Jur., Evidence 555, at 467,
therefore controls. It states:
An objection that a statement is hearsay is not available as to a statement made in the
presence of the party against whom the statement is offered in evidence and in a conversation
in which he took part.
The trial court made no error in admitting the testimony.
[Headnotes 6, 7]
5. Appellant contends that it was error for the trial court to limit cross-examination of
certain of the state's witnesses on the length of time they had been addicted to narcotic drugs.
Ruby Talley and Billy DeWayne Reed were both called as witnesses for the state. The
evidence indicated both had, at one time or another, used and were addicted to narcotic drugs.
Appellant's counsel sought to cross-examine Talley whether he had been using narcotics
for a period of two years prior to his conversation with Vase Valrie and Beasley. The court
allowed the witness to state he had been using narcotics for one year prior to the conversation
but sustained an objection to the two-year period as being remote.
The court refused to require witness Reed to bare his arm to the jury for evidence of fresh
needle marks or scars as requested by appellant's counsel on cross-examination.
Both rulings are challenged as error under the doctrine of Effinger v. Effinger, 48 Nev.
205, 209, 228 P. 615, 239 P. 801.
The record indicates the trial court permitted extensive cross-examination of both
witnesses as to their felony criminal records, their habitual use of narcotics, their poor moral
character and other impeaching evidence which would tend to render them less worthy of
belief by the jury.
their poor moral character and other impeaching evidence which would tend to render them
less worthy of belief by the jury.
It is true the Effinger case, supra, at page 215 of the Nevada Report, holds that an expert
witness could be called to testify that, The mental confusion and impairment of moral
character produced by the habitual use of morphine, cocaine, or a like narcotic are established
facts in medical research. That such may be shown for the purpose of affecting the credibility
of a witness is also well established. State v. Fong Loon, 29 Idaho 248, 158 P. 233. We
reaffirm the Effinger holding. But that is not the issue here. No expert witness was called for
such purpose whose testimony the trial court refused to allow to the jury.
[Headnote 8]
A trial court has wide discretion in the extent of cross-examination of a witness. Facts too
remote in point of time or matters too far removed from the scene of the transaction fall
within that same discretion. 20 Am.Jur., Evidence 249, at 243. Smittle v. Illingsworth, 373
P.2d 78, 80 (Okl. 1962). State v. Satterfield, 132 P.2d 372 (Mont. 1943).
It is not the fact that the trial court permitted no cross-examination on these subjects, but in
its discretion, limited it because of remoteness. There was no abuse of discretion.
Appellant cites the case of People v. Lewis, 25 Ill.2d 396, 185 N.E.2d 168, which reversed
a conviction because the trial court refused to require one witness to remove his coat and
display his arm to the jury for needle marks and scars as evidence of use of narcotics. There,
however, that witness was the principal witness for the state and the conviction stood or fell
upon the credibility of his testimony. Such is not the case here. Reed was an important
witness to the state, but not the principal witness. Upon a retrial, it might be desirable to
allow greater latitude in that area of cross-examination. But we cannot say it was error not to,
as shown by the entire testimony, both direct and cross, of these two witnesses.
[Headnote 9]
6. Appellant complains it was error for the trial court to allow state's witness DeWayne
Wolfer to testify the kind of gun which killed Green was a.25 caliber Beretta type
semi-automatic pistol. The witness qualified as an expert on firearms, conducted extensive
tests on various exhibits admitted in evidence and came to the above conclusion to which he
was allowed to testify before the jury. The error complained of creeps in when a box top of a
Beretta pistol, marked for identification, but never admitted in evidence, was observed by the
jury. But the court properly and effectively admonished the jury to disregard the box top until
it was admitted in evidence. It was never admitted. We find no error.
[Headnote 10]
7. Appellant contends it was error for the trial court to allow Leonard Eagle, a state's
witness, to testify that appellant purchased an automobile from him shortly after Green was
killed. He says such evidence can be material only upon proof of three factors:
(1) The prior impecunious state of the defendant.
(2) The sudden acquisition of wealth.
(3) The logical connection between the crime and the acquisition of funds.
He cites as authority Neal v. United States, 102 F.2d 643, Annot., 123 A.L.R. 119, and
Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509.
Another state's witness, Billy DeWayne Reed, testified he had a conversation with
appellant Beasley in the Los Angeles County Jail in approximately January, 1962, while they
were both in custody. Reed said Beasley told him in the conversation, . . . he was given
$2,000.00 in front and the balance of the money after the job was completed or the killing (of
Green) was completed. Reed also said Beasley told him, . . . he went up north, and he
bought him a new Cadillac and he was going to parties and spent money and bought him a
1961 black Cadillac with red upholstery.
Eagle was allowed to testify, over appellant's objection, that he had a conversation with
Beasley in Los Angeles on August 13, 1961, that Beasley was interested in purchasing an
automobile, a 1960 Cadillac, and in a short time consummated the transaction.
Angeles on August 13, 1961, that Beasley was interested in purchasing an automobile, a 1960
Cadillac, and in a short time consummated the transaction.
The testimony of Eagle corroborated that of Reed as to what Beasley told him. 22A C.J.S.,
Criminal Law 530(1), at 232, defines corroborating evidence as follows:
Corroborating evidence supplementary to, and tending to strengthen or confirm, that
already given.
32A C.J.S., Evidence 1016, at 622, treats the subject of corroborating evidence thus:
Corroborative' or corroborating' evidence has been defined as additional evidence of a
different character to the same point; evidence which would tend to establish the disputed
facts by other circumstances; evidence which tends to confirm and strengthen, or to show the
truth or probability of truth of the testimony of a witness sought to be corroborated.
There was no error in admitting Eagles's testimony.
8. Appellant complained of error in the manner the jury was instructed and the inferences
to be drawn therefrom. We do not feel constrained to pass upon the contention in view of the
action we have taken above.
On the retrial of the appellant, however, we call to the attention of the trial court, and
particularly the District Attorney, the following authorities as to permissible limits of
comment on a defendant's failure to take the witness stand.
In Brooks v. District of Columbia, D.C.Mun.App., 48 A.2d 339 (1946), the Municipal
Court of Appeals for the District of Columbia said at 341:
Here defense counsel objected vigorously and immediately to the comment by the
prosecutor. The trial judge's only comment was Go ahead.' Defense counsel then again
demanded a mistrial be declared, but the trial judge only said again to the prosecutor Go
ahead.' It was later, that the judge for the first time instructed the jury on the subject.
We have reached the conclusion that under all the circumstances the incident constituted
such prejudicial error as calls for a reversal of the judgment. By the trial judge's failure to
rebuke the prosecutor immediately for his remarks and by his waiting until after
argument to even mention the law on the subject, we believe that the right of the
defendant to a fair trial was invaded.
judge's failure to rebuke the prosecutor immediately for his remarks and by his waiting until
after argument to even mention the law on the subject, we believe that the right of the
defendant to a fair trial was invaded. The case is different from those involving behavior of
prosecutors not covered by statute. The law forbids any comment being made regarding the
failure of the defendant in a criminal case to take the witness stand. All prosecutors are
thoroughly familiar with this rule. To say that it may be violated with impunity and the
violation cured by a mere routine instruction is apt, we fear, to encourage further violations.
We are unwilling to give such encouragement.
In Smith v. United States, 9 Cir., 268 F.2d 416, the Ninth Circuit Court of Appeals held on
page 420:
. . . Error is also predicated upon the failure of the trial court to make plain to the jury, by
admonition to the United States Attorney or specific instruction to the jury, that a defendant is
not required to produce evidence against himself or in his defense and that the failure of
defendant to testify cannot be commented upon or referred to in argument.
2

In Coleman v. Denno, 223 F.Supp. 938, 944 (N.Y. 1963), affirmed 330 F.2d 441, the
District Court said:
Thus, in New York a mere indirect allusion to failure to take the stand is not in itself
grounds for invalidating a guilty verdict if the trial judge has taken appropriate steps to rectify
any misapprehension which may have arisen in the minds of the jury. Indeed, it is the duty of
the court promptly to interrupt a prosecuting counsel who should so far forget himself and the
duties of his office as to attempt to make use of the fact in any way to the prejudice of a
person on trial.' Ruloff vs. People, supra, 45 N.Y. at p. 222. The question is whether under all
the circumstances an improper allusion of this character affected the fundamental
fairness of the trial or might have influenced the jury against the accused."
____________________

2
While there was a general instruction buried among the rest that defendants had a right to elect not to take
the witness stand and that the jury should draw no unfavorable inference against them that account, this
instruction was not sufficiently connected nor sufficiently forceful to overcome the reference by the prosecuting
attorney to defendants and their failure to rebut the evidence against them. Wilson v. United States, 149 U.S. 60,
13 S.Ct. 765, 37 L.Ed. 650.
all the circumstances an improper allusion of this character affected the fundamental fairness
of the trial or might have influenced the jury against the accused.
[Headnote 11]
9. Appellant complains he was deprived of due process of law for failure of the court to
speedily appoint counsel following his arrest. We have examined the record closely on this
point and find no merit to this contention.
[Headnote 12]
10. Did appellant suffer an unconstitutional infringement upon his right to remain silent?
The trial court permitted state's witnesses Callie Mae Watson, Edgar Richard Lewis, Carl
Fulton and Billy DeWayne Reed to testify to certain admissions made by appellant over the
objection the statements were hearsay. Appellant contends these were admissions of a party
as distinguished from admissions against interest, and that being admissions of a party were
not admissible until the appellant waived his right to remain silent. Appellant never took the
witness stand.
Appellant told Callie Mae Watson he was a gangster.
In August, 1961, after Green was killed, appellant and Edgar Richard Lewis had a
conversation in Los Angeles which was testified to verbatim by Lewis as follows:
A. Well, it so happened that when I came into the place Beasley was at the bar drinking a
soft drink and I came over and he spoke to me and I spoke to him and I asked how everything
was going and he said okay. He asked me if I saw the papers where he had been picked up
concerning the Green affair and I told him I had heard about it but was not sure it was him. In
turn he said it was him and that they didn't have anything on him unless he told something on
himself.
In January, 1962, while appellant was in jail in Los Angeles, he had a conversation with
Billy DeWayne Reed, a witness called by the state. Following is a verbatim report of the
testimony allowed to go before the jury: "By Mr.
By Mr. Marshall: Q. Mr. Reed, will you tell us what was said in this conversation
between you and Mr. Beasley?
By Mr. Santa Cruz: Your Honor, we want questions and answers.
By Mr. Delanoy: We object on the ground that it is hearsay, Your Honor.
By the Court: The objection will be noted and the objection is overruled and counsel's
suggestion will be followed. We want the exact conversation as nearly as this defendant
canor this witness can remember.
By Mr. Marshall: Q. I want you to tell us what Mr. Beasley said and what you said, or
what you asked Mr. Beasley and what Mr. Beasley answered.
A. I said to Mr. Beasley, I see that you made headlines,' and he told me, he laughed and
he said, Yes,' and I asked him what happened? and he said that Patterson, Valrie and Dickie
Black had called a meeting to kill an informer who testified in a narcotic trial, and he said that
he was offered four thousand or five thousand to do the killing. He was given, he said, he was
given $2,000 in front and the balance of the money after the job was completed or the killing
was completed.
Q. Was there any conversation concerning who this informant was?
By Mr. Santa Cruz: Object to leading the witness, Your Honor.
By the Court: Sustained.
By Mr. Marshall: Q. All right, would you state what conversation there was, if any, with
regard to this informant?
By Mr. Santa Cruz: Again leading the witness, Your Honor.
By Mr. Marshall: Q. What was the balance of the conversation, if any?
A. He said that he and Dickie Black came to Las Vegas to see Green, he said that Green
had come down from San Francisco as an informer and he was introduced to another fellow
by the name of Walter Morris.
By Mr. Santa Cruz: What was that name?
A. Walter Morris, and Walter Morris was seen riding around with the fellow informer.
He said that he came to Las Vegas, him and a fellow by the name of Dickie Black, and he
tricked Green out of the hotel by the name of Carver House into the car. Dickie Black was
supposed to be in the front seat of the car and he tricked Green into the car and he got in the
back seat of the car. They was talking to Green, then he got out and got out of the car for
some reason and came back and leaned on the front door of the car and talking to him and
then shot him.
Then he had taken me around on the conversation of how he went up north and he bought
him a new Cadillac and he was going to parties and spent money and bought him a 1961
black Cadillac with red upholstery, he said. And he was awfulhe said that he was awful
mad because
By Mr. Santa Cruz: We can't hear the witness.
By the Court: Speak up.
By the Witness: He said he was mad because he was given the two thousand in front and
didn't get the rest of the money after he did the job and that if things would happenthat they
knowed that they shouldn't cross him like that by not giving him the rest of his money.
By Mr. Marshall: Q. What other conversation, if any, was there concerning the manner in
which Green was killed or was to be killed?
By Mr. Santa Cruz: Object to leading, he has already testified to that matter, Your Honor.
By Mr. Marshall: Q. Do you recall any further conversation at all?
A. Yes.
Q. Relate that, please.
A. First he was telling me howhe said that the first method they was going to use to
kill, an idea by Valrie, to give a shot, a hot shot of narcotics, a pure shot of narcotics, heroin,
and they reneged on that and decided to shoot him.
Q. Was this narcotics in any way described? "By Mr.
By Mr. Santa Cruz: I object to leading the witness, Your Honor.
By Mr. Marshall: Q. Did Mr. Beasley describe these narcotics at all?
By Mr. Santa Cruz: Your Honor, we object to leading this witness, we want conversation,
not any leading and suggestive questions.
By Mr. Marshall: Q. What conversation, if any, was held concerning the description of
the narcotics?
By Mr. Santa Cruz: Object to leading, Your Honor.
By Mr. Marshall: Q. Was there any remaining conversation?
A. Yes.
Q. What was it?
A. The only thing I can remember him saying was that the narcotics was in a balloon, that
is all I can remember about that.
By Mr. Marshall: No further questions.
Next, the state called Carl Fulton as a witness who testified before the jury he had a
conversation with appellant Beasley at a sandwich stand in the 2700 block, Western Avenue,
Los Angeles, during December, 1961. The verbatim transcript of Fulton's testimony is as
follows:
A. I entered the stand, you know, it is an open place, and I saw Beasley and I said, Say,
man, I heard you got into, you know, some trouble,' and he said, It is nothing; it is nothing.'
And I said, What happened?' and he said, I did to a snitch what should be done to all
snitches.' And I said, What was that?' and he said, I shot him in his mouth,' and the
conversation ended and so I told him Is that your car?' and he said, Yes,' and started talking
about the car and he said he was going to New York or something to get a new car.
1
Appellant urges the above testimony inadmissible against him under the doctrine of
Griffin v. California, {decided April 2S, 1965) 3S0 U.S. 609, S5 S.Ct.

____________________

1
On cross-examination of Fulton by appellant's counsel, it was bought out that Beasley was in jail in Los
Angeles the entire month of December, 1961, and could not have had the conversation with Fulton at the time
testified to by him. It is impossible to tell if the jury gave Fulton's testimony any credit.
Appellant urges the above testimony inadmissible against him under the doctrine of
Griffin v. California, (decided April 28, 1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106,
wherein the United States Supreme Court held the following instruction of the trial court to
be an unconstitutional infringement upon the right of the defendant to remain silent:
As to any evidence or facts against him which the defendant can reasonably be expected
to deny or explain because of facts within his knowledge, if he does not testify or if, though
he does testify, he fails to deny or explain such evidence, the jury may take that failure into
consideration as tending to indicate the truth of such evidence and as indicating that among
the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are
more probable.
Appellant also urges the only method of removing the infringement upon the constitutional
right to remain silent is to give a cautionary instruction that hearsay testimony is unreliable
and should be viewed with distrust. He quotes from People v. Bemis, 33 Cal.2d 395, 202
P.2d 82, 84:
The trial court did err, however, by failing to instruct the jury that evidence of the oral
admissions of defendant ought to be viewed with caution. The dangers inherent in the use of
such evidence are well recognized by courts and text writers.
The requirement of such instruction is by statute. We have no such statute in Nevada.
The theory is novel, but we do not believe it to be the law, either of Nevada or the United
States.
Jones on Evidence, 5th ed., Vol. 2, 334 at 630 and 631, states:
In contrast to declarations against interest under that exception to the hearsay rule,
statements or declarations previously made by a person now a party to the action are
admissible against him at the trial free of the limitations peculiar to the declarations against
interest' exception. . . .
When an out-of-court statement is offered in evidence against a party for the purpose of
proving the truth of the facts asserted in the statement it is readily apparent that the
hearsay rule is involved and the statement is thus exceptionally admitted.
of the facts asserted in the statement it is readily apparent that the hearsay rule is involved and
the statement is thus exceptionally admitted. Some authorities have treated admissions as
non-hearsay in character and outside the rule. But it is relatively unimportant whether we
accept one theory or another as the underlying basis for admissibility. The fact of
admissibility (on a broad base but with the definite limitation that the statement may be used
only against the party making it) is the important thing.
It is really not necessary to say that the statement must be against some interest of the
party, although it usually is. The real test is whether the statement is helpful to the adversary
offering it in evidence. If it does not help the cause of the adversary or hurt the cause of the
defendant in the action it is barred from use, as irrelevant, as only the adversary may offer it.
. . . Further, section 386 of Jones, at pages 635 and 636, states:
If testimony is of such a character as to constitute an admission of the party, it is not
necessary to lay a foundation for its reception by first asking the party if he has made such a
statement. Nor need the statement, at the time when it was made, appear to have been against
the interest of the party. The statement is admissible if at the time of the trial it is inconsistent
with the contention of the party who made it. It is admitted as substantive, and not merely as
impeaching, testimony.
The statements admitted were clearly inconsistent with appellant's position. He had
entered a plea of not guilty to the charge. Likewise, they were voluntary. There is no
evidence indicating compulsion, fraud, duress, or force which rendered them other than the
product of an essentially free and unconstrained choice by its maker. Culombe v.
Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037, 1057. We see no merit to this
contended error.
11. The final error contended by appellant is insufficient legally admissible evidence to
support a conviction, as to the trial as a whole. We deem it unnecessary to pass upon this
contention.
The conviction is reversed. Appellant is remanded for a new trial.
____________
81 Nev. 451, 451 (1965) Mullinix v. Morse
GEARLD J. MULLINIX and MARIE S. MULLINIX, His Wife, Appellants, v.
LEO V. MORSE and DOROTHY R. MORSE, His Wife, Respondents.
No. 4894
September 29, 1965 406 P.2d 298
Appeal from judgment of $6,278.73, Sixth Judicial District Court; Merwyn H. Brown,
Judge.
Vendors' action against purchasers for restitution of premises for breach of contract for
sale of real and personal property. From a decision of the lower court awarding vendors
damages, the purchasers appealed. The Supreme Court, Zenoff, D. J., held that vendors who
elected remedy of restitution and secured immediate possession were not entitled to damages
in form of payments which became due while purchasers were in possession but remained
unpaid at time of default or in form of proceeds of third party's promissory note to purchasers,
which were retained by purchasers when they should have been used to accelerate purchase
price payment, both items having been claimed to constitute breaches of contract.
Reversed.
Nada Novakovich, of Reno, for Appellants.
James A. Callahan, of Winnemucca, for Respondents.
1. Election of Remedies.
Damages and restitution are alternative remedies and election to pursue one is a bar to invoking the other
in a suit for breach of contract.
2. Ejectment; Replevin.
Damages, in addition to restitution, are limited to those cases where damages arise during period when
property is being wrongfully withheld from those who have right of possession.
3. Election of Remedies.
Vendors who elected remedy of restitution of premises for breach of contract for sale of real and personal
property and who secured immediate possession were not entitled to damages in form of payments which
became due while purchasers were in possession but remained unpaid at time of default or in form of
proceeds of third party's promissory note to purchasers, which were retained by purchasers when they
should have been used to accelerate purchase price payment, both items having been claimed to constitute
breaches of contract.
OPINION
In this action for restitution of premises for the breach of a contract for the sale of real and
personal property, the buyers, Gearld J. and Marie S. Mullinix, appeal from a decision of the
Sixth Judicial District Court awarding Leo V. and Dorothy R. Morse, sellers, $6,278.73
damages, plus costs.
On June 1, 1960, buyers entered into a written contract for the purchase of Rodeo Lanes, a
bowling alley in Winnemucca, and various equipment contained therein. The purchase price
of $179,000 was to be paid as follows:
a. $10,000 upon execution of the contract.
b. $10,000 on or before 60 days from date of the contract.
c. Appellants assumed the payments on several promissory notes.
d. The balance of $70,031.62 was to be paid in $500 monthly installments until June 1,
1962; thereafter, in $800 monthly installments at 6 percent interest.
Buyers further agreed to assign to the sellers the principal due on two promissory notes,
one for $10,000 executed by James J. Branscom and the other for $7,000 executed by John H.
and Lorraine C. Small. These payments were to be applied to the unpaid purchase price.
Buyers agreed to pay taxes on the real and personal property received under this contract and
to keep in force fire, public liability and property damage insurance on the premises, and to
keep the property free of liens.
Under the forfeiture clause of the contract, buyers agreed to relinquish all rights under
the contract and the money paid was to be considered rent for the use of the property and
as liquidated damages.
agreed to relinquish all rights under the contract and the money paid was to be considered
rent for the use of the property and as liquidated damages. If buyers failed to comply with the
agreement, and this failure continued for 15 days after written notice of default, they were to
vacate and surrender the premises on demand. Time was of the essence. The bill of sale, the
assumed notes, and the Branscom and Small promissory notes were all placed in escrow with
instructions that in the event of the buyers' default, after 15 days' notice, the documents were
to be delivered to the sellers.
On May 20, 1963, sellers served notice of default upon buyers, citing a delinquency in the
May 1, 1963, $800 installment payment; $200 on the Acree note; and $528.26 on the May 1,
1963 payment to the First National Bank of Nevada. They also claimed a failure to pay
insurance premiums, taxes and for repairs which caused liens to be placed on the premises for
material and labor.
On June 6, 1963, an action for restitution of the premises was commenced at which time
the buyers surrendered possession of the property. The stipulated sole issue before the trial
court, after restitution had been voluntarily given, was the ownership of the Branscom and
Small promissory notes. Below this stipulation agreement, an additional clause was placed
which read, Defendants (Appellants here) having hereby voluntarily surrendered possession
of the premises may put at issue in this action other matters of counter-claim or set-off. At
the time of default, buyers had paid $80,861.62 on the contract.
The lower court held that (1) the Branscom and Small promissory notes were to be
returned to the buyers, but the $1,000 paid thereon to the buyers was to be turned over to the
sellers; (2) that the sellers should be reimbursed for the payments, totaling $5,278.73, which
became due while the buyers were in possession, but remained unpaid at the time of default.
The buyers, Gearld J. and Marie S. Mullinix, appeal from this money judgment of $6,278.73
for the sellers.
The issue presented to the court is: Was the award of $6,278.73 by the lower court a
recovery in damages on breach of the contract of sale and, therefore, precluded by an
election of the remedy of restitution?
on breach of the contract of sale and, therefore, precluded by an election of the remedy of
restitution?
[Headnote 1]
The law is clear that damages and restitution are alternative remedies and an election to
pursue one is a bar to invoking the other in a suit for breach of contract. Alder v. Drudis, 30
Cal.2d 372, 182 P.2d 195 (1947); Jozovich v. Central California Berry Growers Ass'n, 6
Cal.Rptr. 617, 183 Cal.App.2d 216 (1960); 5A Corbin on Contracts 1223, at 482. The
Restatement of Contracts 381, is in accord.
Election Between Damages and Restitution. (1) When the alternative remedies of
damages and restitution are available to a party injured by a breach, his manifested choice of
one of them by bringing suit or otherwise, followed by a material change of position by the
other party in reliance thereon, is a bar to the other alternative remedy. (2) The bringing of an
action for one of these remedies is a bar to the alternative one unless the plaintiff shows
reasonable ground for making the change of remedy.
Our court has stated in Barringer v. Ray, 72 Nev. 172, 298 P.2d 933 (1956), that where a
man has a right to choose one of two modes of redress and the two are so inconsistent that the
assertion of one involves the negation or repudiation of the other, his deliberate and settled
choice of one, with knowledge or means of knowledge of such facts as would authorize a
resort to each, will preclude him thereafter from going back and electing again.
The sellers elected the remedy of restitution, filed suit therefor, and secured immediate
possession by temporary writ. By stipulation, the litigation was restricted to the ownership of
the Branscom and Small promissory notes. Thus, the sellers chose restitution and rejected any
claim for damages. The buyers had a right to rely on this fact and did so.
[Headnote 2]
The sellers' choice of remedy precludes an award of damages. Damages, in addition to
restitution, are limited to those cases where the damages arise during the period when the
property is being wrongfully withheld from those who have the right of possession.
period when the property is being wrongfully withheld from those who have the right of
possession. In McKelvey v. Rodriquez, 57 Cal.App.2d 214, 134 P.2d 870 (1943), the court
refused to grant a money judgment for the failure, on the part of the buyers, to pay the
principal and interest due on bond assessments levied after the contract, and for failure to
maintain fire insurance and to pay taxes on the property. Also, in Paap v. Von Helmholt, 8
Cal.Rptr. 568 (1960), damages in the amount of the rental value for the time the buyer held
possession of the property after default were awarded.
[Headnote 3]
In this case, there is no issue of rents for illegal withholding. Rather, the sellers are seeking
the payment of certain installments, due under the contract of sale, which they claim were
items constituting breaches of contract. As they have elected the remedy of restitution, they
cannot now ask for damages in the form of a refund for these payments as well.
Buyers' retention of the $1,000 paid on the Small promissory note was just another item in
the overall breach of the contract by the buyers. This note, like the Branscom note, had been
endorsed by the buyers, placed in escrow, and, although it was negotiated, delivery was
conditional. The proceeds were to be used to accelerate,
1
the payment of the purchase
price in accordance with the provisions of the contract. The obligors were not notified to
make future payments to the sellers and the notes were not delivered to the sellers. There was
never a complete assignment. Rather, the note was deposited in escrow with the other papers
and documents relating to the contract of sale. It was, then, a part of the contract. The buyers'
failure to pay the monies collected on the Small note was another item of the default for
which the sellers sought and secured restitution. Again, they are precluded from asking for
money damages.
The decision of the lower court, awarding $6,278.73 to the sellers, is reversed. Judgment
will be entered for the buyers, Gearld J. and Marie S. Mullinix, who were defendants below.
____________________

1
The contract reads, In order to accelerate the payment of the balance of $70,031.62 payable under the
contract * * *.
defendants below. The taxable costs of this appeal are allowed buyers.
____________
81 Nev. 456, 456 (1965) Violin v. Fireman's Fund Insurance Co.
JEANNETTE VIOLIN AND MISCHA VIOLIN, Appellants,
v. FIREMAN'S FUND INSURANCE COMPANY, Respondent.
No. 4892
September 30, 1965 406 P.2d 287
Marshall, Judge.
Action on a policy. From a judgment of the lower court the plaintiffs appealed. The
Supreme Court, Thompson, J., held, inter alia, that insurer waived its power to rescind
insurance contract covering a violin by issuing the policy with knowledge that insured had
fraudulently misrepresented a material fact in application for insurance in stating that no
company had ever refused or cancelled insurance, where four years earlier the same insurer
had cancelled a policy which it had issued to the same insured covering musical instruments.
Judgment reversed with directions.
[Rehearing denied October 14, 1965]
Zenoff, D. J., dissented.
Samuel S. Lionel, of Las Vegas, for Appellants.
Singleton and DeLanoy and Rex A. Jemison, of Las Vegas, for Respondent.
1. Contracts.
One has an obligation not to speak falsely when inducing another to make a bargain. NRS 686.190.
2. Insurance.
Absent factors favoring application of doctrines of waiver or estoppel, an insurer is not bound by
insurance contract that he was induced to make by fraudulent misrepresentations of insured. NRS
686.190.
3. Insurance.
Where application for insurance was not made a part of insurance contract by incorporation by reference
or by endorsement on policy itself, answers in application did not become warranties or conditions
but were representations collateral to contract of insurance.
warranties or conditions but were representations collateral to contract of insurance.
4. Insurance.
The distinction between a warranty and a representation is sometimes of controlling significance in
insurance litigation.
5. Insurance.
Generally, a warranty in insurance law is a term of insurance contract which does not create an
obligation on part of the warrantor, but which creates a condition of insurer's duty to pay the loss; a
warranty must be strictly complied with and once a breach of warranty has occurred, insurer may avoid the
policy, but a representation is not a term of insurance contract and, though it may also, if false, and
material to risk, supply basis for rescission of insurances contract by insurer, courts tend to be less strict in
their treatment of a representation.
6. Insurance.
The nonwaiver clause of policy denying power to an agent or representative of insurer to waive any
condition or provision of policy was inapplicable to false representation in application which was collateral
to contract of insurance.
7. Insurance.
Generally, the insurer, as a matter of law, is chargeable with knowledge of misrepresentation when full
information about it is present in insurer's own files.
8. Insurance.
In the law of insurance waiver is defined as a giving up of a known privilege or power; it may be
express or implied from circumstances and always involves consent, express or implied, but does not
necessarily rise to the level of contract.
9. Insurance.
Insurer waived its power to rescind insurance contract covering a violin by issuing the policy with
knowledge that insured had fraudulently misrepresented a material fact in application for insurance in
stating that no company had ever refused or cancelled insurance, where four years earlier the same insurer
had cancelled a policy which it had issued to the same insured covering musical instruments.
10. Interest.
Where policy provided that all adjusted claims should be paid within 60 days after presentation and
acceptance of satisfactory proof of loss, and insurer acted within 60 days after proof of loss by cancelling
the policy, and under facts insured was entitled to recover, interest ran from date of letter of cancellation.
NRS 99.040.
OPINION
By the Court, Thompson J.:
This is an action by the insureds on a policy of insurance covering a Guadagnini violin of
the agreed value of $10,000. Following loss of the violin, the insurer Fireman's Fund
Insurance Company canceled the policy, tendered return of the premium paid and denied
liability on the ground that the insureds had made a fraudulent, material
misrepresentation in their application for insurance.
Fireman's Fund Insurance Company canceled the policy, tendered return of the premium paid
and denied liability on the ground that the insureds had made a fraudulent, material
misrepresentation in their application for insurance. The lower court ruled in favor of the
insurer, and this appeal by the insureds followed. The sole question is whether, on the facts
here disclosed, the insurer waived its right to cancel the policy or is estopped to deny liability.
We have concluded that factors favoring the application of the doctrine of waiver against the
insurer are here present, thus precluding avoidance of liability. Accordingly, we reverse.
The question asked on the application for insurance with which we are concerned was,
Has any company ever refused or canceled insurance?
1
The applicants answered, No.
The answer was false. Four years earlier the same insurer, Fireman's Fund, had canceled a
policy which it had issued to the same insureds covering musical instruments. The lower
court found that this misrepresentation was material to the risk against which the applicants
sought coverage and was not innocently made. Notwithstanding this fact the insureds insist
that the insurer may not avoid liability as it was chargeable with knowledge of the prior
cancellation because of information in its own records and chose to write the present policy
anyway.
[Headnotes 1, 2]
1. It is, of course, true that one has an obligation not to speak falsely when inducing
another to make a bargain. This worthy rule is recognized both by statute and case law in
Nevada. NRS 686.190; Poe v. La Metropolitana Co., 76 Nev. 306, 353 P.2d 454 (1960);
Smith v. North American Ins. Co., 46 Nev. 30, 205 P. 801 (1922). Thus, absent factors
favoring the application of the doctrines of waiver or estoppel, an insurer is not bound by an
insurance contract that he was induced to make by the fraudulent misrepresentations of the
insured. The application for insurance in the instant matter contained the following
language, "Signing this form does not bind the Proposer or the Company to complete the
insurance, but it is agreed that this form shall be the basis of the contract, should policy
be issued.
____________________

1
The question is poorly phrased. However, it was not contended below, or here, that its meaning is obscure
and the applicants misled.
instant matter contained the following language, Signing this form does not bind the
Proposer or the Company to complete the insurance, but it is agreed that this form shall be the
basis of the contract, should policy be issued. If any of the above questions have been
answered falsely or fraudulently the entire insurance shall be null and void and all claims
thereunder shall be forfeited. Cf. Poe v. La Metropolitana Co., supra, where similar language
was used in the application for insurance and noted by this court in affirming a judgment for
the insurer. Relying upon the quoted clause of the application for insurance, the claims
superintendent of Fireman's Fund, after notice of loss, advised the insureds that the
application was incorrectly filled out resulting in a non-disclosure of information material to
our acceptance of the risk, rescinded the policy and tendered return of the premium paid.
[Headnotes 3-6]
The application for insurance was not made a part of the insurance contract by
incorporation by reference, i.e., a statement in the policy that the application is made a part of
the policy, Phoenix Mutual Life Insurance Co. v. Raddin, 120 U.S. 183, 7 S.Ct. 500, 30 L.Ed.
644 (1887), or by endorsement on the policy itself. Smith v. North American Insurance Co.,
supra; cf. Universal Underwriters v. Snyder, 81 Nev. 315, 402 P.2d 483 (1965). Thus the
answers in the application did not become warranties or conditions, but are representations
collateral to the contract of insurance. The distinction between a warranty and a
representation is sometimes of controlling significance in insurance litigation. The following
authorities articulate that distinction in depth: Patterson, Warranties in Insurance Law,: 34
Colum.L.Rev. 595 (1934); Kimball, Warranties, Representations and Concealment, 4 Utah
L.Rev. 456 (1955); Patterson, Essentials of Insurance Law 76, p. 384 (2d ed.); Phoenix
Mutual Life Insurance Co. v. Raddin, supra; Moulor v. American Life Insurance Co., 111
U.S. 335, 4 S.Ct. 466, 28 L.Ed. 447 (1884). In general terms a warranty in insurance law is a
term of the insurance contract which does not create an obligation on the part of the
warrantor, but which creates a condition of the insurer's duty to pay the loss.
insurance law is a term of the insurance contract which does not create an obligation on the
part of the warrantor, but which creates a condition of the insurer's duty to pay the loss. The
traditional view is that a warranty must be strictly complied with and, once a breach of
warranty has occurred, the insurer may avoid the policy. The ancient Nevada case of Healey
v. Fire Insurance Company, 5 Nev. 268 (1869), is an example of the traditional, orthodox
view. On the other hand, a representation is not a term of the insurance contract and, though it
may also, if false, and material to the risk, supply the basis for a rescission of the insurance
contract by the insurer, courts tend to be less strict in their treatment of a representation than
is the case when a warranty is involved. Here the insurer's rescission rests solely upon a false
representation by the applicants which was collateral to the contract of insurance, though
perhaps an inducement to its issuance, and not upon any claim that a term of the insurance
contract was breached.
2
With these preliminary observations in mind we turn to discuss the
question presented by this appeal.
2. The insureds do not challenge the findings below, that they fraudulently misrepresented
a fact material to the risk when applying for coverage. However, they do contend that the
insurer may not rely upon that misrepresentation to avoid liability, for it had in its possession
full information about the prior cancellation, and elected to issue the present policy in spite of
such knowledge.
The insurer's claims department, Los Angeles office, did have a record of the prior loss
and subsequent cancellation. However, no agent of that department of the insurance company
was in any way connected with the solicitation or issuance of the present policy, and neither
the insurer's application-taking agent nor its policy-writing agent was aware that the
applicants had misrepresented a material fact in requesting coverage.
____________________

2
The distinction between a warranty and a representation disposes of an alternative argument offered by the
insurer on this appeal. The insurer seeks to sustain the judgment in its favor by the non-waiver provision of the
insurance contract. That provision denies power to an agent or representative of the insurer to waive any
condition or provision of the policy. As the representation here involved is not a term of the policy, the
non-waiver clause is inapplicable.
neither the insurer's application-taking agent nor its policy-writing agent was aware that the
applicants had misrepresented a material fact in requesting coverage. It is also apparent that,
because of the expense, volume and complexity of its business, the insurer in this and related
situations believed itself free to rely upon the representations of fact contained in an
application for insurance, and had not instituted a program for communicating information in
the files of the claims department to those in the production end of the business. Pointing
primarily to these circumstances the insurance company argues that it would be improper to
invoke the doctrines of waiver or estoppel against it and authorize a policy liability, for we
would be rewarding claimants who are not in court with clean hands.
[Headnote 7]
This argument is not without persuasion. Yet it finds only meager support in case law. See
Rhode v. Metropolitan Life Ins. Co., 129 Mich. 112, 88 N.W. 400 (1901); Great Northern
Life Ins. Co. v. Vince, 118 F.2d 232 (6th Cir. 1941), which stand for the principle that earlier
records do not necessarily put the company on notice unless there is some circumstance to
direct its attention to them. See also Schrader v. Prudential Ins. Co., 280 F.2d 355 (5th Cir.
1960), dealing with group insurance. The overwhelming body of authority favors the insured
and holds that the insurer, as a matter of law, is chargeable with knowledge of the
misrepresentation, because of full information about it present in its own files. See:
McKinnon v. Massachusetts Bonding & Ins. Co., 213 Wis. 145, 250 N.W. 503 (1933), (theft
policy); Kennedy v. Agricultural Ins. Co. of Sioux Falls, 21 S.D. 145, 110 N.W. 116 (1906),
(fire policy); Kelly v. Metropolitan Life Ins. Co., 44 N.Y.S. 179 (1897), (life policy); Atlas v.
Metropolitan Life Ins. Co., 181 N.Y.S. 363 (1920), (life policy); O'Rourke v. John Hancock
Mutual Life Ins. Co., 23 R.I. 457, 50 A. 834 (1902), (life policy); Clay v. Liberty Industrial
Life Ins. Co.,(La.App.), 157 So. 838 (1934), (life policy); Hicks v. Home Security Life Ins.
Co., 226 N.C. 614, 39 S.E.2d 914 (1946), (life policy); Monahan v. Mutual Life Ins. Co., 103
Md.
policy); Monahan v. Mutual Life Ins. Co., 103 Md. 145, 63 A. 211 (1906), (life policy). The
rationale employed is not always clear. Some courts speak in terms of waiver. Others invoke
estoppel. On occasion both doctrines are used interchangeably and without differentiation.
3
Whatever the theory, a fact of overriding significance exists in every casethe insurer's
ability to promptly discover the misrepresentation after the loss has occurred. We prefer that
diligence to be exercised at an earlier timewhen the application for insurance is taken. The
Rhode Island Court in O'Rourke v. John Hancock Mutual Life Ins. Co., 23 R.I. 457, 50 A.
834, expressed the same view in the following words, The defendant argues that it is
unreasonable to hold that a company is bound to have present knowledge of all that appears
on its previous files. To this suggestion at the trial the judge asked the pertinent question:
Any more so than it was to ascertain that fact just after the boy died? They have taken the
money. Now, just as soon as the boy died, and the beneficiary asks to be paid, then their
records are looked up; then they saved the record.' The Company had exactly the same
information in its possession at the time the contract was made that it has now. If it is
available at one time, it ought to be imputable at the other.
[Headnotes 8, 9]
We agree that in these peculiar circumstances the insurer, as a matter of law, is chargeable
with actual knowledge of the misrepresentation and may not avoid liability. Our conclusion
rests upon waiver. In the law of insurance waiver is defined as the giving up of a known
privilege or power. It may be express or implied from circumstances and always involves
consent, express or implied, but does not necessarily rise to the level of contract. Vance on
Insurance, 470 (3d ed. 1951). Specifically we hold that the insurer waived its power to
rescind the insurance contract by issuing the policy with knowledge that the insureds had
fraudulently misrepresented a material fact in their application for insurance.
____________________

3
For the distinctions between waiver and estoppel read: Morris, Waiver and Estoppel in Insurance Policy
Litigation, 105 U. of Penn.L.Rev. 925 (1957); Vance on Insurance, 470-546 (3d ed. 1951).
with knowledge that the insureds had fraudulently misrepresented a material fact in their
application for insurance.
[Headnote 10]
The judgment below is reversed, with direction to enter judgment in favor of the
appellants and against the respondent for $10,000 with interest from July 24, 1961, until paid,
and taxable costs below and here.
4

Badt, J., concurs.
Zenoff, D. J., dissenting:
I respectfully dissent. There should not be a reward for a knowing and wilful
misrepresentation. Poe v. La Metropolitana Co., 76 Nev. 306, 353 P.2d 454 (1960), and
Smith v. North American Ins. Co., 46 Nev. 30, 205 P. 801 (1922), support the proposition
that the insured should observe the utmost good faith and deal honestly and fairly with the
company in respect to all material facts inquired about, and as to which he had or should be
presumed to have had knowledge, and make a full, direct, and honest answer, without evasion
or fraud, and without suppression, misrepresentation, or concealment of material facts which
the parties themselves deemed material to be disclosed. Smith v. North American Ins. Co.,
supra, at 45-46 (citing Moulor v. American Life Ins. Co., 111 U.S. 335, 4 S.Ct. 466, 28 L.Ed.
447 (1884)).
The majority turns on the presumption that the company had actual knowledge of the
misrepresentation because of an experience which would be revealed by an examination of
its inactive files, and cites authority in support of this proposition.
____________________

4
NRS 99.040 provides that interest upon an express contract shall be allowed at the rate of 7 percent per
annum upon all money from the time it becomes due. The policy provides that all adjusted claims shall be paid
or made good to the assured within 60 days after presentation and acceptance of satisfactory proof of interest
and loss at the office of this company. The amount of loss is not in dispute. It is liquidated. The insurer acted
within 60 days after proof of loss by cancelling the policy. The letter of cancellation is dated July 24, 1961.
Interest runs from that date. Dollar Investment Corp. v. Modern Market, Inc., 77 Nev. 393, 365 P.2d 311 (1961).
Compare Agricultural Ins. Co. v. Biltz, 57 Nev. 370, 64 P.2d 1042 (1937), and Arley v. Liberty Mutual, 80 Nev.
5, 388 P.2d 576 (1964), where the amount of the loss was disputed, i.e., unliquidated, and interest ran from date
of judgment.
because of an experience which would be revealed by an examination of its inactive files, and
cites authority in support of this proposition. The cited cases are distinguishable from the fact
situation here.
Rhode v. Metropolitan Life Ins. Co., 129 Mich. 112, 88 N.W. 400 (1901), and Great
Northern Life Ins. Co. v. Vince, 118 F.2d 232 (6th Cir. 1941), hold that a life insurance
company is not deemed to possess actual notice of information which it may have in its
records unless there is some circumstance to direct its attention to earlier records. See also
Brown v. Metropolitan Life Ins. Co., 65 Mich. 306, 32 N.W. 610 (1887).
The logic of O'Rourke v. John Hancock Mutual Life Ins. Co., 23 R.I. 457, 50 A. 834
(1902) is persuasive if confined to the language used. It says that if an insurer is allowed to
use the records to avoid the loss, it should be imputed to its knowledge when accepting the
policy. Yet, the case turns on the minority of the insured whose warranties were not permitted
to be set in defense by the company after his death.
Clay v. Liberty Industrial Life Ins. Co. (La.App.), 157 So. 838 (1934), Hicks v. Home
Security Life Ins. Co., 226 N.C. 614, 39 S.E.2d 914 (1946), and Monahan v. Mutual Life Ins.
Co., 103 Md. 145, 63 A. 211 (1906), cited by the majority in support of the premise that an
insurance company is held to be cognizant of information in its own records, all involve
situations where more than one policy is outstanding, contrary to policy provisions. And in
each of these cases, the additional policies being objected to were issued by the same
company, so waiver was applied. The information the insurers were held to have knowledge
of was contained in an active file.
In the case before this court, the information deemed by the majority to be knowledge to
the insurer are facts from an inactive file. A distinction should be made between files used
periodically by an insurer to record premiums paid, changes in beneficiaries and addresses,
and renewals, and files containing records of rejections for coverage, claims from former
policies, and cancellations.
It appears from the evidence that all current policies are on file at the head office and that
inactive files are destroyed according to a specified company policy. The evidence also shows
that destruction of records in various branch offices, while subject to the same policy, is not
coordinated with the destruction at the head office due to different storage facilities. It seems
inequitable to hold an insurance company to knowledge of what is contained in the files of
one isolated outpost. Since all active files are maintained at the head office, it seems that the
only workable rule is to hold an insurer cognizant of the active files.
The controlling factor in the Clay, Hicks, and Monahan cases was that the insurer
knowingly collected premiums on a void policy thereby inducing the insured to believe he
was protected by valid insurance. In the Clay case premiums were accepted for 50 weeks, in
Hicks for over a year, and in Monahan for 41 weeks. It might be that the mere issuance of
the policy would not work an estoppel by waiver, but after a reasonable time has elapsed
during which the company might ascertain the fact of its issuance, and certainly after the
payment of 50 weekly premiums, it must be presumed to have waived the provisions (against
the existence of another policy) in that regard. Clay v. Liberty Industrial Life Ins. Co., supra,
at 839-840.
In the present case the loss of the violin occurred slightly more than two months after
issuance of the policy. The trial court here found that the company did not have knowledge of
the prior experience with the insured at the time of the issuance of the policy, and since there
was such a short period between issuance of the policy and the loss, and only one premium
had been paid,
1
there is not sufficient evidence in the record to have alerted the insurer to
search its dead files to upset the determination of the trial judge that the company should be
held to be without knowledge, actual or presumed.
The fire insurance case cited by the majority, Kennedy v. Agricultural Ins. Co. of Sioux
Falls, 21 S.D.
____________________

1
The premium paid was for a year, thus no continuity of conduct that would alert the insurer.
145, 110 N.W. 116 (1906), also can be distinguished by the active file analogy. In that case a
provision prohibiting the coverage of the same property by additional insurance was invoked
by the insurer to avoid the loss. The insurer, on the additional policy in issue, was the
reinsurer and was thus held to have knowledge of both policies.
While McKinnon v. Massachusetts Bonding & Ins. Co., 213 Wis. 145, 250 N.W. 503
(1933), is the only case involving theft insurance, the court in that case found that the
misrepresentation involved (that insured had not had a loss in the prior five years) was made
without intent to deceive. In the case before this court, the trial court found that the
misrepresentations were fraudulently made.
In Kelly v. Metropolitan Life Insurance Co., 44 N.Y.S. 179 (1897), the fact of a previous
rejection had been withheld from the company. The court held that the act of rejection by the
same company was its own and they were held to have had knowledge of it. However, in
Atlas v. Metropolitan Life Ins. Co., 181 N.Y.S. 363 (1920), the Kelly case was eroded. A
clause in the policy provided that issuance of the policy not be deemed a waiver of a
representation as to the existence of any previous policy. It was held that the receipt of
premiums continuously after the issuing of a policy is * * * if unexplained, conclusive
evidence of a waiver of the condition, and cited the Kelly case. Id. at 365. (Emphasis added.)
This was not a case where the agent of the company who had written the first policy also
wrote the second. Nor was this a situation where there was another active file with the
company that would cause it to be aware on a periodic basis that something unusual existed
between the insured and the company. Nor am I satisfied that the language of the application
and the policy did not sufficiently refer to each other so as to make the false inducement a
part of the policy itself. And since NRS 686.190 requires that applications be attached to
policies only in the life insurance and health and accident insurance classifications in order
for the insured to be bound by the written statements in the application, it is clear that
actual attachment of the application is not necessary in this instance.
for the insured to be bound by the written statements in the application, it is clear that actual
attachment of the application is not necessary in this instance. See NRS 681.030 (3) (c) for
the separate classification of personal property floaters. The application form itself referred to
the policy and provided that, * * * this form shall be the basis of the contract should policy
be issued. If any of the above questions have been answered falsely or fraudulently the entire
insurance shall be null and void and all claims thereunder shall be forfeited.
The policy as issued contained the following condition:
1. Misrepresentation and Fraud. This policy shall be void if the assured has concealed or
misrepresented any material fact or circumstance concerning this insurance or the subject
thereof or in case of any fraud, attempted fraud or false swearing by the assured touching any
matter relating to this insurance or the subject thereof, whether before or after a loss. THIS
POLICY IS MADE AND ACCEPTED SUBJECT TO THE FOREGOING STIPULATIONS
AND CONDITIONS AND TO THE CONDITIONS PRINTED IN THE BACK HEREOF,
WHICH ARE HEREBY ESPECIALLY REFERRED TO AND MADE A PART OF THIS
POLICY, together with such other provisions, agreements or conditions as may be endorsed
hereon or added hereto, and no officer, agent or other representative of this company shall
have power to waive or be deemed to have waived any provision or condition of this policy
unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or
permission affecting the insurance under this policy exist or be claimed by the assured unless
so written or attached.' (Emphasis added.)
While there is a split of authority in the state courts as to the validity of non-waiver
agreements, many state courts and the Federal Courts hold that these agreements are a valid
limitation to the policy. See Northern Assurance Co. v. Grand View Bldg. Ass'n, 183 U.S.
308, 22 S.Ct. 133, 46 L.Ed. 213 (1901); Lamar v. Aetna Life Ins. Co., S5 F.2d 141 {10th Cir.
v. Aetna Life Ins. Co., 85 F.2d 141 (10th Cir. 1936); Gish v. Ins. Co. of No. America, 16 Okl.
59, 87 P. 869 (1905).
Healey v. Imperial Fire Ins. Co., 5 Nev. 268, 5-6-7 Nev. 215, seems to lend support to
strictly enforcing these provisions.There is but one safe rule, and that is take the contract as
written, subtracting nothing therefrom, adding nothing thereto. * * * The court is to enforce
contracts which the parties have made, but has no power to make new contracts for them, or
to alter or vary in any essential particular, those they have mutually agreed to be bound by.
Id. at 220-1. Therefore, since there was no waiver written upon or attached to the policy, the
insurer should not be deemed to have waived the condition requiring forfeiture for
misrepresentations.
There need be little concern about the future life insurance cases when the company seeks
to avoid payment claiming misrepresentations in the application and the deceased is not
available to refute the contention. The cases have set up patterns and standards that impose
responsibilities upon the companies after the issuance of a policy and receipt of premiums
thereon. For the purposes of this factual state, the plaintiff-appellant made a deliberate
misrepresentation of a material fact to the company and there were not enough other factors
present to create actual or presumed knowledge.
____________
81 Nev. 469, 469 (1965) Dinwiddie Construction Co. v. Campbell
DINWIDDIE CONSTRUCTION CO., a Corporation, Appellant, v. VERNA C. CAMPBELL,
STEPHEN J. CAMPBELL, N. O. BERRY, JAMES R. DUTTON, and VERNA C.
CAMPBELL AND STEPHEN J. CAMPBELL, As Trustees of Christopher Campbell Trust,
Respondents.
No. 4891
October 4, 1965 406 P.2d 294
Appeal from the First Judicial District Court, Churchill County; Richard L. Waters, Jr.,
Judge.
Action by trustees of trust against corporate prime contractor and corporate subcontractor
for damages for innocent taking of diatomaceous earth from a mineral claim of the rightful
owner. From a judgment of the trial court in favor of plaintiffs, the prime contractor appealed.
The Supreme Court, Badt, J., held that the prime contractor was not entitled to have the
adverse judgment entered against it and the corporate subcontractor vacated on basis of
alleged misnaming of codefendant in view of a hold harmless clause with individual
purported subcontractor where plaintiff could have sued prime contractor, corporate
subcontractor or individual if shown to have been subcontractor.
Affirmed.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, and Richard O. Kwapil, Jr., of
Reno, and Howard, Prim, Smith, Rice and Downs, of San Francisco, for Appellant.
Orville R. Wilson, of Elko, for Respondents.
1. Judgment.
Prime contractor was not entitled to have judgment against it and corporate subcontractor for innocent
taking of diatomaceous earth from mineral claim of rightful owner vacated on basis of alleged misnaming
of codefendant assertedly prejudicing prime contractor in view of hold harmless clause with individual
which it claimed was subcontractor where plaintiffs could have sued prime contractor, corporate
subcontractor, or individual if shown to have been subcontractor.
Evidence first offered after judgment to accompany a request for an order vacating judgment, which was
denied and from which no appeal was taken, could not be considered on appeal from
judgment.
from which no appeal was taken, could not be considered on appeal from judgment. NRCP 75.
Measure of damages for minerals wrongfully taken from owner is market value less cost of extracting and
marketing.
4. Damages.
Generally, person injured is entitled to compensation commensurate with his loss; in addition to proving
infringement of his legal right, he must prove amount or items of damage suffered by him.
In absence of evidence by trespasser of cost of mining, testimony that value of ore in place was $8.20 per
ton and in truck $9.70 per ton supported finding of $8.20 per ton as correct measure of landowner's
damages.
6. Damages; Evidence.
Tort-feasor has burden of proving any claimed recoupment or mitigation.
OPINION
This appeal presents the question of the correct measure of damages for an innocent or
non-willful taking of diatomaceous earth from a mineral claim of the rightful owner. It also
involves a placing of the burden of proof as to the value of said ore and the deductible
expenditures of defendant which may be considered in mitigation of damages.
Finally, we are concerned with two procedural questions: First, the admissibility for
review of evidence first offered after judgment. Appellant introduced this evidence
accompanying a request for an order vacating judgment. The order was denied and no appeal
was taken. Nevertheless, appellant now seeks consideration of that accompanying evidence in
his appeal here from the judgment.
Secondly, we consider the standing of a defendant to protest the alleged mis-naming of a
co-defendant. This co-defendant is not appealing, nor is there any question as to the liability
of either party. Appellant simply is concerned that the mis-naming will affect appellant's
rights under a save harmless clause in an asserted contract with such other party not named
as a defendant. No cross-claim is involved.
We proceed to the disposition of all of these questions in the inverse order in which they
are named, irrespective of the fact the disposition of one or more of the questions may
dispose of the entire appeal.
The points raised will be clearer from a brief recital of the facts and a reference to the
pleadings.
Respondents sued Dinwiddie Construction Company, a corporation, and George E. Miller
Construction Co., Inc., a corporation, thereafter and hereinafter referred to as Miller, alleging
the removal by defendant Miller, which was alleged to be at the time a sub-contractor of
defendant Dinwiddie, for the purpose of completing a contract of the said Dinwiddie, and
with the knowledge and consent of said Dinwiddie, and under its orders and direction.
Defendants filed a joint answer, with a general denial and the following affirmative defense:
Defendants (emphasis added) during the years 1959 and 1960 did remove certain
diatomaceous earth for use on target Bravo 16, pursuant to a contract with the United States
Navy. Trial was had upon the issues thus raised and the court made findings of respondents'
ownership of their mining claims in the W 1/2 of Section 11, T. 17 N., R. 27 E.; that certain
lands in the E 1/2, of Section 11 were thereafter withdrawn from entry, for use of the Navy as
an aerial bombing range; that respondents' claims in the W 1/2 of Section 11 were never
withdrawn from entry and their ownership was maintained through the performance of annual
assessment work and continued possession and work upon said claims, including the drilling
of two holes, one 75 feet deep and one 60 feet deep, and their marking of the boundaries of
the claims. The Navy had in the past mined certain diatomaceous earth from respondents'
claim No. 1 and paid for the same at an agreed price. In 1963 respondents mapped their said
claim and duly recorded the map in the office of the county recorder of Churchill County,
being the county in which the said claims were located. Upon learning of the taking of the
diatomaceous earth by the defendants, plaintiffs, respondents herein, promptly asserted their
claims to the Navy and to the officers and agents of the defendants.
Plaintiffs' complaint alleged that during 1959 and 1960 Dinwiddie was the primary
contractor with the Department of Navy for the construction of the bombing ranges and
that Miller was the sub-contractor of Dinwiddie to construct portions thereof, including
the creation of targets by the use of diatomaceous earth, and that during the performance
of said sub-contract Miller was at all times under the direct order and control of
Dinwiddie, and the diatomaceous earth was taken with the knowledge and consent of
Dinwiddie; also that the plans as prepared by the Navy for the use and direction of
Dinwiddie erroneously outlined the bombing range as including the W 1J2 of said Section
11; and that a Navy inspector designated to Miller the excavation theretofore made by the
Navy as the place where the Navy had taken diatomaceous earth.
1960 Dinwiddie was the primary contractor with the Department of Navy for the construction
of the bombing ranges and that Miller was the sub-contractor of Dinwiddie to construct
portions thereof, including the creation of targets by the use of diatomaceous earth, and that
during the performance of said sub-contract Miller was at all times under the direct order and
control of Dinwiddie, and the diatomaceous earth was taken with the knowledge and consent
of Dinwiddie; also that the plans as prepared by the Navy for the use and direction of
Dinwiddie erroneously outlined the bombing range as including the W 1/2 of said Section 11;
and that a Navy inspector designated to Miller the excavation theretofore made by the Navy
as the place where the Navy had taken diatomaceous earth. The court further found that
Miller or his employees could have observed the monuments establishing the corners and
center posts of the claims in question, but that Miller relied upon its right to remove the
diatomaceous earth on the mistaken premise that the site of removing the same was in the
area withdrawn for Navy use; that Miller mined the earth solely from plaintiffs' Wild Horse
Claim No. 1 situate entirely in the W 1/2 of said Section 11, and in such trespass the
defendants converted to their own use 2,050 tons of diatomaceous earth of the value of $8.20
per ton in place, prior to the incurring of costs of mining the same, and that such trespass was
not willful. Pursuant to such findings, judgment was entered against Dinwiddie (Dinwiddie
Construction Co.) and Miller (George E. Miller Construction Co., Inc.) jointly and severally
in the sum of $16,810.00, with interest and costs.
Dinwiddie and Miller moved for a new trial, which was denied. Thereupon the present
substituted attorneys for appellant moved on behalf of Dinwiddie alone to vacate the
judgment, which motion was likewise denied. As noted above, Dinwiddie alone appealed
from the judgment. No appeal was taken from either the denial of the motion of Dinwiddie
and Miller for a new trial or the denial of the motion of Dinwiddie to vacate the judgment.
[Headnote 1]
1. In support of the motion to vacate the judgment, which motion was made by Dinwiddie
alone through its substituted attorneys, Dinwiddie submitted a copy of a sub-contract between
it and George E. Miller personally. As noted, such motion, and the motion for new trial, were
denied. Although no appeal was taken from such denial, said sub-contract was made a part of
the record in Dinwiddie's appeal from the judgment alone. No crossclaim had been filed
against George E. Miller personally and no motion or affirmative defense was raised upon the
ground of misjoinder or nonjoinder of parties and was at no time asserted prior to the entry of
judgment. Patently the sub-contract was relevant only to the motion to modify the judgment.
1
Not only is this clear from the record, but in the affidavit of Richard O. Kwapil, Jr., in support
of the motion to modify the judgment, we find the following:
That the sub-contract agreement on the job in question was between DINWIDDIE
CONSTRUCTION COMPANY and GEORGE E. MILLER personally; that thereafter
GEORGE E. MILLER, personally, caused GEORGE E. MILLER CONSTRUCTION
COMPANY to do the actual work on the job, but the sub-contract was still in full force and
effect. Dinwiddie predicates its appeal from the judgment on the contention that it had a
sub-contract with George E. Miller, an individual, which contained a hold harmless clause,
which he would be unable to pursue under the judgment as rendered against it and the
asserted sub-contractor. This is without merit. In Gensler-Lee v. Geertson, 73 Nev. 328, 318
P.2d 1113, judgment was obtained against Gensler-Lee, a sublessor of certain premises.
Appellant maintained that a verdict against Gensler-Lee only could not be sustained without a
verdict against its sublessor and against the owner of the premises. Appellant contended:
They were guilty if Gensler-Lee was guilty. The sublease in evidence provided that the
sublessee should hold the sublessor free from liability.
____________________

1
The motion for new trial did not include the ground of subsequently discovered evidence of which it could
not have reasonably, known at the time of trial, namely, the existence of such sub-contract between Dinwiddie
and George E. Miller personally.
sublessee should hold the sublessor free from liability. This court there said: In the second
place it does not appear that Gensler-Lee is aggrieved by that part of the jury's verdict which
absolved its sublessor or the owner. If they were joint tortfeasors with appellant, there would
be no right of contribution among them. [citation] Mrs. Geertson might have sued any one of
them without joining the others. In the present instance Campbell could have sued either
Dinwiddie, George E. Miller (if shown to be the sub-contractor), or Miller Construction
Company, by whom the work was done.
Under this situation we might summarily sustain the judgment without more ado.
However, by reason of the earnestness displayed by the briefs and oral argument, we think it
advisable to dispose likewise of the other grounds raised by appellant Dinwiddie.
[Headnote 2]
2. In the foregoing discussion we have virtually disposed of the relevancy of the
sub-contract offered in support of the motion to vacate the judgment, to the appeal from the
judgment itself. We desire to reinforce this, however, by well-recognized authority construing
the provisions of NRCP which provide for a designation of contents of record on appeal,
and is intended to insure that enough of the proceedings below will be brought before this
court to enable it to determine the question properly raised. In re Visking Corporation, 134
F.2d 1013 (4th Cir. 1943), discussing federal rule (FRCP) 75, which is virtually identical with
NRCP 75; Paramount Film Distributing Corp. v. Civic Center Theatre, 333 F.2d 358 (10th
Cir. 1964); Sheridan-Wyoming Coal Co. v. Krug, 168 F.2d 557 (D.C.Cir. 1948); Brennan v.
Hawley Products Co., 182 F.2d 945 (7th Cir. 1950). The rationale of these cases seems to be
that the motion to vacate the judgment in effect disappeared upon its undisputed denial,
leaving matters as if the motion never had been made. Under this rationale, evidence
submitted in support of the postjudgment motion would disappear with the motion and thus
not be available for review on the appeal from the judgment. A second rationale for refusing
review of post-judgment matters on appeal from the judgment is found in Gray v.
Amerada Petroleum Corp.,
of post-judgment matters on appeal from the judgment is found in Gray v. Amerada
Petroleum Corp., 145 F.2d 730 (5th Cir. 1944), where the court attacked the ex parte matters
of such last-minute insertions, saying: [T]his is a mere ex parte statement filed months after
the entry of the judgment, and it constitutes no part of the record.
3. The measure of damages was discussed at length in the briefs and in the oral argument.
A complete annotation may be found in 21 A.L.R.2d 382. It refers to two main rules (1) the
harsh rule and (2) the mild rule. The harsh rule is applied where the trespass is willful
or in bad faith. The trial court found the instant trespass to be non-willful and no cross-appeal
was taken by respondents. It becomes unnecessary to discuss it. We may remark, however,
that such finding is amply supported by the evidence.
[Headnote 3]
The mild rule, applied where the trespass is inadvertent or not willful or not in bad faith,
fixes the damages as the value of the minerals in place. Where such value is ascertainable, the
question of mining costs becomes irrelevant, but where such evidence cannot be obtained, the
methods used to establish the value of the ore in place are either (1) the royalty method, or (2)
the value after the ores have been extracted, less production costs. Appellants here assert the
propriety of applying the royalty method, citing cases in support. The A.L.R. annotation
referred to (21 A.L.R.2d), at page 384, refers to only three jurisdictions in which the royalty
method or test has been applied. These are Arkansas, Kentucky and Virginia. It is said, id.
389, that the royalty method was applied prior to the decision in Hughett v. Caldwell County
(1950), 313 Ky. 85, 230 S.W.2d 92, 21 A.L.R.2d 373, but that such rule had been clearly
limited by Hughett v. Caldwell County which showed that such rule originated in a case
where the owner had no feasible way of extracting the mineral except through the trespasser's
opening, thus presenting a clear case where royalty was due and proper compensation, but
held that under conditions where it is practicable to establish the value of the ore at the
mouth of the mine or pit, "that is the measure of his pecuniary loss and should be his
compensation," and "that the correct measure of damage in recovery was the reasonable
market value of the fluorspar after it had been mined, less the reasonable cost incurred by
the defendant in mining it."
is practicable to establish the value of the ore at the mouth of the mine or pit, that is the
measure of his pecuniary loss and should be his compensation, and that the correct measure
of damage in recovery was the reasonable market value of the fluorspar after it had been
mined, less the reasonable cost incurred by the defendant in mining it. The conclusion of the
writer of the annotation was that Hughett v. Caldwell County overruled former opinions in
which there were similar circumstances and conditions and which applied the royalty test.
This was followed in later Kentucky cases. This leaves, at most, only Arkansas and Virginia
subscribing to the royalty test while a score of jurisdictions expressly hold the only proper
measure of damage should be the market value, less the cost of extracting and marketing it.
We adhere to such rule. It has the additional virtue of not giving the trespasser profits
resulting from the unlawful conversion, in addition to permitting him to recoup his costs of
mining and extracting the minerals.
The record in this case does not show that appellant offered any evidence of the costs of
mining. Indeed, we are left without any picture of how the mining was donewhether the ore
was knocked down, or picked down, or by the familiar method of drilling a round of
holes in the face of the ore body and blasting the ore down.
2

[Headnotes 4, 5]
4. Appellant contends that the burden of proof was upon the plaintiffs throughout the
case, to prove not only that they were damaged but the actual amount of such damage. It is
true that, generally speaking, the person injured is entitled to compensation commensurate
with his loss.
____________________

2
Miller did indeed testify that it cost $2.50 to remove the earth and that this figure included a loader in the
pit. He stated that this was an estimated amount, to transport it and bring it to the site. Whether the loader
was a man or a machine is not clear. In any event, this item compares reasonably with the $1.50 moving expense
to which plaintiffs' expert Smith testified as being in addition to the $8.20 value. Miller's testimony, if given any
weight by the court, would still have justified the trial court's finding of a value of $8.20 per ton to be a
reasonable value after taking into consideration defendant's alleged mitigation.
person injured is entitled to compensation commensurate with his loss. In addition to proving
the infringement of his legal right, the injured person must prove the amount or items of
damage suffered by him. Steiner v. Long Beach Local No. 128, etc., 19 Cal.2d 676, 123 P.2d
20, 27, and see Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789, and Cladianos v. Friedhoff,
69 Nev. 41, 240 P.2d 208. Expert witness Smith, on behalf of respondents, definitely testified
to the value of the ore in place at $8.20 per ton, and its value in the truck, as $9.70 per ton,
moving expenses constituting the additional $1.50. This in itself supports the court finding of
$8.20 per ton as the correct measure of plaintiffs' damages.
[Headnote 6]
Nor does it appear from the cases that there is any substantial deviation from the rule that
the defendant has the burden of proving any claimed recoupment or mitigation. Burr v. Clark,
30 Wash.2d 149, 190 P.2d 769 (1948); Sturgeon v. Phifer (Wyo.), 390 P.2d 727 (1964);
Carney v. Cold Spring Brewing Co., 304 Mass. 392, 23 N.E.2d 1000 (1939).
On all counts we are compelled to hold that appellant's assertions of error are without
merit. The judgment is affirmed with costs.
Thompson, J., and Zenoff D. J., concur.
____________
81 Nev. 477, 477 (1965) Anderson v. State
EUGENE ALVIN ANDERSON and GEORGIA JOANNE HILL,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 4708
October 11, 1965 406 P.2d 532
Appeal from conviction of possession of narcotics of the Second Judicial District Court,
Washoe County; John W. Barrett, Judge.
The defendants were convicted of possession of narcotics. The trial court rendered
judgment, and the defendants appealed.
defendants appealed. The Supreme Court, Zenoff, D. J., held that the trial court properly
allowed only four peremptory challenges to be shared among all of the defendants.
Affirmed.
[Rehearing denied November 4, 1965]
Samuel B. Francovich, of Reno, for Appellants.
Ahlswede, Chief Criminal Deputy, Washoe County, for Respondent.
1. Criminal Law.
Defendants were not entitled to separate trials without a sufficient showing of facts proving that prejudice
would result from a joint trial. NRS 175.205.
2. Jury.
The statute providing that when several defendants are tried together, they cannot sever their challenges
but must join therein is not unconstitutional. NRS 175.015.
3. Jury.
There is nothing in either the federal or state Constitutions which requires Congress or state Legislature
to grant peremptory challenges to defendants in criminal cases; trial by impartial jury is all that is secured.
4. Jury.
Peremptory challenges arise from exercise of privilege granted by legislative authority; the privilege must
be taken with the statutory limitation that when several defendants are tried together, they cannot sever
their challenges but must join therein. NRS 175.015.
5. Criminal Law.
Where defendants firmly argued at commencement of trial that defendants should each be allowed to
exercise four peremptories and the trial court ruled that all defendants were entitled to a total of four
peremptory challenges, and the defendants then entered into their remaining challenges reluctantly, the
defendants sufficiently preserved their objections to the court's refusal to allow additional peremptories;
partly overruling State v. Squier, 56 Nev. 386, 54 P.2d 227 (1936). NRS 175.015.
The one man-one vote rule of the United States Supreme Court in the reapportionment cases does not
apply to peremptory jury challenges when several defendants are tried together. NRS 175.015.
7. Criminal Law.
The Supreme Court will not consider matter outside the record.
OPINION
Appellants seek reversal of a conviction for possession of narcotics, alleging as error a
ruling of the trial court allowing, under NRS 175.015, only four peremptory challenges to be
shared among all of the defendants. The joint defendants insist that they were each
individually entitled to four peremptories.
NRS 175.085 provides that (1) if the offense charged is punishable with death or by
imprisonment for life, the defendant is entitled to eight, and the state to eight peremptory
challenges, and (2) if the offense charged is other than those mentioned in subsection (1), the
defendant is entitled to four and the state to four peremptory challenges.
NRS 175.205 requires that when two or more defendants shall be jointly charged with a
criminal offense, they shall be tried jointly, unless, for good cause shown, the court shall
otherwise direct.
NRS 175.015 states that when several defendants are tried together, they cannot sever their
challenges, but must join therein.
At the commencement of the jury selection in this case, there were six defendants
represented by three different attorneys. The trial court ruled that all defendants were entitled
to a total of four peremptory challenges. When certain defendants could not agree on the
exercise of peremptories, three of the defendants (represented by two of the attorneys) made
timely motions and were severed from the trial.
Thereafter the remaining three defendants, all represented by the same counsel, exercised
their peremptories reluctantly after denial of a request to sever appellant Anderson on the
ground that he could not agree on the exercise of a peremptory challenge. Trial and
conviction followed.
[Headnote 1]
1. That the defendants were not entitled to separate trials without a sufficient showing of
facts proving that prejudice would result from a joint trial is clear. NRS 175.205; State v.
McLane, 15 Nev. 345 (1880); State v. Lewis, 50 Nev. 212, 255 P. 1002 (1927). Therefore,
under NRS 175.015, defendants were required to join in their challenges. State v. McLane,
supra; People v. Doran, 246 N.Y. 409, 159 N.E. 379; People v. Kassis, 145 Misc. 493, 259
N.Y.S. 339 (1931); State v. Mitchell, 36 Idaho 724, 214 P. 217 (1923).
[Headnote 2]
The question remains then whether NRS 175.015 violates any constitutional right given
the defendant by either the federal or state Constitution.
[Headnote 3]
There is nothing in either the Constitution of the United States or the Nevada Constitution
which requires Congress or the state Legislature to grant peremptory challenges to defendants
in criminal cases; trial by an impartial jury is all that is secured. Stilson v. U.S., 250 U.S. 583,
40 S.Ct. 28, 63 L.Ed. 1154 (1919); State v. McClear, 11 Nev. 39 (1876).
[Headnote 4]
Peremptory challenges arise from the exercise of a privilege granted by the legislative
authority. Our legislature has seen fit to treat several defendants, for this purpose, as one
party. If the defendants would avail themselves of this privilege, they must act accordingly. It
may be that all defendants may not wish to exercise the right of peremptory challenge as to
the same person or persons, and that some may wish to challenge those who are
unobjectionable to others. But this situation arises from the exercise of the privilege and does
not invalidate the law. The privilege must be taken with the limitations placed upon the
manner of its exercise. Stilson v. U.S., supra; State v. McLane, supra; 136 A.L.R. 453. And
this is still the law. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
[Headnote 5]
Further, State v. Squier, 56 Nev. 386, 54 P.2d 227 (1936), holding that joint defendants in
that case could have only four peremptory challenges, said, [T]he record does not show * * *
that the defendants, after they had exercised four peremptories, or at any other time, informed
the court that they were not entirely satisfied with the jury, or that they desired or demanded
that they be permitted to exercise any further peremptory challenges. Id. at 391. * * *
[T]here is but one way for a person on trial to show that he is prejudiced in such a situation,
which is to seek to exercise his rightto exhaust his remedy. Id. at 399.
We are in accord with the Squier case in its holding that the defendant must be prejudiced,
but we expressly overrule any implication by that case that indicates that there is only one
way to preserve the defendant's rights, i.e., to attempt to challenge another juror. We believe
that acquiescence in the court's ruling will not necessarily waive defendant's objections if the
defendant sufficiently makes clear his objection at the time of the ruling.
The defendants in the present case firmly argued at the commencement of the trial that
defendants should each be allowed to exercise four peremptories, and after the court's ruling
to the contrary, entered into their remaining challenges reluctantly, using the language of
counsel. The court said, He doesn't protest but you think reluctantly' is a good way to put
it, to which defendants' counsel replied in the affirmative.
While the objection was not explicitly stated, the defendants sufficiently preserved their
objections to the court's refusal to allow additional peremptories so that the waiver in Squier
does not apply.
[Headnote 6]
2. Appellants' contention that the one man-one vote rule of the U. S. Supreme Court
now applied to election of the members of the state legislatures, Baker v. Carr, 369 U.S. 186,
82 S.Ct. 691, 7 L.Ed.2d 663 (1961), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct.
1362, 12 L.Ed.2d 506 (1964), should apply to peremptory jury challenges is without merit.
[Headnote 7]
3. Appellants also assert error in one of the court's instructions. The allegedly offensive
instruction is not part of the record before us. It is not included in the Designation of Record
on Appeal. We refuse to consider any matter outside the record. State v. Forsha, 8 Nev. 137
(1872); State v. Ah Mook, 12 Nev. 369 (1877); State v. Murphy, 21 Nev. 332, 31 P. 513
(1892); State v. Maher, 25 Nev. 465, 62 P. 236 (1900); State v. Douglas, 26 Nev. 196, 65 P.
802 (1901); State v. Cerfoglio, 46 Nev. 331, 201 P. 322 (1923).
Affirmed.
____________
H. M. POIRIER, Doing Business as PIONEER DENTAL LABORATORY, Appellant, v.
BOARD OF DENTAL EXAMINERS OF NEVADA, Consisting of Ross Whitehead, Morris
Gallagher, Howard Woodburn, Vincent Sanner, Stephen Comish, A. A. Cozzalio, and David
W. Melarkey, Respondent.
No. 4872
October 15, 1965 406 P.2d 534
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Defendant was found guilty of criminal contempt. The lower court entered judgment, and
the defendant appealed. The Supreme Court, Badt, J., held that defendant, who placed
advertisement in newspaper stating that he had dental laboratory and was a friend of the
denture wearer, and who placed advertisement in yellow pages of telephone directory stating
that he was a denturist, violated permanent injunction restraining him from advertising that
he could perform dental operation of any kind or could repair, reline, or rebuild dental plates,
and restraining him from engaging in practice of dentistry, and was therefore guilty of
criminal contempt.
and restraining him from engaging in practice of dentistry, and was therefore guilty of
criminal contempt.
Affirmed.
[Rehearing denied November 29, 1965]
Bradley & Drendel, of Reno, for Appellant.
Goldwater, Taber and Hill, and Cooke & Roberts, of Reno, for Respondent.
1. Injunction.
Defendant, who placed advertisement in newspaper stating that he had dental laboratory and was a friend
of denture wearer, and who placed advertisement in yellow pages of telephone directory stating that he was
a denturist, violated permanent injunction restraining him from advertising that he could perform dental
operation of any kind or could repair, reline, or rebuild dental plates, and restraining him from engaging in
practice of dentistry, and was therefore guilty of criminal contempt. NRS 631.090.
2. Constitutional Law; Criminal Law.
Counsel's comment as to defendant, who was charged with criminal contempt for violating permanent
injunction relating to advertisements concerning practice of dentistry, that advertisements were placed by
defendant and paid for by him, and that defendant had not taken the stand, and that it was his privilege not
to do so, but that one who was intimately connected with defendant's business had testified to purpose and
result of the advertising was not a comment on defendant's failure to take stand in violation of statute and
of defendant's rights under Fourteenth Amendment. NRS 178.235; U.S.C.A. Const. Amends. 5, 14.
OPINION
This is an appeal from a judgment of the Second Judicial District Court finding the
appellant, H. M. Poirier, guilty of criminal contempt of court and sentencing him to be
confined in the Washoe County jail for a period of five days and to pay a fine of $500, or, in
the alternative and at appellant's election, to serve twenty-five days in the Washoe County
jail.
We heretofore denied respondent's motion to dismiss the appeal.
A permanent injunction was issued on February 13, 1961, by the district court in Washoe
County enjoining and restraining appellant, H. M. Poirier, from 1. Advertising or permitting
to be advertised, by any media that he can or will attempt to perform dental operations of any
kind, or that he can or will repair, reline, or rebuild dental plates and 6. From engaging in
the practice of dentistry as defined by the Nevada Dental Act. The validity and
constitutionality of this permanent injunction were upheld by this court in Poirier v. Board of
Dental Examiners, 78 Nev. 232, 370 P.2d 960 (1962).
On August 28, 1962, the district court found appellant guilty of violating the court's
permanent injunction and directed that he be ordered to serve a term of ten days in the
Washoe County jail with sentence suspended. Also, it was provided that any future violation
of the judgment and decree would constitute a ground of revocation of probation and
appellant would then serve ten days in jail. He was fined $52.00 which was paid in cash in
lieu of 13 days in jail at four dollars per day.
In 1964, appellant was again ordered to show cause why he should not be held in contempt
of court for further violation of the permanent injunction and on March 25, 1964, appellant
was found to be in contempt of court and was fined $250.00.
This present matter came before the district court pursuant to an order, directed to
appellant, to show cause why he should not be punished for contempt for violating the court's
order by advertising in various newspapers and in the Nevada telephone directory. These
advertisements were as follows:
In Nevada Veterans Journal of April and August, 1964: Pioneer Dental Lab, a friend of
the denture wearer since 1955, 616 B. Street, Sparks, 358-4018.
In Tonopah Times Bonanza and Goldfield News of April, 1964: Pioneer Dental Lab,
established 1955, 616 B. Street, Sparks, Nevada.
In Bell Telephone CompanyNevada Directory of 1964: "Pioneer Dental Plate Labs,
established 1955, H.
1964: Pioneer Dental Plate Labs, established 1955, H. Noel Poirier, Denturist. (In yellow
pages with an additional charge being placed by the telephone company for this type of
advertisement.) The Nevada Veterans Journal is distributed to all veterans in the State of
Nevada and has a circulation of approximately 10,000. The Tonopah Times Bonanza and
Goldfield News is a newspaper of general circulation, distributed mainly in Nevada.
The following questions are presented:
1. Did appellant violate the permanent injunction which prohibited him from advertising,
or permitting to be advertised, by any media that he can or will attempt to perform dental
operations of any kind or that he can or will repair, reline or rebuild dental plates, when he
placed these advertisements in the Nevada Veterans Journal, the Tonopah Times Bonanza
and Goldfield News and the Nevada Directory of the Bell Telephone Company?
2. Does this interpretation of the permanent injunction, limiting appellant's ability to
advertise, violate his rights under the First and Fourteenth Amendments of the United States
Constitution?
3. Was the comment, made by respondent's counsel in his closing argument to the district
court, concerning appellant's failure to take the stand to testify as to the publishing of the
advertisements, recited at length supra, a violation of Nevada Revised Statutes 178.235 and
of the Fourteenth Amendment of the United States Constitution?
1. In Poirier v. Board of Dental Examiners, 78 Nev. 232, 370 P.2d 960 (1962), this court
upheld the validity and constitutionality of the permanent injunction which had been issued
against the appellant by the district court of Washoe County on February 13, 1961. The
pertinent sections of that injunction restrained the appellant from: advertising or permitting
to be advertised by any media that he can or will attempt to perform dental operation of any
kind, or that he can or will repair, reline, or rebuild dental plates * * *; from engaging in the
practice of dentistry as defined by the Nevada Dental Act."1
[Headnote 1]
engaging in the practice of dentistry as defined by the Nevada Dental Act.
1

[Headnote 1]
The district court found on January 18, 1965, that appellant had violated this permanent
injunction and found him in contempt of court. The basis for this action was the placing of
the advertisements set forth above. There would seem to be little question that the appellant
violated the injunction in two of the three instances. By placing in the Nevada Veterans
Journal of August, 1964, the words, Pioneer Dental Lab, a friend of the denture wearer since
1955, 616 B Street, Sparks, 358-4018, (emphasis supplied) it is obvious that appellant was
attempting to appeal to the general public and to solicit its dental business. It would be totally
illogical and unrealistic to hold, as appellant contends, that the advertisements were directed
to the dental profession. It is doubtful that this is the type of announcement to which the
dental profession is apt to respond. Also, the advertisement was placed in the Nevada
Veterans Journal, not a professional journal for dentists.
The statement in the yellow pages of the Nevada Directory of the Bell Telephone
Company emphasizes that defendant is a denturist. Appellant admits in his brief that the
word, denturist, is an artificial one apparently coined by him. Certainly, if the purpose of
appellant were to notify dentists as to the availability of the services of his laboratory, this
announcement was not likely to produce the desired result. The profession does not recognize
a specialization known as denturists. However, some assistance in definition may be found
in the Second Edition of Webster's New International Dictionary in defining the suffixist: a.
One who does or makes a practice of (1) a given action * * * b. One who practices a given art
as in
* * * rhapsodist, artist; one professionally or particularly occupied with, or skilled in, a given
department of knowledge as in botanist, physicist * * *.
____________________

1
The Nevada Dental Act defined under 631.090 the practice of dentistry as any person who advertises or
permits to be advertised by any media that he can or will attempt to perform dental operations of any kind.
(Emphasis added.)
knowledge as in botanist, physicist * * *.
2
It is obvious that this was intended to convey to
the general public the type of services which appellant was specifically enjoined from
performing or advertising. Denturist is easily identified with dentist or denture. In the
mind of the general public, the word would be likely to convey the general impression that
appellant intended, that he performed some type of dental operations or that he repaired
dentures. This directly violated the permanent injunction which restrains appellant from
Advertising or permitting to be advertised by any media that he (appellant) can or will
attempt to perform dental operations of any kind, or that he can or will repair, reline, or
rebuild dental plates and from engaging in the practice of dentistry as defined by the
Nevada Dental Act.
Further, this wording is contrary to the proscription contained in NRS 631.090, which
provides explicitly:
Any person shall be deemed to be practicing dentistry who: (a) uses words or any letters
or titles in connection with his name which in any way represents him as engaged in the
practice of dentistry, or any branch thereof. (Emphasis added.) This canon was violated
when appellant advertised as H. Noel Poirier, Denturist.
The announcement in the Tonopah Times Bonanza and Goldfield News presents a more
difficult problem of judgment, but as the other two publications were patently in violation of
the injunction, and justify the contempt order, we find it unnecessary to discuss the Times
Bonanza listing, except to note that the News is not a professional publication.
2. Appellant contends that the lower court's action violates appellant's constitutional rights
under the First and Fourteenth Amendments to the Federal Constitution. No purpose would
be served by adding to the large body of the law on the subject of the regulation of the dental
and medical professions vis-a-vis the protection of the public.
____________________

2
And the repairing of dentures is an integral part of the accumulative art of dentistry. Ambrose v. Board of
Dental Examiners, 78 Nev. 130, 369 P.2d 672 (1962).
the public. This court has before disposed of that question. Ambrose v. Board of Dental
Examiners, 78 Nev. 130, 369 P.2d 672 (1962); Poirier v. Board of Dental Examiners, 78 Nev.
232, 370 P.2d 960 (1962). We mention a few of the authorities from other states which have
discussed the subject at length. Semler v. Oregon State Board of Dental Examiners, 294 U.S.
608, 55 S.Ct. 570, 79 L.Ed. 1086 (1934); Parlow v. Board of Dental Examiners, 332 Mass.
682, 127 N.E.2d 306 (1955); Oshins v. York, 150 Fla. 690, 8 So.2d 670 (1942); Board of
Dental Examiners v. Jameson, 64 Cal.App.2d 614, 149 P.2d 223 (1944).
3. Appellant's next contention has to do with the argument to the court below by
respondent's counsel, asserting that it was a comment on appellant's failure to take the stand
and was in violation of NRS 178.235 and of appellant's rights under the Fourteenth
Amendment. NRS 178.235 provides that a defendant's neglect or refusal to be a witness
shall not in any manner prejudice him, nor be used against him on the trial or proceeding.
The Fifth Amendment, proscribing self-incrimination, has been held to be effective against
the states, and the Supreme Court of the United States made its position clear on this subject
in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). This court
commented upon this problem in Fernandez v. State, 81 Nev. 276, 279, 402 P.2d 38, 40
(1965):
The distinction appears to be that defendant's failure to testify cannot directly or indirectly
be the subject of comment by the prosecution, but a reference to evidence or testimony that
stands uncontradicted is acceptable. Paraphrasing Griffin, what the jury may infer given no
help from the court (or prosecution) is one thing. What they may infer when the court (or
prosecution) solemnizes the silence of the accused into evidence against him is quite another.
Permitting such comment imposes a penalty for exercising a constitutional privilege. The
dividing line must be approached with caution and conscience.
[Headnote 2]
It is clear in this case that counsel's comment was simply to state that the advertisements
were placed by the defendant and paid for by him; that the defendant had not taken the
stand and that that was his privilege, but Mrs.
the defendant and paid for by him; that the defendant had not taken the stand and that that
was his privilege, but Mrs. Poirier, who was intimately connected with the business, had
testified to the purpose and result of the advertising. Counsel was not solemnizing Poirier's
failure to take the stand as being evidence against him. He was merely commenting upon
uncontradicted evidence.
We find no merit in any of appellant's assignments of error.
Zenoff and Wines, JJ., concur.
McNamee, C. J., being incapacitated, the Governor assigned Honorable David Zenoff of
the Eighth Judicial District to sit in his place.
Thompson, J., being disqualified, the Governor commissioned Honorable Taylor H. Wines
of the Fourth Judicial District to sit in his place.
____________
81 Nev. 489, 489 (1965) Hutchby v. District Court
HENRY HUTCHBY, AND PAINTER'S UNION LOCAL 567, Petitioners, v. SECOND
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of
Washoe, and the HONORABLE JOHN E. GABRIELLI, Judge of Department 3 Thereof,
Respondents.
No. 4966
October 19, 1965 406 P.2d 710
Proceeding for relief from injunction and contempt citation. The Supreme Court, Badt, J.,
held that peaceful picketing to exert pressure to compel employer doing more than $50,000
worth of interstate business annually to bargain collectively with certified representatives or
to destroy employer's subcontracts was arguably to prevent alleged unfair labor practice of
refusal by employer to bargain over terms of hiring hall clause and was thus exclusively
within jurisdiction of National Labor Relations Board, and state court lacked jurisdiction to
enjoin the picketing or punish for contempt for violation of the injunction.
the picketing or punish for contempt for violation of the injunction.
Petition granted and judgment annulled.
Bissett, Logar & Groves, of Reno, Neyhart & Grodin, of San Francisco, for Petitioners.
Peter I. Breen, of Reno, for Respondents.
1. Labor Relations.
Peaceful picketing to exert pressure to compel employer doing more than $50,000 worth of interstate
business annually to bargain collectively with certified representatives or to destroy employer's
subcontracts was arguably to prevent alleged unfair labor practice of refusal by employer to bargain over
terms of hiring hall clause and was thus exclusively within jurisdiction of National Labor Relations Board,
and state court lacked jurisdiction to enjoin the picketing or punish for contempt for violation of the
injunction. National Labor Relations Act 7, 8(a), (1,5) as amended 29 U.S.C.A. 157, 158(a) (1, 5).
2. Labor Relations.
State court may not exercise jurisdiction of a given controversy which is arguably subject to prohibitions
or protections of the National Labor Relations Act: the National Labor Relations Board must determine
initially whether the federal act applies to the circumstances giving rise to the litigation. National Labor
Relations Act 1 et seq. as amended 29 U.S.C.A. 151 et seq.
OPINION
This is an original petition for a writ of prohibition.
In 1962 the National Labor Relations Board certified petitioners as the statutory bargaining
representatives for the employees of Tom Joyce Floors, Inc. (hereinafter referred to as Joyce).
After several negotiating meetings with petitioners, Joyce refused to bargain with the union
over the terms of a hiring hall clause. This refusal to bargain collectively with petitioners was
found to be an unfair labor practice under federal law by the National Labor Relations Board.
(See Tom Joyce Floors, Inc., 149 NLRB, No. 88, 1964, CCH NLRB, para. 13,577.) Joyce has
refused to comply with this order of the National Labor Relations Board and a petition for
enforcement of the board order is now pending before the Ninth Circuit Court of Appeals.
On May 25, 1965, Joyce obtained a temporary injunction from the respondent court
restraining petitioners and their agents and district representatives from "further picketing
any place of business where Tom Joyce Floors, Inc.,
and their agents and district representatives from further picketing any place of business
where Tom Joyce Floors, Inc., * * *, is engaged in business, or employer's place of business
for that purpose where the objective is to destroy said plaintiff's subcontracts or to interfere
with his lawful and legitimate business.
Despite this injunction, petitioners continued their picketing, which was in all respects
peaceful. Two pickets were used, one carrying a sign reading: Tom Joyce Floors unfair to
organized labor. Operating under conditions less favorable than area floor agreement. This is
an informational picket. Painter's Local 567 Reno. No collective bargaining agreement was
in effect between the union and Joyce at this time.
The union contended that the purpose of this picketing was to compel Joyce to bargain and
to publicize the fact that Joyce did not provide its employees with wages and conditions of
employment prevailing in the area for similar work under union contracts. Joyce claimed the
purpose was to destroy its business. As a result, Joyce instituted contempt proceedings and
the petitioners were adjudged guilty of contempt and fined $150. The court made no specific
finding as to the existence or non-existence of an unlawful actionable conspiracy (criminal or
civil) as alleged but simply found that, by virtue of the state of the record, there was a
sufficient basis to conclude that at least a substantial purpose and effect of the petitioners'
picketing had developed to a point where it amounted to an attempted destruction of the
employer's business which the court felt was violative of state law.
Petitioners seek relief from the injunction and contempt citation by means of this writ of
prohibition. They contend that sole and exclusive jurisdiction of the controversy is vested in
the National Labor Relations Board and that the respondent court is and was without
jurisdiction to enjoin the picketing, and a fortiori, to punish for contempt of the injunction.
Counsel for both sides stipulated that Joyce does sufficient interstate business, particularly by
purchase of materials from outside the state, in excess of $50,000 a year, to bring it within the
jurisdictional standard of the National Labor Relations Board.
As we are of the opinion that the position of the petitioners is well founded on this ground
and that this is dispositive of the case, it is the only issue to which we shall direct our
attention.
The respondents contend that petitioners' theory of the case, namely, that Joyce's evidence
on the motion for temporary injunction and the allegations contained in its complaint and
motion are arguably against an unfair labor practice and thus within the jurisdiction of the
National Labor Relations Board, is incorrect. The respondents claim that the pleadings and
evidence in support of the injunction in the district court were based upon a conspiracy on
the part of the petitioners to destroy plaintiff's business, and * * * that a state court has
jurisdiction to enjoin acts which are done in pursuance of a common-law conspiracy to harm
another party.
[Headnote 1]
Unfortunately, respondents mistake the issue and the purpose of the picketing. The
purpose of the picketing was not to destroy Joyce but to exert pressure to compel Joyce to
bargain collectively with the certified representatives of his employees. Its refusal is defined
by the National Labor Relations Act (Sec. 8(a) (1) (5)) as an unfair labor practice. This, then,
was the issue. It is important to note that there was no agreement in effect as to hiring and
wages between Joyce and petitioners. Even if we were to accept the lower court's finding that
the picketing was to destroy Joyce's sub-contracts, it was still arguably to prevent an unfair
labor practice.
1
The cases on which most reliance is placed by respondents are United
Automobile Workers v. Russell, 356 U.S. 634, 7S S.Ct. 932, 2 L.Ed.2d 1030 {195S), and
United Construction Workers v. Laburnum Corp.,

____________________

1
Rights of Employees. Sec.7. Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or protection, shall also have the
right to refrain from any or all of such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employment as authorized in section
8(a) (3).
Unfair Labor Practices. Sec. 8. (a) It shall be an unfair labor practice for an employer
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; * * *
(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of
section 9(a).
The cases on which most reliance is placed by respondents are United Automobile
Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958), and United
Construction Workers v. Laburnum Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954).
It will be seen that these two cases, and others similar to them, were distinguished by the
Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct.
773, 3 L.Ed.2d 775 (1959), commonly referred to as the second Garmon case. That case
involved a controversy between union and employer in the classic case for National Labor
Relations Board jurisdiction. Petitioner was a union and respondents were co-partners in the
business of selling lumber. The latter asked for an injunction and damages. The union had
sought from respondents an agreement to retain in their employ only those workers who were
already members of the union, or who applied for membership within thirty days.
Respondents refused, claiming that none of their employees had shown a desire to join a
union, and that, in any event, they could not accept such an arrangement until one of the
unions had been designated by the employees as a collective bargaining agent. The union
began to picket peacefully respondents' place of business and exert pressure on customers and
suppliers to persuade them to stop dealing with respondents.
The court said:
In determining the extent to which state regulation must yield to subordinating federal
authority, we have been concerned with delimiting areas of potential conflict; potential
conflict of rules of law, of remedy, and of administration. Garmon, supra, at 241, 242.
We have necessarily been concerned with the potential conflict of two law-enforcing
authorities, with the disharmonies inherent in two systems, one federal the other state, of
inconsistent stands of substantive law and differing remedial schemes. But the unifying
consideration of our decisions has been with regard to the fact that Congress has entrusted
administration of the labor policy for the nation to a centralized administrative agency, armed
with its own procedures, and equipped with its specialized knowledge and cumulative
experience. Id., at 242.
The difficulty was thus expressed:
Even the States' salutary effort to redress private wrongs or grant compensation for past
harm cannot be exerted to regulate activities that are potentially subject to the exclusive
federal regulatory scheme. See Garner v. Teamsters Union, 346 U.S. 485, 492-497. It may be
that an award of damages in a particular situation will not, in fact, conflict with the active
assertion of federal authority. The same may be true of the incidence of a particular state
injunction. To sanction either involves a conflict with federal policy in that it involves
allowing two law-making sources to govern. Id., at 247.
The apparent discrepancy with prior holdings was thus disposed of:
It is true that we have allowed the States to grant compensation for the consequences, as
defined by the traditional law of torts, of conduct marked by violence or imminent threats to
the public order. United Automobile Workers v. Russell, 356 U.S. 634; United Construction
Workers v. Laburnum Corp., 347 U.S. 656. We have also allowed the States to enjoin such
conduct. Youngdahl v. Rainfair, 355 U.S. 131; Auto Workers v. Wisconsin Board, 351 U.S.
266. State jurisdiction has prevailed in these situations because the compelling state interest
in the scheme of our federalism, in the maintenance of domestic peace is not overridden in
the absence of clearly expressed congressional direction. We recognize that the opinion in
United Construction Workers v. Laburnum Corp., 347 U.S. 656, found support in the fact that
the state remedy had no federal counterpart. But that decision was determined, as is
demonstrated by the question to which review was restricted, by the type of conduct'
involved, i.e., intimidation and threats of violence.' In the present case there is no such
compelling state interest. Id., at 247, 248.
Finally the court held:
When an activity is arguably subject to Section 7 or Section 8 of the Act, the States as
well as the federal courts must defer to the exclusive competence of the National Labor
Relations Board if the danger of state interference with national policy is to be averted. Id.,
at 245.
[Headnote 2]
The application of the foregoing to the present case is clear. A state court may not, in these
circumstances, exercise jurisdiction of a given controversy which is arguably subject, to the
prohibitions or protections of the National Labor Relations Act. The National Labor Relations
Board must determine initially whether the federal act applies to the circumstances giving rise
to the litigation.
Here it is conceded that interstate commerce is involved and that the picketing was
peaceful. The union's activity may arguably have been protected or the employer's actions
prohibited, depending upon the application of any one of several sections of the National
Labor Relations Act.
Garmon compels us to grant the application for writ of prohibition as against the
respondent court and the judge thereof, and it is so ordered. The judgment and sentence for
contempt are annulled.
____________
81 Nev. 495, 495 (1965) Ex Parte Wheeler
In the Matter of the Application of CARL D.
WHEELER For a Writ of Habeas Corpus.
No. 4983
October 19, 1965 406 P.2d 713
Appeal from an order of the Second Judicial District Court, Washoe County, John E.
Gabrielli, Judge, denying application for habeas corpus.
Habeas corpus proceeding by prisoner seeking release on bail pending murder trial. The
lower court denied relief, and the prisoner appealed. The Supreme Court, Thompson, J., held
that determination that testimony of police officer relating dying declaration of victim that
defendant shot him without provocation was sufficient to meet constitutional standard of
evident proof or great presumption sufficient to justify denial of bail to defendant indicted
for murder was not abuse of discretion.
meet constitutional standard of evident proof or great presumption sufficient to justify denial
of bail to defendant indicted for murder was not abuse of discretion.
Order affirmed.
Carl F. Martillaro, of Carson City, for Applicant.
Reno, and R. Gaynor Berry, Deputy District Attorney, of Reno, for Respondent.
1. Bail.
Words all persons shall be bailable by sufficient sureties; unless for capital offenses when proof is
evident, or presumption great, as used in constitutional provision for bail, favor bail and are consonant
with presumption of innocence. Const. art. 1, 7.
2. Criminal Law.
Punishment should follow conviction, not precede it.
3. Bail.
All offenses are bailable, including capital offenses, as matter of right, and right is absolute in noncapital
case, but limited if capital offense is involved when proof is evident or presumption great. Const. art. 1,
7; NRS 178.025.
4. Bail.
Where defendant is indicted for capital offense and applies for admission to bail, burden rests upon state
to show that right to bail is limited rather than absolute. Const. art. 1, 7; NRS 178.025.
5. Bail.
With respect to homicide prosecutions, only first-degree murder is affected by constitutional limitation on
right to bail. Const. art. 1, 7; NRS 200.030, subd. 4.
6. Bail.
Where defendant is indicted for capital offense and applies for admission to bail, court, in examining
proof offered by state to determine whether elements of capital offense may exist, may give no weight to
indictment or information, as such is not proof as contemplated by constitutional provision governing bail
and does not create presumption of guilt. Const. art. 1, 7.
7. Bail.
Some competent evidence tending to prove commission of capital offense must be offered before
accused's right to bail may be limited. Const. art. 1, 7; NRS 178.025.
8. Bail.
In evaluating amount of proof needed to defeat bail in case of defendant indicted for capital offense,
lower court is granted broad discretion.
9. Criminal Law.
Order releasing defendant indicted for capital offense on bail is not appealable, and it is only when bail is
denied, or amount fixed is excessive, that reviewing court may entertain appeal to
review lower court's exercise of discretion.
amount fixed is excessive, that reviewing court may entertain appeal to review lower court's exercise of
discretion.
10. Habeas Corpus.
On habeas corpus hearing for release on bail of defendant indicted for capital offense, state need not
prove accused's guilt beyond reasonable doubt.
11. Habeas Corpus.
Where defendant is indicted for capital offense and applies for admission to bail, state must produce
enough evidence to satisfy court that capital offense has been committed by defendant and that resolution
of habeas corpus application falls within area of its discretion.
12. Bail.
How much evidence is enough to satisfy constitutional provision that all persons shall be bailable by
sufficient sureties unless for capital offenses when proof is evident or presumption great must be resolved
on case by case basis. Const. art. 1, 7.
13. Bail.
Once determination is made on issue whether there is enough evidence to satisfy constitutional limitation
on right to bail in capital cases where proof is evident, other information unrelated to guilt of accused, but
relevant to main purpose of bail, such as prior criminal record of accused, attempted escapes, community
associations, and employment opportunities, may be received to aid court in finally resolving matter of
bail. Const. art. 1, 7.
14. Homicide.
Record showing that police officer, on arriving at apartment in response to call that shooting had
occurred, noticed man known to him lying on the floor, that man was bleeding profusely from gaping chest
wound, that he appeared to be in extremis, that he stated he thought he was about to die, and that he briefly
related circumstances of shooting to police officer established appropriate foundation for relation of such
statement as dying declaration.
15. Habeas Corpus.
Failure to present information as to defendant's prior criminal record, at habeas corpus hearing relative to
right of defendant indicted for murder to release on bail, by authenticated records rather than by
prosecutor's comment was of no moment where information was conceded to be correct.
16. Bail.
Determination that testimony of police officer relating dying declaration of victim that defendant shot him
without provocation was sufficient to meet constitutional standard of evident proof or great presumption
sufficient to justify denial of bail to defendant indicted for murder was not abuse of discretion. Const. art.
1, 7.
OPINION
By application for habeas corpus to the district court, Carl Wheeler sought release on bail,
pending his trial for murder.
for murder. The procedure is authorized by NRS 34.530. That court denied habeas relief and
this appeal followed. NRS 34.380 (3). We heard oral arguments eleven days before trial was
to commence in the district court. Accordingly, we departed from normal practice and
decided the appeal that day, September 17, 1965, affirming the order entered below. This
opinion is in explanation of our ruling.
The appeal is mainly concerned with the quantum of proof needed to satisfy the
constitutional standard for bail in a capital case. Nev. Const. art. 1, 7, provides that All
persons shall be bailable by sufficient sureties; unless for Capital Offences when the proof is
evident, or the presumption great. Using the quoted language conversely, the legislature has
provided that No person shall be admitted to bail where he is charged with an offense
punishable with death when the proof is evident or the presumption great, NRS 178.025, and
has invested the court with discretion to evaluate the proof in all cases where the punishment
is death, NRS 178.020. Here the murder prosecution was initiated by grand jury indictment.
The proceedings before that body were secret (NRS 172.320-172.340; see also dictum
Victoria v. Young, 80 Nev. 279, 392 P.2d 509) and not available for court evaluation on the
habeas hearing for release on bail. Because of this fact the state offered some evidence to
implicate the accused, which was not controverted. That evidence was the testimony of a
police officer who related what is claimed to be the dying declaration of the deceased that
Wheeler shot him without provocation. It was contended below, and here, that such evidence,
standing alone, does not meet the constitutional standard of evident proof or great
presumption. The foundation for the officer's testimony is questioned, and also the credit to
be accorded the deceased's statement as related by the officer. We hold that the lower court,
in the exercise of its discretion, could properly conclude that the constitutional standard was
satisfied.
[Headnotes 1-4]
1. Our resolution of this appeal must begin with the obvious emphasis of the
constitutional provision for bail.
Again the words are: All persons shall be bailable by sufficient sureties; unless for Capital
Offences when the proof is evident or the presumption great. Those words favor bail and are
consonant with the presumption of innocence. State v. Konigsberg, 33 N.J. 367, 164 A.2d
740. The central thought is that punishment should follow conviction, not precede it.
Accordingly, all offenses are bailable, including capital offenses, as a matter of right. That
right is absolute in a non-capital case, but limited if a capital offense is involved. The
limitationwhen the proof is evident or the presumption great. Within the area of
limitation a court is invested with a judicial discretion to resolve the matter. Our view of the
constitutional emphasis is contrary to certain expressions contained in earlier opinions of this
court. For example, in Ex parte Malley, 50 Nev. 248, 256 P. 512, where the charge was
embezzlement, the court said, In a proceeding of this character the petitioner is presumed to
be guilty of the offenses charged in the indictments. We now reject that statement as wholly
incompatible with the presumption that an accused is innocent of the offense charged until
proven guilty and convicted. Similarly do we reject as unsound any language in Ex parte
Finlen, 20 Nev. 141, Ex parte Nagel, 41 Nev. 86, 167 P. 689, and State v. Teeter, 65 Nev.
584, 200 P.2d 657, indicating that an accused has the burden of showing that the proof of his
guilt of a capital offense is not evident or the presumption thereof not great when applying for
release on bail.
1
The burden rests upon the state to show that the right to bail is limited rather
than absolute. State v. Konigsberg, supra; Ford v. Dilley, 174 Iowa 243, 156 N.W. 513; Ex
parte Thrash, 167 Tex.Crim. 409, 320 S.W.2d 357.
[Headnotes 5-7]
To be sure, the limitation upon the right to bail is vaguely defined. A metes and bounds
description of its scope is not possible. There are, however, significant guidelines. A
prerequisite for limiting the right to bail is the commission of a capital offenseone which
may be punishable by death. NRS 178.025; 178.020; 178.180.
____________________

1
Cases on point are collected in the annotation, 89 A.L.R.2d 855.
An offense for which the death penalty is not proscribed does not fall within the delimiting
language. Thus, in a homicide prosecution, only first degree murder (NRS 200.030 (4)) is
affected by the constitutional limitation. Lesser included offenses are not touched. Therefore
the initial task of the court to which the habeas application is addressed is to examine the
proof offered by the state and deduce therefrom whether the elements of a capital offense may
exist. In discharging this task no weight may be given the pleadingthe indictment or
informationfor it is not proof as contemplated by the constitution, nor does it create a
presumption of guilt. Some competent evidence tending to prove the commission of a capital
offense must be offered before the accused's right to bail may be limited.
[Headnotes 8-12]
In evaluating the amount of proof needed to defeat bail the lower court is granted broad
discretion. Indeed, if its discretion is exercised in favor of the applicant and his release on bail
is ordered, we may not review that ruling. It is not appealable. Only when bail is denied (or
the amount fixed is excessive) may we entertain an appeal to review the lower court's
exercise of discretion. Thus, the issue on review is always whether the lower court abused its
discretion in denying bail. We think it apparent that, on a habeas hearing for release on bail,
the state need not prove the accused's guilt beyond a reasonable doubt. That degree of proof is
reserved for for trial and is not what the writers of our constitution had in mind in providing
for bail. On the other hand, the state must produce enough evidence to satisfy the court that a
capital offense has been committed by the defendant and that resolution of the habeas
application falls within the area of its discretion. How much evidence is enough evidence
must of necessity be resolved on a case by case basis. A fixed rule cannot be formulated.
[Headnote 13]
Once that determination is made, other information unrelated to the guilt of the accused,
but relevant to the main purpose of bailto encourage the accused's presence before the
court when needed and particularly at trialmay be received to aid the court in finally
resolving the matter.
main purpose of bailto encourage the accused's presence before the court when needed and
particularly at trialmay be received to aid the court in finally resolving the matter. We say
information, (not proof, for it is not possible to prove whether the defendant will appear at
a future time), and have in mind such matters as the prior criminal record of the accused, if
any, attempted escapes from confinement, community associations, and employment
opportunities, which may bear upon the probability of his presence before the court when
needed.
It is within this context that we are to review the ruling below.
[Headnote 14]
2. At the bail hearing the state presented the testimony of a Reno city police officer who
had responded to a call that a shooting had occurred in an apartment on Yori Avenue. Upon
arriving there he noticed a man, known to him as Chuck Hughes, lying on the kitchen floor.
Hughes was bleeding profusely from a gaping chest wound. He appeared to be in extremis,
and stated that he thought he was about to die.
2
He then briefly related the circumstances of
the shooting. Hughes died twelve days later. The record shows an appropriate foundation for
the relation of Hughes' statement as a dying declaration, State v. Teeter, supra; Ex parte
Nagel, supra; and, if accepted as wholly true, could supply the basis for a finding of the
essential components of first degree murder.
____________________

2
The pertinent testimony:
Q. Now, then, what happened after you made these observations that you have just related?
A. After I entered the kitchen, and just general observations of what 1 have already said, I knelt down beside
Hughes and I told him who I was. And he said, Yes, I know.'
I asked him, I said, Chuck, do you think you are going to die?'
And he says. Yes, I think I am. I hurt awfully bad.'
And I asked him, I said, Who shot you?'
He says, Wheeler.'
And I says, You mean Carl Wheeler?'
And he says, Yes.'
And I asked him, Why did he shoot you?'
And he says, I don't know.' He said, I just walked in the back door and he told me he had to kill me, and he
started shooting.'
And I asked him, Well, Chuck, did Wheeler know that you was coming over?'
And he said,'Yes. I had called him on the phone,' and he said, I walked in the back door, and he said, I've
got to kill you, and then he started shooting.'
And I asked him again if he thought that he was going to die,
for the relation of Hughes' statement as a dying declaration, State v. Teeter, supra; Ex parte
Nagel, supra; and, if accepted as wholly true, could supply the basis for a finding of the
essential components of first degree murder. NRS 200.030(4). Of course, the weight or credit
to be given that statement is for the jury at trial.
[Headnote 15]
Before the lower court ruled, the prosecutor and defense counsel each made comment
concerning the accused's prior criminal record and also referred to the fact that he was on bail
from another state when the shooting at hand took place. This information was relevant to the
issue before the court, and of value in deciding the matter. It is, of course, preferable that such
information be presented by authenticated records (rather than by the prosecutor's comment)
and marked as exhibits in evidence. This was not done. However, the failure to do so is of no
moment here, for the information was conceded to be correct.
____________________
and he said, Yes, I think that I'm going to die.' He said, I hurt awfully bad.'
Q. Did you inquire of Mr. Hughes as to whether he had any objects or guns in his hand?
A. I asked him if he had a gun when he entered the house. And he said no. I asked him, I said, Well, did you
make any motions as if you was going to harm Mr. Wheeler?' And he said no. He said, I was just looking for
help.'
Q. Now, did you have any further conversation with him relative to his condition before the ambulances
came?
A. Yes. I went back over these same questions with him three times. I talked to him about another crime that
had occurred prior to his being shot there. And at one time just before the ambulance service arrivedwell, he
kept asking for water, and I told him that he could not have water. And he would try to move around, and I
would try to keep him as still as possible until the ambulance arrived.
And just before the arrival of the ambulance he kind of stiffened out and he asked me if I would hold his
hand, he thought thatI think if I remember exactly the words, I think he said, I think this is it.' And I held his
hand and wiped his face with this sweat towel that had been given to me in the presence of the other officers in
the room at that time.
When the ambulance service arrived, and as soon as they attempted to load him onto the guerney [sic], he
became even more unconscious and he became even more white than he was before.
[Headnote 16]
The order below denying petitioner's application for release on bail is affirmed.
____________
81 Nev. 503, 503 (1965) Payne v. State
JOE ALLEN PAYNE, Appellant, v. THE STATE
No. 4898
October 25, 1965 406 P.2d 922
Appeal from first degree murder from the Eighth Judicial District Court, Clark County;
John Mowbray, Judge.
Prosecution for murder for killing of intended robbery victim. From conviction of
first-degree murder and judgment in the trial court, defendant appealed. The Supreme Court,
Zenoff, D. J., held that where defendant attempted robbery in building and struggle ensued
between defendant and victims which resulted in money being retrieved by victims but which
continued onto sidewalk where defendant drew knife and killed one of victims, jury was
properly instructed on felony-murder doctrine and issue of premeditation and deliberation
required for first-degree murder.
Affirmed.
Harvey Dickerson, Attorney General, Edward C. Marshall, District Attorney, and Lois N.
Bargmann, Deputy District Attorney, of Clark County, for Respondent.
1. Homicide.
The felony-murder rule is that any homicide committed while perpetrating or attempting felony is
first-degree murder. NRS 200.030.
2. Homicide.
Original purpose of felony-murder rule was to deter felons from killing negligently or accidentally by
holding them strictly responsible for killings resulting from felony or attempted felony.
81 Nev. 503, 504 (1965) Payne v. State
responsible for killings resulting from felony or attempted felony. NRS 200.030.
3. Criminal Law.
The res gestae of crime begins at point where indictable attempt is reached and ends where chain of
events between attempted crime or completed felony is broken, with that question usually being fact
determination for jury.
4. Homicide.
Where defendant attempted robbery in building and struggle ensued between defendant and victims
which resulted in money being retrieved by victims but which continued onto sidewalk where defendant
drew knife and killed one of victims, there was no break in chain of events so that attempted robbery and
killing were part of one continuous transaction, and jury was properly instructed on felony-murder doctrine.
NRS 200.030, 200.380.
5. Homicide.
Whether a defendant was animated by malice, express or implied, is question for jury. NRS 200.020.
6. Homicide.
A killing may be characterized as deliberate and premeditated murder if it is not instant effect of
impulse and if there is time for choice to be made as result of thought, however short the struggle between
intention and act and even though intent is formed at very moment of killing.
7. Homicide.
Evidence that defendant drew knife which was deadly weapon during struggle following attempted
robbery in which he had not displayed knife and stabbed victim twice in vital areas of body was sufficient
to justify submission of issue of premeditation and deliberation required for crime of first-degree murder.
NRS 200.030.
OPINION
This is an appeal from a conviction of first degree murder. Judgment was entered on
November 5, 1964, and the defendant was sentenced to life in prison without possibility of
parole. He assigns as prejudicial error the following:
1. That the trial court erroneously instructed the jury on the felony-murder doctrine since,
under the facts disclosed, that doctrine would not apply as the attempted felony (robbery in
this instance) was terminated and the killing took place while the defendant was in the act of
escaping.
81 Nev. 503, 505 (1965) Payne v. State
2. That the trial court erred by instructing the jury as to the elements of first degree murder
requiring a premeditated and deliberate killing.
On December 1, 1963, Kuk Gin Roe and his wife, Kum Ja Roe, went to the Western
Union Telegraph Office in Las Vegas to wire the sum of $150 to California. Kuk Gin Roe
had given his wife the money to hold. As she was standing there, the defendant, who had
been waiting in the lobby of the Western Union Office, jumped at Mrs. Roe and grabbed the
money out of her hand. She grabbed it back and the defendant took it again and threw Mrs.
Roe to the floor. A struggle ensued in which her husband joined Mrs. Roe. It started inside
the Western Union Office but continued out the door and in front of the building. At some
point during this struggle, the defendant used a knife and stabbed the deceased twice, killing
him. Thereafter, the defendant fled the scene and was later apprehended, at which time the
police found in his possession a small part of a $100 bill that had been taken from Mrs. Roe.
The other part of the bill and the remainder of the $150 which defendant had attempted to
steal, had been retrieved by Mrs. Roe, but it is not clear at what point in the struggle with
defendant she accomplished this.
1. Appellant contends that his attempt to commit the robbery had been interrupted and
was terminated and that he was in the act of escape when the killing occurred. This, he
claims, takes him outside the scope of the felony-murder rule and also beyond the scope of
premeditation and deliberation. We do not agree.
[Headnote 1]
The felony-murder rule simply stated is that any homicide, committed while perpetrating
or attempting a felony, is first degree murder. This doctrine is contained in NRS 200.030
which defines degrees of murder.
All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by
any kind of willful, deliberate and premeditated killing, or which shall be committed in the
perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary * * * shall be
deemed murder of the first degree; and all other kinds of murder shall be deemed murder of
the second degree."
81 Nev. 503, 506 (1965) Payne v. State
kinds of murder shall be deemed murder of the second degree. (Emphasis added.)
NRS 200.380 defines robbery.
1

[Headnote 2]
The original purpose of the felony-murder rule was to deter felons from killing negligently
or accidentally by holding them strictly responsible for the killings that are the result of a
felony or an attempted one. People v. Washington, 44 Cal.Rptr. 442, 402 P.2d 130 (1965). In
the majority of jurisdictions, such a homicide acquires first degree murder status without the
necessity of proving premeditation and deliberation. The heinous character of the felony is
thought to justify the omission of the requirements of premeditation and deliberation. Faced
with the problem of determining when the underlying felony terminated for the purpose of
applying the felony-murder doctrine, the courts have generally spoken in terms of the res
gestae of the crime.
[Headnote 3]
The point at which the crime was perpetrated or attempted has been subject to varying
degrees and wide latitude. The great weight of authority appears to apply the principle of
causation; that is to say, Was there a break in the chain of events between the initial crime
and the homicide? Commonwealth v. Kelly, 337 Pa. 171, 10 A.2d 431 (1940). Such
causation requires that the killing be linked to or part of the series of incidents so as to be one
continuous transaction, thereby bringing it within the statutory felony-murder theory. Bizup v.
People, 150 Colo. 214, 371 P.2d 786 (1962).
____________________

1
NRS 200.380. Robbery is the unlawful taking of personal property from the person of another, or in his
presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or
property, or the person or property of a member of his family, or of anyone in his company at the time of the
robbery. Such force or fear must be used to obtain or retain possession of the property, or to prevent or
overcome resistance to the taking, in either of which cases the degree of force is immaterial. If used merely as a
means of escape, it does not constitute robbery. Such taking constitutes robbery whenever it appears that,
although the taking was fully completed without the knowledge of the person from whom taken, such knowledge
was prevented by the use of force or fear.
81 Nev. 503, 507 (1965) Payne v. State
The res gestae of the crime begins at the point where an indictable attempt is reached and
ends where the chain of events between the attempted crime or completed felony is broken,
with that question usually being a fact determination for the jury. (See discussion in 51 Dick.
L.Rev. 12 (1946)).
[Headnote 4]
Our own court has subscribed to this rule: When the homicide is within the res gestae of
the initial crime, and is an emanation thereof, it is committed in the perpetration of that crime
in the statutory sense. State v. Fouquette, 67 Nev. 505, 528, 221 P.2d 404 (1950).
The res gestae embraces not only the actual facts of the transaction and the circumstances
surrounding it, but the matters immediately antecedent to and having a direct causal
connection with it, as well as acts immediately following it and so closely connected with it
as to form in reality a part of the occurrence. Id., at 529.
For example, our court has held that where the defendant robbed a service station attendant
in California, kidnapped him, and drove him to Sparks where he killed his victim by shooting
him in the back of the head, the homicide took place during the perpetration of the robbery.
Archibald v. State, 77 Nev. 301, 362 P.2d 721 (1961). In State v. Williams, 28 Nev. 395, 82
P. 353 (1905), it was held that a homicide was committed in the perpetration of the robbery
when it occurred after the robbery at another place approximately two miles distant.
In Fouquette, supra, the court pointed out that Robbery, unlike burglary is not confined to
a fixed locus, but is frequently spread over considerable distance and varying periods of
time. Id., at 527.
The perpetration' of the crime of robbery is not completed the moment the stolen
property is in the possession of the robber. * * * The escape of the robber with his ill-gotten
gains by means of arms is as important to the execution of the robbery as gaining possession
of the property. Id., at 527 and 528.
Appellant asks this court to follow the example of the New York court in People v.
Marwig, 227 N.Y. 382, 125 N.E. 535 {1919), which laid down a more restricted and
limited rule to govern felony-murder.
81 Nev. 503, 508 (1965) Payne v. State
125 N.E. 535 (1919), which laid down a more restricted and limited rule to govern
felony-murder. However, even if this court were to endorse that decision, it would not change
our holding in this case. In People v. Marwig, supra, there was a clear break in the chain of
events so that the robbery and killing were not part of one continuous transaction. The
robbery took place within a jewelry store, the participants left, and the attempted
apprehension by the store owner took place outside the building and up the block. That is not
true in our case where there was one continuous struggle inside the building and out onto the
sidewalk where the killing took place. The Marwig case is clearly not applicable to our
factual situation.
To what extent this court could apply the fine line between escape or termination of the
felony must be left to the facts and circumstances of each case. We have no difficulty
agreeing with the lower court and jury here.
2. The appellant claims that there was no basis on which he could have been found guilty
of first degree murder under NRS 200.030 which requires a willful, deliberate and
premeditated killing.
[Headnote 5]
Whether a defendant was animated by malice, express or implied, is within the province of
the jury. See Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964), State v. Acosta, 49 Nev. 184,
242 P. 316 (1926). Under NRS 200.020 malice shall be implied when no considerable
provocation appears, or when all the circumstances of the killing show an abandoned and
malignant heart.
The Idaho Supreme Court ruled in State v. Snowden, 79 Idaho 266, 313 P.2d 706 (1957),
that a knife can be classified as a deadly weapon by the use to which it is put and the results
of its use. The court went on to point out that in the absence of circumstances disproving
malice, malice may be presumed from the intentional use of a deadly weapon in a deadly and
dangerous manner.
[Headnote 6]
To make a killing deliberate as well as premeditated, it is unnecessary that the intention to
kill shall have been entertained for any considerable length of time.
81 Nev. 503, 509 (1965) Payne v. State
been entertained for any considerable length of time. It is enough if there is time for the mind
to think upon or consider the act, and then determine to do it. If, therefore, the killing is not
the instant effect of impulseif there is hesitation or doubt to be overcome, a choice made as
the result of thought, however short the struggle between the intention and the actit is
sufficient to characterize the crime as deliberate and premeditated murder. (See Clark &
Marshall on Crimes, Sec. 10.09, at 613.) In other words, one may be guilty of murder in the
first degree although the intent to commit such a homicide is formed at the very moment the
fatal shot [is] fired. State v. Hall, 54 Nev. 213, 13 P.2d 624, 632 (1932). In this case, the
court upheld an instruction that:
The intention [to kill] may be ascertained or deduced from the facts and circumstances of
the killing such as the use of a weapon calculated to produce death, the manner of the use,
and the attendant circumstances characterizing the act. Id., at 632.
[Headnote 7]
In the case at bar, the jury could have found a deliberate and premeditated killing from
the following facts and course of conduct on the part of the defendant:
1. The defendant drew a knife which was a deadly weapon.
2. During the act of robbery he did not display the knife, so he had to make the decision to
use it when the struggle ensued.
3. He stabbed the victim twice in vital areas of his body where death could and did result.
We find the instructions on premeditation and deliberation proper.
The lower court is directed to give appellant's attorney the certificate specified in
Subsection 3 of NRS 7.260 to enable him to recover compensation as provided in Subsection
4 of said statute.
Affirmed.
____________
81 Nev. 510, 510 (1965) Thurlow v. State
SEWELL CARLTON THURLOW, Jr., Appellant, v.
No. 4784
October 27, 1965 406 P.2d 918
Judge.
The defendant was convicted of murder. The trial court rendered judgment, and the
defendant appealed. The Supreme Court, Thompson, J., held that defendant charged with
killing victim by striking and beating him on the head with metal instrument was prejudiced
by admission of evidence seized in illegal search, where state's case rested wholly on
circumstantial evidence, doctor testified that medical cause of death was severe injury to
brain due to blows of heavy and possibly sharp object, crowbar which was illegally received
in evidence was, by plain inference, the instrument used to accomplish death, the prosecutor
conjectured that such was the fact, other items of illegally admitted evidence tended to
connect defendant with the crime, and there was reasonable possibility that this evidence
might have contributed to conviction.
Mendoza, Foley & Garner, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Carson City; William P. Beko, District Attorney,
Tonopah, for Respondent.
1. Arrest; Criminal Law; Searches and Seizures.
Warrantless search of defendant's automobile two hours after defendant had been arrested and taken to
police station and booked for murder was not incident to arrest, and search and seizure violated Fourth
Amendment, and evidence seized in the search was inadmissible. U.S.C.A.Const. Amend. 4.
2. Arrest.
A search can be incident to arrest only if it is substantially contemporaneous with arrest and is confined
to immediate vicinity of arrest.
3. Courts.
Search and seizure decision of United States Supreme Court was not given retrospective significance
when it was followed in a criminal case tried before the decision, where the decision
merely applied well-established search and seizure law to the facts of that case.
a criminal case tried before the decision, where the decision merely applied well-established search and
seizure law to the facts of that case.
The burden of proving consent to search rests with state; clear and persuasive evidence is required,
particularly when the suspect is under arrest; in such circumstances a court must distinguish a peaceful
submission by arrested suspect to authority of law enforcement officer from an intelligent and intentional
waiver of a constitutional right. U.S.C.A.Const. Amend. 4.
Defendant's all right response to police officer's statement, given shortly after arrest, that officer was
going to take defendant to police station and book him and return and search the defendant's automobile
was not consent to search of automobile at that time or later.
6. Criminal Law.
Illegally obtained evidence may sometimes be a relatively insignificant part of the total evidence and
have no effect on outcome of trial.
7. Criminal Law.
An automatic reversal is not mandated by unreasonable search and seizure; in each case the Supreme
Court's task is to review the record and determine whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction. NRS 169.110.
8. Criminal Law.
Defendant charged with killing victim by striking and beating him on head with metal instrument was
prejudiced by admission of evidence seized in illegal search, where state's case rested wholly on
circumstantial evidence, doctor testified that medical cause of death was severe injury to brain due to blows
of heavy and possibly sharp object, a crowbar, which was illegally received in evidence was, by plain
inference, the instrument used to accomplish death, the prosecutor conjectured that such was the fact, other
items of illegally admitted evidence tended to connect defendant with the crime, and there was reasonable
possibility that this evidence might have contributed to conviction. NRS 169.110.
OPINION
Thurlow was convicted of murder, after a jury trial in the district court at Tonopah,
Nevada. At the trial evidence seized in a search of his automobile was admitted over
objection that the search and seizure violated the Fourth Amendment. He has appealed, again
asserting the unreasonableness of the search and seizure. We rule that the conviction must
be set aside and the case remanded for another trial.
rule that the conviction must be set aside and the case remanded for another trial.
The essential facts are not disputed. The dead body of Thayer Wilshire was found on
November 6, 1963, near Tonopah. Two days later a criminal complaint was filed, charging
Thurlow and Nancy Aymor with murder. Albuquerque, New Mexico, police, acting on an
all-points bulletin sent by telegraph, arrested the defendants. A police officer observed Nancy
Aymor sitting in Thurlow's parked car. The officer went to the car, arrested her, and learned
that Thurlow was in a trailer house about fifty feet away. Thurlow surrendered after being
ordered to come out. These arrests occurred about 2:00 p.m. on November 8. Before leaving
the scene of the arrests, the officer locked the car. A search for evidences of a crime was not
made at that time. Thurlow and Aymor were taken to the police station and booked for
murder.
About two hours later, police officers returned to the scene of the arrests where they
discovered that the car had been broken into and Thurlow's mother and others were removing
articles therefrom. Those articles were returned to the car and the car was removed to an
impound area about 3 miles from the scene of the arrests. The next day, November 9, at about
1:15 p.m., officers from Tonopah, accompanied by policemen from Albuquerque, searched
the car and seized the following items which were later admitted into evidence at the trial: a
crowbar found in the trunk of the car which, upon scientific analysis, was shown to have a
minute spot of human blood upon its surface; a piece of cardboard found between the radiator
and the grill bearing the handwritten words, Frontier Tavern, Austin, Nevada; a section of
the front seat cover with Type O human blood on it; a sample of human blood taken from
the inside of the right window of the car; and from the outside surface of the car samples of
human blood and hair.
[Headnotes 1, 2]
1. A search warrant was not secured. The search and seizure occurred about 24 hours after
Thurlow's arrest at a different place and may not, therefore, be deemed incident to the
arrest.
deemed incident to the arrest. A search can be incident to arrest only if it is substantially
contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.
Stoner v. California, 376 U.S. 483 (1964); Agnello v. United States, 269 U.S. 20 (1925).
The jury below found Thurlow guilty on February 18, 1964. On March 23, 1964, Stoner v.
California, supra, and Preston v. United States, 376 U.S. 364 (1964), were handed down by
the United States Supreme Court. The Preston case squares factually with the instant matter.
There, as here, the suspects were arrested and their car, which was not searched at the time of
the arrest, was removed and stored at a garage. After the suspects had been booked at the
station, the officers made two separate searches of the car and seized items which were later
used as trial evidence. The High Court wrote: It is argued that the search and seizure was
justified as incidental to a lawful arrest. Unquestionably, when a person is lawfully arrested,
the police have the right, without a search warrant, to make a contemporaneous search of the
person of the accused for weapons or for the fruits of or implements used to commit the
crime. Weeks v. United States, 232 U.S. 383, 392 (1914); Agnello v. United States, 269 U.S.
20, 30 (1925). This right to search and seize without a search warrant extends to things under
the accused's immediate control, Carroll v. United States, supra, 267 U.S., at 158, and to an
extent depending on the circumstances of the case, to the place where he is arrested, Agnello
v. United States, supra, 269 U.S., at 30; Marron v. United States, 275 U.S. 192, 199 (1927);
United States v. Rabinowitz, 339 U.S. 56, 61-62 (1950). The rule allowing contemporaneous
searches is justified, for example, by the need to seize weapons and other things which might
be used to assault an officer or effect an escape, as well as by the need to prevent the
destruction of evidence of the crimethings which might easily happen where the weapon or
evidence is on the accused's person or under his immediate control. But these justifications
are absent where a search is remote in time or place from the arrest. Once an accused is under
arrest and in custody, then a search made at another place, without a warrant, is simply
not incident to the arrest.
then a search made at another place, without a warrant, is simply not incident to the arrest.
Agnello v. United States, supra, 269 U.S., at 31. Here, we may assume, as the Government
urges, that, either because the arrests were valid or because the police had probable cause to
think the car stolen, the police had the right to search the car when they first came on the
scene. But this does not decide the question of the reasonableness of a search at a later time
and at another place. See Stoner v. California, * * *. The search of the car was not undertaken
until petitioner and his companions had been arrested and taken in custody to the police
station and the car had been towed to the garage. At this point there was no danger that any of
the men arrested could have used any weapons in the car or could have destroyed any
evidence of a crimeassuming that there are articles which can be the fruits' or implements'
of the crime of vagrancy. Cf. United States v. Jeffers, 342 U.S. 48, 51-52 (1951). Nor, since
the men were under arrest at the police station and the car was in police custody at a garage,
was there any danger that the car would be moved out of the locality or jurisdiction. See
Carroll v. United States, supra, 267 U.S., at 153. We think that the search was too remote in
time or place to have been made as incidental to the arrest and conclude, therefore, that the
search of the car without a warrant failed to meet the test of reasonableness under the Fourth
Amendment, rendering the evidence obtained as a result of the search inadmissible. Preston
v. United States, supra, at 367-8.
[Headnote 3]
Here the state suggests that we should not place great reliance upon Preston, for to do so
would accord that opinion retrospective significance. This suggestion is unsound. Preston
merely applied well established search and seizure law to the facts of that case. Agnello v.
United States, supra. Our ruling here does not rest upon Preston, but rather is corroborated by
it. Indeed this court in Whitley v. State, 79 Nev. 406, 386 P.2d 93 (1963), made it clear that a
search and seizure without a warrant and unrelated to the arrest, both as to time and place, is
unlawful.
2. Next the state argues that the record shows consent by Thurlow to the search of his car.
The evidence relied upon is the testimony of an Albuquerque police officer. It was: Q. I
believe it was your testimony that you advised the defendant that you were going to take him
down and book him and return and search the car, is that correct? A. That's true. Q. Do you
recall what the defendant stated to you? A. He said this would be all right. Thurlow testified,
flatly denying that he had consented to the search.
[Headnotes 4, 5]
The burden of proving consent rests with the state. Clear and persuasive evidence is
required, particularly when the suspect is under arrest. Judd v. United States, 190 F.2d 649
(D.C. Cir. 1951); United States v. Rutheiser, 203 F.Supp. 891 (S.D. N.Y. 1962); United
States v. Gregory, 204 F.Supp. 884 (S.D. N.Y. 1962). In such circumstances a court must
distinguish between the peaceful submission by the arrested suspect to the authority of a law
enforcement officer, from an intelligent and intentional waiver of a constitutional right. Dade
v. State, 112 P.2d 1102 (Okl. 1951); United States v. Reckis, 119 F.Supp. 687 (D.C. Mass.
1954). Here Thurlow's all right response to the police officer's statement, given shortly after
his arrest, may not be considered as a consent to the search of his car at that time or later.
United States v. Marra, 40 F.2d 271 (W.D. N.Y. 1930); United States v. Kowal, 197 F.Supp.
401 (D.C. R.I. 1961); Dawson v. State, 175 P.2d 368 (Okl. 1946).
[Headnotes 6-8]
3. Finally, the state suggests that the conviction may be sustained by resort to the harmless
error rule.
1

We agree with the view of California that illegally obtained evidence may sometimes be
a "relatively insignificant part of the total evidence and have no effect on the outcome of
a trial."
____________________

1
NRS 169.110 reads, No judgment shall be set aside, or new trial granted, in any case on the ground of
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
obtained evidence may sometimes be a relatively insignificant part of the total evidence and
have no effect on the outcome of a trial. People v. Parham, 384 P.2d 1001 (Cal. 1963). An
automatic reversal is not mandated by an unreasonable search and seizure. In each case our
task is to review the record and determine whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction. Fahy v. Connecticut, 375
U.S. 85 (1963); Stoner v. California, supra. Applying that standard here, we find prejudicial
error.
The success or failure of the state's case below rested wholly on circumstantial evidence.
Thurlow was charged with killing Wilshire by striking and beating him upon the head with a
metal instrument. No person purporting to be an eye-witness to the homicide testified. A
doctor advised the jury that the medical cause of death was severe injury to the brain, severe
hemorrhaging, severe fractures of the skull due to the blows of a quite heavy and possibly
sharp object. The crowbar which was illegally received in evidence was, by plain inference,
the instrument used to accomplish death. The prosecutor, in jury summation, conjectured that
such was the fact. The other items of illegally admitted evidence tended to connect Thurlow
with the crime charged. It is clear to us that there is a reasonable possibility that the evidence
thus erroneously admitted might have contributed to the conviction. Fahy v. Connecticut,
supra.
Reversed and remanded for a new trial.
Counsel for appellant was court appointed. Accordingly, we direct the District Court to
give him the certificate specified in NRS 7.260(3) to enable him to receive compensation as
provided in NRS 7.260 (4).
____________
81 Nev. 517, 517 (1965) Dalby v. State
EDWARD DALBY, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 4846
October 27, 1965 406 P.2d 916
Appeal from a conviction of robbery, Eighth Judicial District Court, Clark County; John
Mowbray, Judge.
The defendant was convicted of robbery. The trial court rendered judgment, and the
defendant appealed. The Supreme Court, Zenoff, D. J., held that it was not abuse of discretion
to permit witness not named in information to testify at trial. The Court also held that when
the defendant has waived preliminary hearing it is not necessary to file with the information
an original affidavit of credible person verifying the information upon the personal
knowledge of the affiant that the offense was committed. The Court further held that the
refusal to strike testimony concerning fingerprint card which was not received in evidence
was error but that the error was not prejudicial where there was ample other identity evidence
to justify the conviction.
Affirmed.
Harvey Dickerson, Attorney General, Edward G. Marshall, District Attorney, Earl
Gripentrog and Lois N. Bargmann, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Permitting endorsement of names of witnesses on information is largely within discretion of court, and, in
absence of showing of abuse or substantial injury, does not constitute reversible error. NRS 173.080,
subd. 2.
2. Criminal Law.
In absence of evidence in the record to the contrary, there is a presumption that the witness called to
testify whose name is not endorsed on information is one who was not before known to district attorney.
NRS 173.080, subd. 2.
3. Criminal Law.
Permitting witness not named in information to testify at trial was not abuse of discretion, where the court
recessed the trial in the latter part of the afternoon and resumed the trial the following morning, the name
and address of witness were furnished to defendant's counsel, and this afforded him an
opportunity to interview the witness during the recess.
81 Nev. 517, 518 (1965) Dalby v. State
furnished to defendant's counsel, and this afforded him an opportunity to interview the witness during the
recess. NRS 173.080, subd. 2.
If failure to file with information an original affidavit of some credible person verifying the information
upon the personal knowledge of affiant that offense was committed is a defect in an information, it is not
one which is jurisdictional. NRS 173.080, subd. 3.
When a preliminary examination has been waived, it is not necessary that there be filed with the
information an original affidavit of some credible person verifying the information upon the personal
knowledge of the affiant that the offense was committed. NRS 173.080, subd. 3, 173.140, subd. 2.
6. Criminal Law.
Refusal to strike testimony concerning fingerprint card which was not received in evidence was error;
however, the error was not prejudicial where there was ample other identity evidence to justify the
conviction. NRS 169.110.
7. Criminal Law.
Judgment will not be set aside where, upon examination of the entire case, the verdict is manifestly right,
or no other verdict could have been properly returned. NRS 169.110.
OPINION
This is an appeal from a conviction of robbery of a Las Vegas bar. Three assignments of
error are presented and the facts relevant to the particular errors assigned will be presented
during the discussion of the respective contentions.
The questions presented are as follows:
1. May a witness not named in the information be permitted to testify at the trial?
2. When the defendant has waived preliminary hearing, is an information defective under
NRS 173.080(3) for the failure to file with the information an original affidavit of some
credible person verifying the information upon the personal knowledge of the affiant that the
offense was committed?
3. Where testimony is received concerning an exhibit which is later stricken, is the
testimony concerning the exhibit incompetent because the exhibit has fallen? [Headnotes
1-3]
81 Nev. 517, 519 (1965) Dalby v. State
[Headnotes 1-3]
1. NRS 173.080(2) provides: He [the district attorney] shall endorse thereon [the
information] the names of such witnesses as are known to him at the time of filing the same,
and shall also endorse upon such information the names of such other witnesses as may
become known to him before the trial at such time as the court may, by rule or otherwise,
prescribe; but this shall not preclude the calling of witnesses whose names, or the materiality
of whose testimony, are first learned by the district attorney upon the trial.
The witness who was called during the course of the trial and without prior notice to the
defendant was police cadet Gary Lang. The testimony from the witness was supposed to
provide foundation for the admission of a fingerprint card. Defense counsel insisted that the
person, in this instance Lang, who took the fingerprint card be called to testify. There is no
indication as to when the district attorney first learned the name of the prospective witness
and the materiality of his prospective testimony.
The rule in Nevada is clear: Under a statute such as ours the endorsement of names of
witnesses upon an information is largely a matter of discretion with the court; and, in the
absence of a showing of abuse, without some substantial injury as resulted to the accused, an
order permitting such endorsement, even after the trial has commenced, does not constitute of
itself reversible error. State v. Monahan, 50 Nev. 27, 249 P. 566 (1926).
In this instance the court recessed the trial in the latter part of the afternoon and resumed
trial the following morning. The name and address of the witness were furnished to
defendant's counsel. An opportunity thus was afforded him to interview the witness during
the recess. Finally, in the absence of evidence in the record to the contrary, there is a
presumption that a witness called to testify whose name is not endorsed on the information is
one who was not before known to the district attorney. State v. Ceja, 53 Nev. 272, 298 P. 658
(1931).
81 Nev. 517, 520 (1965) Dalby v. State
[Headnotes 4, 5]
2. Appellant further contends that the trial court did not have jurisdiction to try this case
since there was not filed with the information the original affidavit of some credible person
verifying the information upon the personal knowledge of the affiant that the offense was
committed.
If this is a defect in an information, it is not one which is jurisdictional. NRS 173.080(3)
requires this affidavit to be filed when the defendant has not had or waived a preliminary
examination. State v. Jernigan, 75 Nev. 389, 343 P.2d 1015 (1959), clarified this statute
holding that when a preliminary examination has been waived no affidavit need be filed. NRS
173.080 must be read in connection with NRS 173.140(2) which provides the situation where
the affidavit is called for. Since preliminary examination was waived in the instant case, and,
since the situation called for by NRS 173.140 (2) is not present, no affidavit is necessary, and
there is no error.
[Headnote 6]
3. During Cadet Lang's testimony, the prosecution offered into evidence a fingerprint card
from the police files. Defendant objected, but the court allowed the card to go into evidence.
Subsequent testimony by another officer failed to connect the exhibit with the defendant and
on motion made by the defendant after the state rested its case, the court granted the motion
to strike the exhibit. However, the court refused to strike the testimony that was given by the
various witnesses relating to the fingerprint card when it was being admitted into evidence.
Thus we have in the record voluminous testimony concerning a fingerprint card when the
card itself is not in evidence.
Refusal to strike the testimony concerning the fingerprint card which was not received in
evidence was error. People v. Smith, 254 Ill. 167, 98 N.E. 281 (1912); People v. Powell, 87
Cal. 348, 25 P. 481 (1891).
We must therefore be concerned as to whether or not the error in refusing to strike the
testimony constituted prejudicial error and would require a reversal.
81 Nev. 517, 521 (1965) Dalby v. State
We hold that the error was not prejudicial. Taking away the fingerprint testimony, there was
ample other identity evidence to justify the conviction. There were three eye witnesses to the
crime, the bartender and two customers, all of whom testified that the defendant was the
robber.
[Headnote 7]
NRS 169.110 provides that no case shall be reversed unless the error complained of has
resulted in a miscarriage of justice or has actually prejudiced the defendant. State v. Ramage,
51 Nev. 82, 269 P. 489 (1928). Judgment will not be set aside where, upon examination of
the entire case, the verdict is manifestly right, or no other verdict could have been properly
returned. State v. Behiter, 55 Nev. 236, 29 P.2d 1000 (1934). See State v. Skaug, 63 Nev. 59,
161 P.2d 708 (1945); State v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948).
The lower court is directed to give appellant's attorney the certificate specified in
Subsection 3 of NRS 7.260 to enable him to recover compensation as provided in Subsection
4 of said statute.
Affirmed.
____________
81 Nev. 521, 521 (1965) Coffman v. State
HAROLD COFFMAN, Appellant, v.
No. 4796
November 2, 1965 407 P.2d 168
Judge.
The defendant was convicted in the trial court of statutory rape, and he appealed. The
Supreme Court, Thompson, J., held that admission of deposition of doctor who was in
Michigan at time of trial and who had been examined by prosecutor and cross-examined by
defense counsel in presence of defendant during taking of deposition did not constitute
denial of defendant's federal constitutional right of confrontation.
of deposition did not constitute denial of defendant's federal constitutional right of
confrontation.
Judgment affirmed.
W. Albert Stewart, Jr. and Douglas R. Pike, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Carson City; Edward G. Marshall, District Attorney,
and Earl Gripentrog and Leonard I. Gang, Deputy District Attorneys, of Las Vegas, for
Respondent.
Accused's Sixth Amendment right to confrontation of witnesses is obligatory on states by Fourteenth
Amendment. U.S.C.A.Const. Amends. 6, 14.
Admission of deposition of doctor who was in Michigan at time of trial and who had been examined by
prosecutor and cross-examined by defense counsel in presence of defendant during taxing of deposition did
not constitute denial of defendant's federal constitutional right of confrontation. U.S.C.A.Const. Amends. 6,
14; NRS 174.540.
OPINION
The defendant Coffman was convicted of statutory rape, following a jury trial at Las
Vegas, Nevada. During trial the deposition of a doctor was received in evidence over
objection. This is assigned as prejudicial error, the argument being that the defendant was
denied his federal constitutional right of confrontation.
1

On the record of this case the argument has no merit.
[Headnotes 1, 2]
It is now settled that an accused's Sixth Amendment right to confront the witnesses against
him is a fundamental right made obligatory on the several states by the Fourteenth
Amendment. Pointer v. Texas, 380 U.S.
____________________

1
The Sixth Amendment to the United States Constitution provides in part: In all criminal prosecutions the
accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.
400, 13 L.Ed.2d 923, 85 S.Ct. 1065. The major reason underlying the rule of confrontation is
to give a defendant charged with crime an opportunity to cross-examine the witnesses
against him. Id., 13 L.Ed.2d at 928, 85 S.Ct. at 1069. With this in mind, we turn to the
circumstances here presented. The case against Coffman was called for trial. Defense counsel
requested a continuance. The court allowed the trial to be put off, upon condition that the
deposition of Dr. McLaughlin be taken. The procedure is authorized by NRS 174.540.
2
The
deposition was taken, the deponent being examined by the prosecutor and cross examined by
defense counsel. The defendant attended. When trial finally occurred the doctor was in
Michigan. His deposition was used in lieu of courtroom testimony. Thus the defendant was
accorded an opportunity, through counsel, to cross examine the doctor at deposition, and did
so. His constitutional right to confront the doctor was not violated. Indeed, in noting some of
the situations that would not fall within the scope of the rule of confrontation, the court in
Pointer wrote, The case before us would be quite a different one had Phillips' statement been
taken at a full-fledged hearing at which petitioner had been represented by counsel who
had been given a complete and adequate opportunity to cross-examine."
____________________

2
NRS 174.540 provides: 1. When an action is called for trial, or at any time previous thereto, the court may,
upon sufficient cause shown by either party by affidavit, direct the trial to be postponed to another day; but in all
cases where a continuance is granted upon the application of either party the court may require, as a condition of
granting such continuance, that the party applying therefor consent to taking, forthwith, or at any time to be fixed
by the court, of the deposition of any witness summoned by the opposite party whose deposition has not
previously been taken. Such deposition must be taken in the same manner that depositions are required to be
taken in NRS 171.505.
2. The court also has authority to require all witnesses to enter into undertakings in such sum as the court
may order, with or without sureties, to appear and testify on the day to which the case may be continued; but any
witness who is unable to procure sureties for his attendance may be discharged on his own recognizance, upon
giving his deposition in the manner prescribed in NRS 171.505.
3. All depositions taken in pursuance of any of the provisions of this Title may be read in evidence, subject
to the legal objections made at the time of taking the same, on the trial of the cause, whenever it shall appear that
the personal attendance of the witness could not, with due diligence, be obtained, or when he has left the state, or
become of unsound mind, or is too sick or infirm to attend, or is dead.
at a full-fledged hearing at which petitioner had been represented by counsel who had been
given a complete and adequate opportunity to cross-examine. 13 L.Ed.2d at 928, 85 S.Ct. at
1069-1070. That language governs the disposition of this appeal.
Other assigned errors, relating to the use of the deposition at trial, have been considered
and are without merit.
Counsel was appointed by the district court to present this appeal. We direct that court to
give him the certificate specified in NRS 7.260 (3) to enable him to receive compensation as
provided in NRS 7.260(4).
Affirmed.
Badt, J., and Collins, D. J., concur.
____________
81 Nev. 524, 524 (1965) Adams v. State
EVELYN ADAMS and OLGA BOND, Appellants, v.
No. 4838
November 2, 1965 407 P.2d 169
Appeal from the Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Prosecution for felony of attempted abortion. From a judgment of guilty, based upon jury
verdict, and from denial of motion for new trial by the trial court, codefendants appealed. The
Supreme Court, Badt, J., held, inter alia, that there was no entrapment by undercover agents
purportedly seeking abortion and that the defendants' actions at time of arrest had gone
beyond mere preparation and were sufficient to establish the attempt requisite to offense
charged.
Affirmed.
[Rehearing denied December 1, 1965]
Harry A. Busscher, of Reno, for Appellants.
Ahlswede, Chief Criminal Deputy, Washoe County, for Respondent.
81 Nev. 524, 525 (1965) Adams v. State
1. Criminal Law.
Use of undercover agents to institute initial contact with defendants, who claim entrapment, is not alone
what is meant by inducing crime or having it originate in minds of police officers or their agents.
2. Criminal Law.
Initial contact is generally the most crucial point for an analysis of entrapment.
3. Criminal Law.
Where defendant in prosecution for illegal attempted abortion opened discussion of money and disclosed
required presence of confederate and drew necessary inferences from undercover agent's announcement
that her purported sister was in trouble, use of undercover agents to initiate contact with defendants did not
constitute entrapment but was merely the furnishing of opportunity for commission of crime.
4. Abortion.
Where, at time of arrest, one of defendants, in prosecution for illegal attempted abortion, had purchased
and mixed Lysol and petroleum jelly, had instructed undercover agent posing as subject desiring abortion
to remove undergarments and lie, knees raised, upon towels and, armed with combination oilcan syringe,
had placed her hand on subject's knee in an attempt to spread subject's knees, the defendant's actions had
gone beyond mere preparation and were sufficient to establish the attempt requisite to crime charged.
5. Criminal Law.
Affidavits of defendants, in prosecution for attempted abortion, which stated that one codefendant had
made certain statements prejudicial to the other and that evidence proper to one codefendant might
prejudicially affect the other did not show sufficient cause to require separate trials. NRS 175.205.
6. Criminal Law.
Testimony of police officer in prosecution for attempted abortion as to prior arrest of one of defendants
for illegal abortion and tools seized in search incident to that arrest was properly admissible as tending to
establish motive, intent, absence of mistake or accident, and a common scheme or plan.
7. Criminal Law.
Statement in instruction regarding right of defendants not to testify that jury could take failure to testify
into consideration as tending to indicate truth of evidence reasonably within defendants' knowledge was not
commendable but, considered on defendants' appeal from conviction as reference to evidence or testimony
that stands uncontradicted rather than comment on defendant's failure to testify, was not in violation of
federal constitutional rights against self-incrimination, under facts of case and particularly considering that
the instruction was requested by defendants themselves. U.S.C.A.Const. Amends. 5, 14.
8. Abortion.
Amended information charging that defendants used or caused to be used instruments and substances on
body of person with intent to produce miscarriage was sufficient to allege felony of attempted abortion.
NRS 173.090.
81 Nev. 524, 526 (1965) Adams v. State
Information need not strictly pursue words used statute to define public offense, but other words
conveying same meaning may be used. NRS 173.090.
10. Witnesses.
Court in prosecution for attempted abortion did not err in refusing to command disclosure of identity of
informer, where informer was irrelevant to defense against prosecution based upon testimony of
undercover agents who were available and thoroughly cross-examined throughout trial.
11. Abortion.
Pregnancy of the subject is not necessary for crime of abortion.
OPINION
Appellants were jointly tried in the court below upon an amended information charging the
felony of attempted abortion. From a judgment of guilty, based upon jury verdict, and from
denial of their joint motion for a new trial, appellants here appeal, using a shotgun approach
by citing at least ten grounds for protest, none of which, we feel, has sufficient weight under
the instant facts to merit an extensive discussion. Nevertheless, we shall attempt to handle
each separately.
[Headnotes 1-3]
1. Perhaps appellants' most strenuous contention is that they be afforded the defense of
entrapment. Suffice that though undercover agents were used, and though they did institute
the initial contact with appellants, this is not alone what is meant by inducing crime or
having it originate in the minds of police officers or their agents. To the contrary, the record
here reveals that during the initial contact, which generally is the most crucial point for an
analysis of entrapment, undercover agent Francine Paiva only said her sister was in
trouble. It was appellant Olga Bond who drew necessary inferences that the trouble was an
unwanted pregnancy and that the caller sought an abortion. It was appellant Bond who
opened the discussion of money1 and disclosed the required presence of appellant Evelyn
Adams.
81 Nev. 524, 527 (1965) Adams v. State
money
1
and disclosed the required presence of appellant Evelyn Adams. This is not
entrapment. It is merely the furnishing of an opportunity for the commission of the crime.
Wyatt v. State, 77 Nev. 490, 367 P.2d 104. Also see In re Davidson, 64 Nev. 514, 186 P.2d
354; In re Wright, 69 Nev. 259, 248 P.2d 1080.
2
So holding, it is here unnecessary for us to
review the pertinence of appellants' having waited to initiate their protest of entrapment until
this appeal. Wyatt v. State, supra.
[Headnote 4]
2. Appellants next contend their arrests occurred before any attempt had transpired, and
that at most their alleged acts constituted mere preparation. We recognize that the critical
distinction between preparation and attempt is, at times, delicate, but this is not one of
those times. The record discloses that shortly before the alleged abortion was to be
performed, appellant Adams purchased Lysol and petroleum jelly; that she mixed these in a
nearby motel room where she instructed her patient to remove undergarments and lie, knees
raised, upon towels. Then armed with the hideous contraption of a combination oilcan syringe
in one hand, Mrs. Adams placed her other hand on the patient's knee in an attempt to spread
the latter's knees. At this point, arrests occurred. Clearly, appellant Adams' acts had gone well
beyond mere preparation. [C]ourts should not destroy the practical and common sense
administration of the law with subtleties as to what constitutes preparation and what an act
done toward the commission of a crime. * * * [G]eneral principles must be applied in each
case as nearly as can be, with a view to working out substantial justice."
____________________

1
Bond: All right, now are you familiar with the price?
Paiva: No. I'm not.
Bond: Well, uh, it all depends. How long is she?
Paiva: Uh, about six weeks.
Bond: Oh, well that will be at least five.

2
Cf. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, where a prohibition agent, posing as
a tourist, three times specifically asked appellant to procure liquor before appellant finally agreed.
81 Nev. 524, 528 (1965) Adams v. State
be, with a view to working out substantial justice. State v. Roby, 194 Iowa 1032, 188 N.W.
709.
3. In this vein, the trial court properly instructed the jury as to the law in attempt. Further,
appellants offered no alternate instruction. State v. Lewis, 59 Nev. 262, 91 P.2d 820.
[Headnote 5]
4. Appellants complain of the court's refusal to grant a motion for separate trials. NRS
175.205
3
provides that When two or more defendants shall be jointly charged with a
criminal offense, they shall be tried jointly, unless, for good cause shown, the court shall
otherwise direct. Appellants' affidavits asserting such good cause merely stated that one
co-defendant had made certain statements prejudicial to the other and that evidence proper
to one co-defendant might prejudicially affect the other. Neither the statements nor the
evidence was further described. Thus the court ruled correctly in holding there had been no
showing of good cause. State v. Jon, 46 Nev. 418, 211 P. 676.
[Headnote 6]
5. The trial court also was correct in permitting the testimony of Los Angeles police
officer Paul LePage as to a prior arrest of appellant Adams for abortion and the tools seized
in a search incident to that arrest. This was properly admissible as tending to establish motive,
intent, absence of mistake or accident, and a common scheme or plan. Nester v. State, 75
Nev. 41, 334 P.2d 524.
[Headnote 7]
6. Appellants also complain of instruction 18, given at the request of their own counsel.
Appellants now protest the instruction was violative of their Fifth Amendment rights against
self incrimination, as applied to states through the due process clause of the Fourteenth
Amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Instruction
18, in its entirety read: "It is a constitutional right of a defendant in a criminal trial that he
may not be compelled to testify.
____________________

3
Appellants also rely on an old statute superseded by NRS 175.205.
81 Nev. 524, 529 (1965) Adams v. State
It is a constitutional right of a defendant in a criminal trial that he may not be compelled
to testify. Thus, whether or not he does testify rests entirely in his own decision. As to any
evidence or facts against him which the defendant can reasonably be expected to deny or
explain because of facts within his knowledge, if he does not testify or if, though he does
testify, he fails to deny or explain such evidence, the jury may take that failure into
consideration as tending to indicate the truth of such evidence and as indicating that among
the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are
the more probable. In this connection, however, it should be noted that if a defendant does not
have the knowledge that he would need to deny or to explain any certain evidence against
him, it would be unreasonable to draw an inference unfavorable to him because of his failure
to deny or explain such evidence. The failure of a defendant to deny or explain evidence
against him does not create a presumption of guilt or by itself warrant an inference of guilt,
nor does it relieve the prosecution of its burden of proving every essential element of the
crime and the guilt of the defendant beyond a reasonable doubt.
In deciding whether or not to testify, the defendant may choose to rely on the state of the
evidence and upon the failure, if any, of the State to prove every essential element of the
charge against him, and no lack of testimony on defendant's part will supply a failure of proof
by the State so as to support by itself a finding against him on any such essential element.
In Fernandez v. State, 81 Nev. 276, 402 P.2d 38, we took note that not all comments as to
a defendant's failure to testify constituted reversible error under Griffin. The distinction
appears to be that defendant's failure to testify cannot directly or indirectly be the subject of
comment by the prosecution, but a reference to evidence or testimony that stands
uncontradicted is acceptable. Also see Poirier v. Board of Dental Examiners, 81 Nev. 482,
406 P.2d 534. Under the instant facts, particularly considering appellants having themselves
requested the instruction,4 we view instruction 1S as only "referring to evidence or
testimony that stands uncontradicted."
81 Nev. 524, 530 (1965) Adams v. State
instruction,
4
we view instruction 18 as only referring to evidence or testimony that stands
uncontradicted. Note, however, that we do not commend this instruction. It flirts with the
very dangers put forth in Griffin v. California, supra.
[Headnotes 8, 9]
7. We also reject appellants' contention that the amended information did not sufficiently
allege a crime against the laws of the State of Nevada. The amended information charged
appellants used or caused to be used instruments and substances on the body of Beverly
Rubio with the intent to produce a miscarriage. NRS 173.090 provides that [t]he offense
charged in any information shall be stated in plain, concise language without prolixity or
unnecessary repetition. Further, the information need not strictly pursue the words used in a
statute to define a public offense, but other words conveying the same meaning may be used.
Ex parte Boley, 76 Nev. 138, 350 P.2d 638.
[Headnote 10]
8. Equally without merit is appellants' contention that the court erred in refusing to
command disclosure of the identity of an informer. In this case, the informer was completely
irrelevant to appellants' defense. He (or she) merely had originally informed police that an
abortion ring might be in operation at Mrs. Bond's home in Crystal Bay. The police then
began their own observation leading to the undercover plan which resulted in the arrests.
Appellants were not on trial because of the informer. They were on trial because of acts
performed in the presence of undercover agents, who were available and thoroughly
cross-examined throughout the trial. Cf. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623,
1 L.Ed.2d 639, with United States v. Rugendorf, 316 F.2d 589.
9. A foundation clearly was laid for introduction of tape-recorded telephone
conversations. The prosecution complied in all respects with the requirements for such
foundation set forth in commendable length in Solomon, Jr.,
____________________

4
See Shields v. United States, 17 F.2d 66 (3 Cir. 1927); but cf. People v. Keelin, 136 Cal.App.2d 860, 289
P.2d 520.
81 Nev. 524, 531 (1965) Adams v. State
foundation set forth in commendable length in Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207,
88 S.E.2d 167. See also Annot., 58 A.L.R.2d 1029.
[Headnote 11]
10. Finally, we consider the point too well settled to discuss, but pregnancy of the
patient is not necessary for the crime of abortion. NRS 201.120; Wyatt v. State, 77 Nev.
490, 367 P.2d 104.
As none of the assignments of error has merit, the judgment must be affirmed and it is so
ordered.
____________
81 Nev. 531, 531 (1965) Garnick v. District Court
BILLIE J. GARNICK, Petitioner, v. FIRST JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, In and for the County of Churchill and HONORABLE RICHARD L.
WATERS, JR., Judge, First Judicial District Court of the State of Nevada, in and for the
County of Churchill, Respondents.
No. 4992
November 3, 1965 407 P.2d 163
The Supreme Court, Badt, J., held that information which charged that defendant, with
intent to defraud, for herself or as officer of corporation, made or passed a check for payment
of money without sufficient funds in drawee bank to cover check in full upon its presentation
and which in addition specified amount of check, date and locale where it was drawn and
name of drawee bank sufficiently charged issuance of check against insufficient funds, and it
was not necessary that information state whether defendant was charged with acting either in
her individual capacity or as corporate officer or give name of corporation.
individual capacity or as corporate officer or give name of corporation.
Denied.
Harry E. Claiborne, of Las Vegas, and Fry and Fry, of Reno, for Petitioner.
Harvey Dickerson, Attorney General, C. B. Tapscott, Deputy Attorney General, and Grant
Davis, District Attorney of Churchill County, for Respondents.
1. False Pretenses.
Information which charged that defendant, with intent to defraud, for herself or as an officer of corporation,
made or passed check for payment of money without sufficient funds in drawee bank to cover check in full
upon its presentation and which in addition specified amount of check, date and locale where it was drawn
and name of drawee bank sufficiently charged issuance of check against insufficient funds, and it was not
necessary that information state whether defendant was charged with acting either in her individual
capacity or as corporate officer or give name of corporation. NRS 173.110, 205.130.
2. False Pretenses.
The elements of crime of issuing check against insufficient funds are (1) intent to defraud, (2) making or
passing of a check for the payment of money, and (3) without sufficient funds in the drawee institution to
cover said check in full upon its presentation. NRS 205.130.
3. Criminal Law.
The inclination for a rigidly strict construction of the requirements for the contents of an indictment is not
so great when the objection is not made until after conviction and sentencing. NRS 174.230.
4. Habeas Corpus.
When the Supreme Court in habeas corpus case set aside conviction under guilty plea, the case remained
before the district court as if Supreme Court had specifically stated that criminal case was remanded for
further action of district court, and trial should proceed on defendant's not guilty plea to original
information.
An amended information obtained without leave of court as required by statute was ineffectual and trial
should proceed on defendant's not guilty plea to original information. NRS 173.100.
The filing of an amended information did not amount to a confession of error, to wit, that
original information did not state public offense.
confession of error, to wit, that original information did not state public offense.
OPINION
Petitioner seeks a writ of prohibition to bar her trial before respondents on an amended
information charging the issuance of a check against insufficient funds. NRS 205.130set
forth in pertinent part in the margin.
1

Petitioner asserts that said amended information does not charge an offense against the
laws of the State of Nevada. For convenience we here set forth the amended information in
which we have noted by including in brackets the parts thereof that were added to the original
information:
That said defendant on the 4th day of September, A.D., 1963, or thereabout, and before
the filing of this information, at and within the County of Churchill, State of Nevada, did then
and there wilfully and unlawfully, with intent to defraud, for herself or as an officer of a
corporation, make and pass a check for the payment of money, drawn upon a bank, when in
fact she [and the corporation] had insufficient money or credit with the drawee of such
instrument to meet and make payment of the same in full upon its presentation, in the manner
following, to-wit: Making a check [on the account of Midwest Livestock Commission Co.]
for the sum of Thirteen Thousand Twenty-six and 27/100 ($13,026.27) Dollars, drawn upon
the Security National Bank of Nevada, Fallon Branch, Fallon, Nevada, when [in fact neither]
she [nor the Midwest Livestock Commission Co.] had sufficient money or credit with said
bank to make payment of the same."
____________________

1
1. Every person who for himself, or as the agent or representative of another, or as an officer of a
corporation, willfully, with intent to defraud, shall make, pass, utter or publish any * * * check * * * for the
payment of money * * * when in fact such person shall have * * * insufficient money, property or credit with the
drawee of such instrument to meet and make payment of the same in full upon its presentation, shall be guilty of
a misdemeanor * * *.
Co.] had sufficient money or credit with said bank to make payment of the same.
To the original information she pleaded not guilty. In Garnick v. Miller, No. 4869, filed
July 7, 1965, 81 Nev. 372, 403 P.2d 850, we recited the circumstances under which Mrs.
Garnick changed her plea of not guilty to a plea of guilty, although she professed her
innocence. We there said: Her attorney learned of what had transpired and promptly moved
to set aside her guilty plea and reinstate the plea of not guilty. This motion was heard by a
different judge, and denied. It was his view that Mrs. Garnick had intelligently waived her
right to be represented by counsel when she appeared in court to change her plea from not
guilty to guilty. Sentence was imposed, execution thereof suspended, and the defendant
Garnick was granted probation. This application for habeas relief followed.
Supporting our opinion by reference to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792,
9 L.Ed.2d 799, 93 A.L.R.2d 733, and numerous other citations, both of the federal courts and
of this court, we granted the writ of habeas corpus and set aside the judgment of conviction
upon the plea of guilty that had been entered.
Her petition for a writ of habeas corpus, granted as above stated, had also protested the
sufficiency of the original information, but this court made no decision on that issue.
Petitioner here renews attack on the sufficiency of the original information and contends
that the amended information must also be declared void because [A]s a matter of law, an
amended information based on a void information is a legal nullity; and she asserts that
neither the original information nor the amended information states any offense under the
laws of this state.
[Headnote 1]
1. The thrust of her attack upon the original information is that it was fatally ambiguous as
to NRS 205.130 (set forth in the margin) in that the information failed to specify whether she
drew the check for herself or as an officer of a corporation, nor does it specify whose account
had insufficient fundshers, or, if she was drawing on a corporate account, the
corporation's.
if she was drawing on a corporate account, the corporation's. Petitioner seems particularly
disturbed that the original information did not name the corporation involved. We rule that
under the facts of this case there is no merit in the attacks thus made.
In Ex parte Boley, 76 Nev. 138, 350 P.2d 638, this court said:
Under statutes applicable to informations, the offense charged may be stated in plain,
concise language and in such manner as to enable a person of common understanding to
know what is intended (NRS 173.090, 173.210, and 173.310, subd. 6); and no information
shall be deemed insufficient by reason of any defect in matters of form which shall not tend to
the prejudice of the defendant (NRS 173.100, subd. 1). By statute it is also provided that the
information need not strictly pursue the words used in a statute to define a public offense, but
other words conveying the same meaning may be used. (NRS 173.300) Any defect or
imperfection in the information as to form shall not affect the judgment thereon, unless it
tends to prejudice a substantial right of the defendant. (NRS 173.320)
* * * * *
Here we do not find any showing of prejudice of a substantial right of either petitioner
occasioned by reason of the form of the information, and under the authorities cited a further
consideration of the asserted insufficiency of the information is not justified.
NRS 173.110 provides the law applicable to indictments applies to informations.
2
See
State v. Switzer, 38 Nev. 108, 145 P. 925 (1914), as to the sufficiency of an indictment for
the crime of robbery. In that case this court, working from statutes basically similar to the
present, quoted State v. McKiernan, 17 Nev. 224, 30 P. 831 (1882):
The technical exactness which existed under the rules of the common law has been
superseded by statutory provisions, and it is now sufficient if the offense is 'clearly and
distinctly set forth in ordinary and concise language * * * in such a manner as to enable a
person of common understanding to know what is intended.'"
____________________

2
However, the statute adds the qualifying words, as near as may be.
clearly and distinctly set forth in ordinary and concise language * * * in such a manner as to
enable a person of common understanding to know what is intended.'
Switzer and McKiernan were both quoted with approval by this court in Ex parte Esden,
55 Nev. 169, 28 P.2d 132 (1934). To like effect is Evershaw v. Moran, 57 Nev. 417, 65 P.2d
877, in which case this court said: It is the evident purpose of this statute [NCL (1929)
Section 10854, now NRS 173.280] to obviate mistrials where the defendant is in no way
misled by such a mistake as appears in this case. That the defendant was not misled appears
from his own testimony and from the fact that he makes no contention that he was. He is here
relying upon a bare technicality, which the statute above quoted sought to and does
overcome. Cf. Smith v. District Court, 75 Nev. 526, 347 P.2d 526; Houser v. District Court,
75 Nev. 465, 345 P.2d 766; In re Waterman, 29 Nev. 288, 89 P. 291, in which cases the
allegations of the information were held insufficient to constitute an offense. We have no
quarrel with any of those cases or the other cases cited by petitioner. We do not find them in
point.
[Headnote 2]
NRS 173.240 requires only that the particular facts of an offense charged be stated so far
as necessary to constitute a complete offense, but the evidence tending to prove the charge
need not be stated. The elements of the crime of issuing a check against insufficient funds
are (1) intent to defraud, (2) the making or passing of a check for the payment of money, and
(3) without sufficient funds in the drawee institution to cover said check in full upon its
presentation. The original information specifically charged each of these elements, and in
addition specified the amount of said check, $13,026.27, the date and locale where it was
drawn, and the name of the drawee bank. The cases cited supra indicated, a fortiori, that this
was sufficient information to apprise defendant of what she was charged with and to enable
her properly to prepare her defense and to equip her with a complete answer to any similar
subsequent charge with a plea of former jeopardy.
Nor do we find any merit in petitioner's argument that the information as drawn did not
advise petitioner whether she was charged with acting either in her individual capacity or as a
corporate officer, and that if she was charged with acting as a corporate officer, the
information fatally neglected to name the corporation. The crime does not turn on these
details. Clearly, under the allegations of the information giving the date of the check, the
unusual amount thereof, the intent to defraud, the insufficient funds in the payee bank whose
name and location were clearly stated, any further information would have been superfluous.
As we have held the original information sufficient, the point that an amended
information based on a void information is a legal nullity falls.
[Headnote 3]
2. To the foregoing we must note the petitioner's failure to object to the information until
after her conviction and sentencing. In State v. Hurley, 66 Nev. 350, 210 P.2d 922, this court
said:
We revert to the fact, as disclosed by the record, that the sufficiency of the indictment
was not attacked until defendant moved in arrest of judgment after the jury had returned its
verdict. * * * the inclination for a rigidly strict construction of the requirements for the
contents of the indictment is not so great when thus first raised. [Citing State v. Raymond, 34
Nev. 198, 117 P. 17, and State v. Hughes, 31 Nev. 270, 102 P. 562.]
See also State v. Lovelace, 29 Nev. 43, 83 P. 330. This is only common sense and in
accordance with our statutes, as NRS 174.230 permits a demurrer to an information on any of
five separate grounds. Where a defendant waits until judgment before attacking the
sufficiency of the information, it is obvious that a different situation is presented.
3. Petitioner next asserts that although an entirely new information would have been in
order, an amended information was not permissible without an order of court under the
provisions of subdivision 2 of NRS 173.100, providing as follows: 2. An information may
be amended by the district attorney, without leave of court, at any time before the
defendant pleads.
court, at any time before the defendant pleads. Such amendment may be made at any time
thereafter, in the discretion of the court, where it can be done without prejudice to the
substantial rights of the defendant. Such order of court was not obtained, but the court
permitted the filing of the amended information. No where does it appear that the filing of the
amended information in any way prejudices the substantial rights of the petitioner.
Petitioner's reliance on cases discussing the need to resubmit indictments to a grand jury are
not in point. Such requirement for resubmission procedure grew out of the common-law
requirement that an indictment being the finding of a grand jury upon oath and depending
upon this fact, among others, for its validity [could] not be amended by the court or the
prosecuting officer in any matter of substance without the concurrence of the grand jury
which presented it. The use of an information as an accusation in a felony case did not exist at
common law. Mitchell v. Superior Court, 76 Cal.App. 734, 245 P. 1109. See Ex parte
Williams, 43 Nev. 342, 186 P. 673.
[Headnote 4]
4. Petitioner urges that by the decision of this court in Garnick v. Miller, supra, setting
aside the conviction under the guilty plea but not remanding the case for further action was a
complete disposition of the case; that it could not be revived through the machinery of an
amended information but only by a new proceeding under an entirely new information or by
an indictment of the grand jury. We see no merit in this contention. The judgment having
been set aside, the case still remained before the district court to as great a degree as if we had
specifically stated that it was remanded for the further action of that court. This is clear from
the fact that we held it error for the court to refuse to allow Mrs. Garnick to change her plea
of guilty to not guilty. This of course would necessitate a trial on such plea.
The procedure is not new and has been applied in many cases. Perhaps the leading case is
Townsend v. Burke, 361 Pa. 35, 63 A.2d 77 (1949). There, Townsend pleaded guilty to
armed robbery and burglary and was convicted without benefit of counsel.
convicted without benefit of counsel. A writ of habeas corpus was granted on grounds that
the conduct of the trial judge * * * constituted error of such a fundamentally harmful nature
(considering the uncounseled position of the defendant) as to stigmatize the proceeding as
lacking constitutional due process throughout and render it vitiated ab initio.
* * * * *
However, the indictments have not at any time been under attack and remain unaffected
by the invalidity in the former proceeding. Consequently, upon the vacation of the sentence
and the setting aside of the defendant's pleas of guilty to the indictments, due procedure upon
those indictments may thereafter be moved by the district attorney and the defendant put to
trial or permitted to plead, as he may then elect. No question of a new trial is in any way
involved; nor are we to be taken as assuming to grant one. The matter is not here on appeal;
the time for that has long since expired. It is here on habeas corpus because of the
unconstitutional composition of the trial forum in the circumstances shown; and habeas
corpus is not a substitute for an appeal. Commonwealth ex rel. Sullivan v. Ashe, 325 Pa. 305,
310, 188 A. 841, affirmed on certiorari, 302 U.S. 51, 58 S.Ct. 59, 82 L.Ed. 43. A writ of
habeas corpus does not lie for the mere questioning of alleged errors during, or prior to, the
trial. Commonwealth v. Curry, 285 Pa. 289, 292, 132 A. 370. Among the unusual
circumstances giving grounds for the writ are an original lack or (as here) a coincident loss of
the sentencing court's jurisdiction. See Halderman's Petition, 276 Pa. 1, 2, 119 A. 735. The
situation, here consequently ensuing, results from the necessary vacation and setting aside of
the former proceeding as a nullity and leaves the indictments open and unsatisfied. In legal
contemplation there never was a trial.
Townsend then was retried under the original indictment. However, he protested the
validity of that indictment, contending it had been destroyed by his discharge upon habeas
corpus. The Pennsylvania court overruled the objection and, upon his subsequent
conviction Townsend appealed.
the objection and, upon his subsequent conviction Townsend appealed. The court said in
Commonwealth v. Townsend, 167 Pa.Super. 71, 74 A.2d 746 (1950):
* * * Appellant's plea of guilty, his conviction and sentence in violation of the Due
Process Clause of the Fourteenth Amendment rendered that criminal proceeding void ab
initio. But the indictment or indictments remained outstanding and unaffected by the habeas
corpus proceeding. Appellant could be, and was, lawfully required to respond to the open and
unsatisfied indictment * * *.
[Headnote 5]
The same situation occurred in the Pennsylvania court in Commonwealth v. Gibbs, 167
Pa.Super. 79, 74 A.2d 750 (1950), in which the Townsend cases were quoted with approval.
To like effect is In re Johnson, 42 Cal. Rptr. 228, 398 P.2d 420 (1965), and Bayless v. United
States, 147 F.2d 169 (8 Cir. 1945), citing with approval In re Bonner, 151 U.S. 242, 261, 14
S.Ct. 323, 38 L.Ed. 149. The upshot of these cases is that on granting the writ of habeas
corpus to Mrs. Garnick this court simply vacated the plea of guilty and the sentence
thereunder, but the original information to which she pleaded not guilty, being valid,
remained. Her not guilty plea to the original information stands. As the record does not reflect
that the prosecutor obtained leave of court to file an amended information, NRS 173.100,
such amended information is ineffectual and we regard it as surplusage. The trial shall
proceed on the defendant's not guilty plea to the original information.
[Headnote 6]
5. Petitioner claims that when the district attorney filed an amended information, this
amounted to a confession of error, to wit, that the original information did not state a public
offense. We do not see the filing of the amended information in that light.
The petition is denied and the proceedings dismissed.
the Eighth Judicial District Court to sit in his place.
____________
81 Nev. 541, 541 (1965) Dean v. Fogliani
ROBERT FRANCIS DEAN, Petitioner, v. JACK FOGLIANI,
Warden, Nevada State Prison, Respondent.
No. 4855
November 9, 1965 407 P.2d 580
Original petition for habeas corpus.
The Supreme Court, Zenoff D. J., held that petitioner who was asleep on floor of premises
at time of arrest, and was absent therefrom during later search only because he was removed
by arresting officers, had standing to object to admission of evidence illegally seized, but
admission in evidence of illegally seized jacket and gun did not create a reasonable possibility
that such evidence might have contributed to robbery conviction where bartender identified
petitioner as one of the robbers, and petitioner stated to arresting officer that he would not
make a statement due to fact that he did not know why he had committed the crime because
he knew he would get caught.
Petition denied.
Milton Manoukian, of Zephyr Cove, Nevada, for Petitioner.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Herbert F.
Ahlswede, Deputy District Attorney, and Gene Barbagelata, Deputy District Attorney,
Washoe County, for Respondent.
In order that a person have standing to invoke constitutional protection against unlawful searches and
seizures, he must be one of the persons against whom the search was directed, or must be one who
is charged with illegal possession of the property to be suppressed, or must be one
who was legitimately on premises where search occurred, the fruits of which were
proposed to be used against him.
directed, or must be one who is charged with illegal possession of the property to be suppressed, or must be
one who was legitimately on premises where search occurred, the fruits of which were proposed to be used
against him. U.S.C.A.Const. Amend. 4; Const. art. 1. 18.
It is unnecessary and ill advised to import into the law surrounding constitutional right to be free from
unreasonable searches and siezures subtle distinctions, and hence distinctions such as those between
lessee, licensee, invitee, and guest, often only of gossamer strength, ought not to be determinative
in fashioning procedures ultimately referable to constitutional safeguards. U.S.C.A.Const. Amend. 4.
Defendant need only establish that he was legitimately on premises when he placed fruits of search there
and where search later occurred, in order to give him standing to invoke constitutional protection against
unlawful searches and seizures; his personal presence at time of search is not a necessary ingredient.
U.S.C.A.Const. Amend 4; Const. art. 1, 18.
An accused who was not legitimately on premises when he placed items of evidence there and where
search later occurred has no standing to complain of unlawful search and seizure. U.S.C.A.Const. Amend.
4; Const. art. 1, 18.
Petitioner who was asleep on floor of premises at time of arrest, and was absent therefrom during later
search only because he was removed by arresting officers, had standing to object to admission of evidence
illegally seized. U.S.C.A.Const. Amend. 4; Const. art. 1, 18.
6. Criminal Law.
Illegally obtained evidence may be only a relatively insignificant part of total evidence and have not
effect on outcome of trial.
7. Criminal Law.
Admission in evidence of illegally seized jacket and gun did not create a reasonable possibility that such
evidence might have contributed to robbery conviction where bartender identified petitioner as one of the
robbers, and petitioner stated to arresting officer that he would not make a statement due to fact that he did
not know why he had committed the crime because he knew he would get caught.
OPINION
This case presents the problem of who has the right to object to the admission of evidence
when there has been an unlawful search and seizure.
On April 13, 1963, a robbery was committed at Brickie's Tavern, in Reno, Nevada. In the
early morning hours of April 14, 1963, both petitioner and Roy Peter Hansen were arrested at
Hansen's home in Reno. Police officers acted upon a tip from one Jerry Scott, who gave them
a key to the rear door of the Hansen house. Scott is identified only as an occupant of the
Hansen house. The officers entered the house via the back door, without knocking, using the
key.
The police found the petitioner lying on the floor asleep. Hansen and his wife were asleep
in another room. The officers arrested petitioner and Hansen and took both to the city jail for
booking. The house was searched at this time but nothing was found. A short time later the
officers returned with a defective search warrant and searched the house and garage. This
time they seized a gun and jacket which were admitted at the trial as Exhibits A and B. It is
the seizure and admission of these two pieces of evidence which petitioner questions.
Petitioner and Hansen were initially co-defendants, but a motion for severance was
secured by the petitioner. Hansen was then tried separately. At Hansen's trial, the seized
evidence was excluded on the ground that it was illegally obtained and contrary to the
requirements of the Fourth Amendment of the United States Constitution and Article 1,
Section 18, of the Nevada Constitution.
1

Later at his trial, petitioner moved to exclude the jacket and gun from evidence contending
that the search and seizure, having been unlawful as to Hansen, were likewise inadmissible
as to himself because he was a lawful occupant of Hansen's home at the time of the
search and seizure despite the fact petitioner was not physically present when the search
actually took place.
____________________

1
United States Constitution, Amendment 4. The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue,
but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.
Nevada State Constitution, Article 1, Section 18. Unreasonable seizure and search; issuance of warrants. The
right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and
searches shall not be violated; and no warrant shall issue but on probable cause, supported by Oath or
Affirmation, particularly describing the place or places to be searched, and the person or persons, and thing or
things to be seized.
and seizure, having been unlawful as to Hansen, were likewise inadmissible as to himself
because he was a lawful occupant of Hansen's home at the time of the search and seizure
despite the fact petitioner was not physically present when the search actually took place. At
Dean's trial, the prosecutor and defense counsel stipulated that the search warrant was
defective and thus the search and seizure illegal.
The trial court denied petitioner's motion to suppress and the evidence was admitted.
Petitioner was found guilty, a new trial denied, and he was sentenced to not less than five
years and not more than fifteen years in the Nevada State Prison.
In his petition Dean asks this court to release him from the Nevada State Prison and to
expunge his conviction for robbery.
1. The proposition that one must have standing to invoke the Fourth Amendment
proscription against an unreasonable search and seizure still persists in the opinions of our
nation's Highest Court. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697
(1960); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Realizing the dual purposes of the Constitutional mandateto protect one's personal right of
privacy and to curtail unlawful activity by law enforcement officialsthat court has eroded
the standing requirement considerably.
[Headnote 1]
The question of who has standing to invoke the constitutional protection of the Fourth
Amendment of the United States Constitution and Article 1, Section 18, of the Nevada
Constitution, was to a considerable extent resolved in Jones v. United States, supra. That case
provides that in order for a person to have the right to claim an unlawful invasion of privacy,
he
(1) must be one of the persons against whom the search was directed; or
(2) must be one who is charged with illegal possession of the property to be suppressed; or
(3) must be anyone who was legitimately on the premises where a search occurs and the
fruits of the search are proposed to be used against him.
premises where a search occurs and the fruits of the search are proposed to be used against
him.
[Headnote 2]
We are persuaded * * * that it is unnecessary and ill-advised to import into the law
surrounding the constitutional right to be free from unreasonable searches and seizures subtle
distinctions, developed and refined by the common law in evolving the body of private
property law which, more than almost any other branch of law, has been shaped by
distinctions whose validity is largely historical. Even in the area from which they derive, due
consideration has led to the discarding of these distinctions in the homeland of the common
law. Distinctions such as those between lessee, licensee, invitee, and guest, often
only of gossamer strength, ought not to be determinative in fashioning procedures ultimately
referable to constitutional safeguards. Jones, supra, at 266.
No just interest of the Government in the effective and rigorous enforcement of the
criminal law will be hampered by recognizing that anyone legitimately on premises where a
search occurs may challenge its legality by a motion to suppress when its fruits are proposed
to be used against him. Id., at 267.
Hair v. United States, 110 U.S.App.D.C. 153, 289 F.2d 894 (1961), recognizes another
ground for exclusion, holding that a co-defendant (as here), against whom illegally seized
evidence is sought to be used, may raise the objection regardless of his status as guest or
occupant of the invaded premises. The court cites McDonald v. United States, 335 U.S. 451,
69 S.Ct. 191, 93 L.Ed. 153 (1948), in support of that proposition and it might well be that the
first test enunciated in Jones applies to that state of facts as well.
[Headnotes 3-5]
However, it is unnecessary for us to look to other than Jones. We view Jones as giving an
absent guest of a household the same dignity as the absent homeowner who has been a victim
of an illegal search and seizure. Henzel v. United States, 296 F.2d 650, 653 (5th Cir.
1961). His possessory interest derives where the search is made, not when. United States v.
Jeffers, 342 U.S. 48 72 S.Ct. 93, 96 L.Ed. 59 (1951), (decided prior to the Jones case). The
accused now need only establish that he was legitimately on the premises when he placed the
fruits of the search there and where the search later occurred. His personal presence at the
time of the search is not a necessary ingredient. Such a person has a right of privacy to be
protected, and, of course, the purpose of discouraging unlawful police activity is also
advanced. However, the accused who was not legitimately on the premises when he placed
the items of evidence there and where the search later occurred has no standing to complain.
Petitioner, occupying the premises at the time of the arrest (he was asleep on the floor), was
absent therefrom only because he was removed by the arresting officers. In Burge v. United
States, 342 F.2d 408 (9th Cir. 1965), under similar circumstances standing was conceded
although the court held the search itself reasonable.
To hold otherwise would create a situation where law officers, in order to circumvent the
requirement of occupancy when the search takes place, might be tempted to remove
persons from premises, with or without cause, for the real purpose of conducting a search.
This would negate the substance of the Jones ruling.
2

2. Having concluded that petitioner had standing to object to the use of illegally obtained
evidence against him, we are concerned whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction or whether its admission
merely amounted to harmless error.
____________________

2
California has taken a unique view of the problem of standing. The California Supreme Court in People v.
Cahan, 44 Cal.2d 434, 282 P.2d 905 (1955), adopted the exclusionary rule as the only effective means of
securing constitutional guarantees against illegal searches and seizures. The primary objective was to prevent the
court lending its aid to the success of a lawless venture. In People v. Martin, 45 Cal.2d 755, 290 P.2d 855
(1955), the court, in dicta, stated that the exclusionary rule was applicable whenever evidence is obtained in
violation of constitutional guarantees * * * whether or not it was obtained in violation of the particular
defendant's constitutional rights. Id., at 857.
merely amounted to harmless error. Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229,
231, 11 L.Ed.2d 271 (1963); Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965).
[Headnote 6]
Illegally obtained evidence may be only a relatively insignificant part of the total evidence
and have no effect on the outcome of the trial. People v. Parham, 33 Cal.Rptr. 497, 384 P.2d
1001 (1963).
The bartender who was the victim of the holdup here was approached by defendant and
Hansen during the evening hours and while business was quite active. The bartender testified
that defendant addressed him by his first name. Defendant asked the bartender to join him at
the end of the bar for a conversation. Upon doing so, the bartender stated that defendant
pointed a pistol at him that looked like the one in evidence, told the bartender that this was
a holdup, that he should accompany defendant to the rear room in which a safe was located,
that they did so, that they had conversation in the room, confronted each other, and returned
to the bar but no fruits of the holdup were there obtained. Hansen, in the meantime, was
casually tending bar so that the customers would not think anything amiss. During this
somewhat lengthy course of conduct, at no time did the defendant hide his face in any manner
from the bartender. The jacket was a short type and did not obstruct the facial features of the
defendant. As the saying goes, the bartender made positive eyeball to eyeball identification
of the defendant as the person who held him up. The jacket in no way contributed to the
identification of the defendant and the gun likewise could have been any gun, not necessarily
the one which was introduced into evidence. The gun did not contribute to the identification
of the defendant and the fact that the holdup occurred is uncontroverted in the record.
[Headnote 7]
Certainly, the admission of the jacket and gun into evidence did not create a reasonable
possibility that the said evidence might have contributed to defendant's conviction.
said evidence might have contributed to defendant's conviction.
Further, after defendant had been arrested and as he was standing in the hallway near the
booking office of the jail, one of the arresting police officers testified that defendant stated,
he would not make a statement due to the fact he didn't know why he had done it because he
knew he would get caught.
Clearly, then, this is an admission also uncontroverted in the record, easily classified as a
spontaneous admission. Greenwell v. United States, 336 F.2d 962 (1964), at page 966.
In light of the admission and the rule of harmless error, which in this instance is
applicable, the petition is denied. Counsel for the indigent petitioner, having been appointed
by this court, is awarded the sum of $300 as attorney's fees to be paid from the reserve
statutory contingency fund. Stats. Nev. 1964 (Special Session), ch. 7.
____________
81 Nev. 548, 548 (1965) Barger v. State
JOHN WESLEY BARGER, Appellant, v.
No. 4896
November 9, 1965 407 P.2d 584
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F. Sexton,
Judge.
Defendant was convicted in the trial court of first-degree burglary and the defendant
appealed. The Supreme Court, Thompson, J., held that the refusal of the trial court to instruct
the jury about defendant's defense of entrapment was prejudicial error.
Robert Santa Cruz and A. M. Dreyer, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City; Edward G. Marshall, District
Attorney, Clark County, and Paul Parraguirre, Deputy District Attorney, of Las Vegas, for
Respondent.
1. Criminal Law.
Defendant was entitled to instruction on entrapment even where only evidence to support entrapment was
his own testimony.
2. Criminal Law.
Accused is entitled to have jury instructed on his theory of case as disclosed by evidence, no matter how
weak or incredible that evidence may appear to be.
On appeal both court-appointed counsel at trial and associate co-counsel on appeal were entitled to
certificate for enlarged compensation even where counsel did not obtain court order of appointment. NRS
7.260, subds. 3, 4, 174.120.
OPINION
[Headnote 1]
Barger was convicted of first degree burglary following a jury trial in the district court at
Las Vegas, Nevada. On this appeal his main claim of error is that the lower court refused to
instruct the jury about his only defenseentrapmenteven though he had testified,
explaining in detail how a police officer induced him to encourage and assist another in
burglarizing Al's Cycle Shop. Some of his testimony is quoted in the footnote.
1
The jury had
the right to believe it or reject it.
____________________

1
[Direct examination by Mr. Santa Cruz, for defense:]
* * * A. Well, after I had been stopped and searched they would release me and let me go then, after writing
me a citation, but at my home address, the officers would approach me and try to get me to make a deal on
someone, or set some of my friends up.
Q. You say the officers approached you, now who approached you, if anyone?
A. Julie Goldberg.
Q. And when did this take place, if you can recall?
A. Well, during the whole time that I lived at this address, this has taken place numerous dates and times
prior to the night
If believed, a verdict of not guilty might have been returned, for his story could establish the
defense of entrapment. Yet such possible result was effectively precluded by the court's
refusal to instruct on that doctrine. We may not presume that the jurors were aware of that
defense when they were not told about it. The prejudice flowing from this mistake is
manifest.
[Headnote 2]
Citation of authority is no longer necessary for the proposition that a defendant in a
criminal case is entitled to have the court instruct the jury about his theory of defense, if
there is evidence to support it.
____________________
of this arrest, on the 16th of March, I agreed with Mr. Goldberg to set one of my friends up.
Q. Who did you agree to set up, Mr. Barger?
A. Granby Andrew Hanley.
Q. When you mean set him up, what do you mean by that?
A. Frame him into a burglary.
Q. Who suggested this, if anyone?
A. Mr. Goldberg.
Q. What did you say, if anything?
A. Well, at first I didn't agree to it, but he said that was the only way I was going to get rid of the harassment
and the rousting that was going on all the time, and the continuous arrests and slammed in jail.
Q. Did you finally agree to set Hanley up?
A. Yes, I did, on the 16th of March.
* * * * *
Q. What did you say to Julie Goldberg when you agreed to set up, Andrew Hanley up?
A. I asked him, I asked him if, what would happen to me, and he said the charges would be taken care of later
after Hanley was convicted, but they have had such a strenuous time convicting Hanley that they have failed to
do anything about my charges. He had a deal made with Mendoza on it, but Marshall wouldn't keep the deal that
Mendoza made.
Q. You say he had a deal made, who is this?
A. Mr. Goldberg.
* * * * *
Q. What was the deal you made with Goldberg concerning getting Hanley into the shop?
A. The deal was to get Mr. Hanley into the shop to look for his title and while he was looking for the title, I
was to take and load boxes with motorcycle parts, and I would put all kinds of parts into the boxes.
* * * * *
A. After that [the police's arrival] I kept pleading with him [another officer] and wondering where Julie was,
because he told me he would be at the Sunrise Hospital, and as soon as the call came over the radio he would
speed to the motorcycle shop and get me out of there so I wouldn't get hurt, and he never appeared and
entitled to have the court instruct the jury about his theory of defense, if there is evidence to
support it. The state acknowledges the rule, but suggests that Barger's testimony was a fantasy
not worthy of belief and cannot qualify as some evidence, substantial evidence or,
indeed, even as any evidence; and reminds us that three credible prosecution witnesses
testified, in substance, that Barger's story was false. Authority is not offered in support of that
suggestion. There is noneat least we have been unable to find anyand if, perchance, we
did discover such a case, we would not adhere to its doctrine.
_____________________
I was, so then I started screaming Julie, Julie, and it was a few seconds and Julie appeared at the rear door of the
shop.
* * * * *
A. After the shooting, they handcuffed Mr. Hanley and took him out to the car and then Goldberg handcuffed
me and took me out and he says, now keep your mouth shut John and nothing will happen to you.
* * * * *
[Cross examination]
Q. You admitted [that you had broken in] to Officer Goldberg?
A. I didn't have to admit it to Officer Goldberg. He set the deal up.
* * * * *
Q. Your intent was to take those motorcycle parts out of there, wasn't it?
A. No, my intent was not to take them out. * * * My intent was to put them in the box like I was told, so it
would look like a big burglary.
* * * * *
A. I was not supposed to break into the shop, I was supposed to let Mr. Hanley do this.
* * * * *
Q. No one gave you permission to enter that building, did they?
A. No one, except Officer Goldberg.
* * * * *
Q. This was supposed to be a set-up, as you called it. When Officer Julie Goldberg said, is anybody in here
besides you, do you remember that question? * * *
A. No, I didn't give an answer. He knew there was somebody else in the building, I did not have to give an
answer.
* * * * *
Q. Now the intention was, had you not been caught, you were going to get that stuff all out, is that right,
move it out to the back and then load it on the pickup, is that right?
A. No, that is not correct, because I knew we were going to be caught.
adhere to its doctrine. We hold that a defendant in a criminal case is entitled to have the jury
instructed on his theory of the case as disclosed by the evidence, no matter how weak or
incredible that evidence may appear to be. People v. Carmen, 228 P.2d 281 (Cal. 1951). The
jury by its verdict will decide whether the truth rests with the state or the defense.
Though the state intimates otherwise, our holding today is not contra to Wyatt v. State, 77
Nev. 490, 367 P.2d 104. In that case the defendant did not testify, nor was evidence offered
on his behalf. Upon analysis, the state's evidence did not show entrapment. Therefore, the
trial court refused to instruct on that doctrine, and we affirmed on appeal. Here Barger did
take the stand. His tale, if believed, could establish the defense of entrapment. The difference
between the two cases is glaringly apparent.
Other assignments of error are made. However, we will not discuss them as we do not
anticipate recurrence of the questioned matters when this case is tried again.
[Headnote 3]
During trial Barger was represented by court appointed counsel. NRS 174.120. That
counsel chose to appeal, and is entitled to recover the enlarged compensation provided for by
NRS 7.260 (4). He associated co-counsel on appeal, without obtaining a court order of
appointment. We direct the lower court to give each counsel for Barger the certificate
specified in NRS 7.260 (3). Carter v. State, 79 Nev. 89, 378 P.2d 876.
Reversed and remanded for new trial.
____________
81 Nev. 553, 553 (1965) Lightenburger v. Gordon
GERALDINE L. LIGHTENBURGER, Individually, GREGORY DALE
LIGHTENBURGER, a Minor, DENISE SUE LIGHTENBURGER, a Minor, MADYLON
LESLIE LIGHTENBURGER, a Minor, by and Through Their Guardian, ad Litem,
GERALDINE L. LIGHTENBURGER, Appellants, v. JOAN K. GORDON and BANK OF
NEVADA, Co-Executors of the Estate of JAMES L. GORDON, a.k.a. J. L. GORDON,
Respondents.
No. 4850
November 10, 1965 407 P.2d 728
Appeal from Judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Action for wrongful death of passenger killed in light plane crash. The trial court found for
defendants, and appeal was taken. The Supreme Court, Wines, D. J., held that instruction that
could have led jury to believe that compliance with Federal Aviation Agency regulations was
synonymous with due care was erroneous, where issue was not care exercised in performing
landing maneuver but whether pilot exercised due care in weighing risks of landing under low
visibility conditions, and that instruction which omitted from definition of willful misconduct
a statement on wanton and reckless disregard of possible consequences was erroneous.
Judgment reversed and remanded.
Morton Galane, of Las Vegas, and Robert F. List, of Carson City, for Appellants.
Singleton and DeLanoy and Rex A. Jemison; and Robert L. Gifford, all of Las Vegas, for
Respondents.
1. Aviation.
Exclusion of testimony by Civil Aeronautics Board investigators who investigated crash of light plane,
that there had not been, prior to the crash, a failure of a critical component of the aircraft, was erroneous in
wrongful death action.
2. Evidence.
Function of jurymen to decide the issue is not usurped by admission of expert testimony; any aid in
arriving at intelligent decision should be admitted.
3. Aviation.
Under California law, if a person provides transportation to another with the anticipation that a benefit to
him will follow, the person transported has the status of a passenger and is not a guest. Cal.Public
Util.Code 21406.
4. Aviation.
Fact that instruction stating factors to be established before occupant of an airplane could legally be
considered to be a passenger rather than a guest emphasized actual receipt of benefits, rather than
expectation of a future benefit, was not erroneous where in showing was made of existence of an
expectation of future benefit by the provider of the transportation. Cal.Public Util.Code 21406.
5. Aviation.
Under law of California, where air crash occurred, compliance within administrative safety regulation,
though evidence for jury to weigh in determining issue of care, does not absolve defendant from
negligence.
6. Aviation.
Instruction in aircraft accident case that could have led jury to believe that compliance with Federal
Aviation Agency regulations was synonymous with due care was erroneous, where issue was not care
exercised in performing landing maneuver but whether pilot exercised due care in weighing risks of landing
under low visibility conditions.
7. Trial.
There is likelihood of confusion when correct instruction is in general terms and an erroneous instruction
is in specific terms.
8. Trial.
Instruction in airplane crash case which omitted from definition of willful misconduct a statement on
wanton and reckless disregard of possible consequences was erroneous where such conduct could be found
by jury in pilot's action in descending with knowledge that there was a steadily deteriorating visibility at
airport, that controller would terminate at a point one-half mile from touch down thereby cutting off
communications and guidance, and that if he persisted in the approach he would be required to attempt a
visual contact and expose himself to disorientation.
9. Trial.
Instructions in airplane accident case that unduly emphasized evidence that passengers in aircraft
sometimes when placed in fearful situations panic and seek relief in seizing the controls was erroneous
absent any evidence that such had taken place.
10. Trial.
Instruction in airplane accident case that assumed that decision of pilot as to operation of his aircraft was
governed by Federal Aviation Agency regulations and which asked that a higher standard of care
than compliance with such regulations be imposed was properly refused where issue
of fact in wrongful death action was the usage and practices of competent airmen.
higher standard of care than compliance with such regulations be imposed was properly refused where
issue of fact in wrongful death action was the usage and practices of competent airmen.
11. Trial.
Permitting jury to have instructions in airplane accident case during deliberations was not improper.
NRCP 51.
OPINION
By the Court, Wines, D. J.:
This is a wrongful death action brought by a widow for herself and on behalf of three
minor children. The decedent, Dale D. Lightenburger, was killed when the Cessna 310 in
which he was riding, crashed and burned at the Los Angeles International Airport on
December 6, 1962.
The Complaint pleads alternative claims, namely; that Lightenburger was a passenger for a
consideration within the purview of the California Guest Statute, and the proximate cause of
his death was the negligence of James L. Gordon, pilot of the Cessna. In the alternative that
Lightenburger was a guest and the proximate cause of his death was the willful misconduct of
J. Gordon.
The Appellants, the widow and three children, appeal from a judgment on a verdict
returned for the defendants in the trial court, James L. Gordon's executor and his surviving
wife. The Appellants cite as error the giving of six instructions, the refusal to give an
instruction offered by the Appellants, the exclusion of competent and relevant testimony, and
permitting the jurors to have the instructions while deliberating.
We chronicle the events which brought the decedent to this pass, as we deem this
necessary to an understanding of the errors assigned and our rulings.
James L. Gordon and Robert L. Bigelow were associated during the year 1962 in a
business venture organized for the purpose of building, furnishing, and renting apartments in
Las Vegas, Nevada. Gordon had a brother-in-law named Bervial C. Carrington, who was the
owner and manager of the Carrington Carpet Company at Las Vegas, Nevada. Gordon had
verbally assured Carrington that if his merchandise was suitable and the price competitive
Carrington Carpet Company would be favored in an award of a cost plus contract to
furnish the apartments.
assured Carrington that if his merchandise was suitable and the price competitive Carrington
Carpet Company would be favored in an award of a cost plus contract to furnish the
apartments. In November of 1962 Carrington had employed Dale Lightenburger as the
manager of his enterprise under his supervision.
Lightenburger's efforts to obtain that contract included having furniture sketches drafted
for Gordon and Carrington had arranged to have Gordon and Bigelow visit the Los Angeles
Furniture Mart to view and inspect furniture and furnishings. Carrington intended that he and
Lightenburger accompany Gordon and Bigelow to the Mart on December 6, 1962. On
December 5, 1962, using Carrington Carpet Company funds, reservations were made with a
commercial airline and tickets purchased for a flight to Los Angeles on December the 6th.
The cost of these tickets was charged by the bookkeeper to the general operating fund and not
to the cost of this endeavor.
When, on December 6, 1962, Carrington and Lightenburger carried the sketches to
Gordon's office, the meeting resulted in a change of plans. This change came after Gordon
had been informed that Carrington and Lightenburger were flying by commercial airline to
Los Angeles and a rendezvous in Los Angeles was being discussed. The commercial airline
reservations were cancelled and Carrington and Lightenburger boarded Gordon's private
aircraft to fly with Gordon and Bigelow to Los Angeles.
Gordon's aircraft was a Cessna 310-G. The airplane was owned by Gordon Supply
Company, a corporation. The entire stock issue of the Corporation was owned by Gordon. It
was a twin engine aircraft equipped for navigation by instruments, with an approach coupler
and an automatic pilot. There was also a low frequency radio capable of receiving and
transmitting. It had a retractable landing gear and had been inspected in November of 1962
and certified as airworthy.
None of the persons who went aboard that aircraft that afternoon was certified as an
airman except J. Gordon. At the time of this flight Gordon had logged 66S.07 hours of flying
time as a pilot and of these hours 1S2.11 were on instrument flight.
668.07 hours of flying time as a pilot and of these hours 182.11 were on instrument flight.
Gordon had been certified as an instrument pilot in 1962 and in the 60 days prior to this flight
had logged some 90 hours on instruments.
After filing a flight plan with the Air Traffic Control in Las Vegas, Nevada, reporting 6
hours of fuel aboard and four persons, that his destination was the Los Angeles International
Airport, Lockheed Burbank the alternate airport, J. Gordon took off at about 2:15 p.m. The
flight to Los Angeles was uneventful and on schedule. The Cessna pilot at about 3:15 p.m.,
by radio, reported to the Los Angeles Control Tower that the Cessna's location was some 12
miles east of the Los Angeles International Airport. The Cessna pilot asked for clearance to
land and the Cessna was cleared to land. Cleared to Land means the Tower has no known
traffic to conflict with the landing. The Approach Controller then began giving instructions
for the approach and in the course of these, as the weather was not favorable at the Los
Angeles Airport, he suggested that the Cessna be guided to the Santa Monica Airport for a
landing. The Cessna pilot agreed and in a few moments was off the Santa Monica Airport.
When he called the Approach Controller at that airport on radio and asked for permission to
land this was refused. The Controller reported that the airport was closed and gave the Cessna
pilot the radio frequency of the Los Angeles Approach Controller. The word closed as used
here means that the weather is below landing minimums.
The Los Angeles Approach Controller guided the Cessna pilot and in a few minutes he
was again off the Los Angeles International Airport. The Cessna pilot asked for and received
clearance to land. In the next few moments the Cessna pilot terminated the flight to the Los
Angeles Airport and commenced an approach to Runway 25Left at the Airport. An
approach is a descent from flying altitude to a point over the threshold of the runway. At this
point the pilot determines whether he has the minimums of vision vertically and horizontally
which will permit landing.
It is pertinent to note here that when on approach the aircraft has reached that point over
the runway at which the pilot must ascertain if he has the minimums of vision for landing, he
does so visually. That is to say he must govern movement of the aircraft by what he perceives
visually and not by the information given by the instruments on the ground or in the aircraft.
A single pilot is at a disadvantage in executing such a maneuver. If he has a co-pilot he may
rely on the co-pilot to fly the aircraft while he observes, or to observe as he flies.
The prudence of this approach is the critical issue of this action. Not because J. Gordon
was inept in the execution of this maneuver and if he failed in his duty to those persons
aboard the wrong was in his discount of the hazards created by the weather at the Airport.
With one exception not material to the issue the components of and the equipment in the
Cessna aircraft functioned efficiently throughout the approach. It appears too that the
equipment at the Airport involved in guiding this maneuver was in good order and operated
efficiently.
The Los Angeles International Airport is off the ocean at Los Angeles and its runways
extend from east to west some 12,000 feet. The prevailing winds are off the ocean from the
west and aircraft ordinarily take off and approach into the wind from east to west.
During the month of December the Airport is beset by ground fog from time to time. This
occurs when on otherwise clear days, in the late afternoon, the cool moist winds off the ocean
collide with the warm air rising from the runways and other airport areas. The water in the
moist winds condenses into a dense fog. This fog hugs the ground and billows upwards to
heights of between 100 and 300 feet.
At approximately 3:00 p.m. on December the 6th, 1962, the winds off the ocean, blowing
at a recalled 5 knots from the southwest, began forming a ground fog on the Los Angeles
Airport. The fog was observed and reported covering the Airport areas from the west to the
east at a rate described as that of a fast walk.
When the Cessna first arrived at the Airport at about 3:15 p.m. visibility horizontally from
east to west along the 12,000 foot runways had been decreased by fog and smoke to 3,600
feet. The ceiling was not reported.
The weather at the Airport was reported to the Cessna pilot by the Controller at the Airport
and we have the report of several bystanders. Since the observations of the bystanders was not
reported to the Cessna pilot they are not particularly relevant. While the Cessna pilot was yet
off the Airport on his return from Santa Monica he received a radio transmission to the effect
that the runway visual range was then 1,400 feet. A pilot needs at the Los Angeles Airport
2,600 feet of runway visual range at 200 feet altitude in order to land. Runway visual range is
the distance the pilot can see ahead or horizontally from a position over the threshold of the
runway. The 200 feet altitude is also that altitude over the threshold of the runway.
The Cessna pilot, about 2 minutes later, asked for a radar approach, an approach during
which the glide path is scanned continuously by radar at the airport and the pilot is constantly
advised of his position relative to the glide path by the Controller by radio. At that time the
pilot was advised that the runway visual range was 1,200 feet and asked if he still wanted the
radar approach. He answered in the affirmative and was then informed that he was on course
for Runway 25Left and that runway visual range was 1,000 feet.
At about the same time the Approach Controller, who broadcasts on an assigned frequency
and who may be speaking to several aircraft tuned to that frequency, advised an aircraft, here
known as United 9203, that an aircraft ahead of the United had sighted the runway from a
point one mile out and had gone over. The pilot of the United indicated that he was
considering an approach and was advised that the runway visual range was now 1,000 feet. A
minute or so later the United pilot broadcast to the Controller on this frequency that he would
not attempt an approach unless he had a runway visual range of one-half mile when he
initiated his approach. The Controller assured him that he would not have that visual range
and asked if the United wanted to move into a holding pattern.
not have that visual range and asked if the United wanted to move into a holding pattern. In a
moment or so the United was in a holding pattern.
At 4:05 p.m., when the Cessna pilot was more than 7 miles east of the Airport and
touchdown, the Controller advised that the approach would be terminated at a point one-half
mile from touchdown. The word terminate when used in this context means that the
approach, so far as the Controller was concerned, would be discontinued at that point and that
the pilot would maneuver without his guidance.
When, at 4:05 p.m., the Cessna pilot initiated his approach at 8 miles out, he was again
advised that the approach would be terminated one-half mile out from touchdown and that the
runway visual range was then 1,000 feet. A moment later, while he was 6 miles out, the
visual range had decreased to less than a thousand feet and the wind was from the southwest,
and the Cessna was so advised. At 4:08 p.m. the Cessna pilot, then three and three-quarter
miles from touchdown, was told that the ceiling, as perceived at the Airport by the
instruments, was zero, indefinite, sky obscured, runway visual range less than 1,000. When
the Cessna had reached a point 3 miles from touchdown the Cessna pilot was asked by the
Controller, Do you plan to make an approach in this weather? And the answer was, Put me
down on the runway.
When the Cessna reached a point on the approach one-half mile from touchdown the pilot
was advised that he was on course and he was to take over and complete the landing visually
and that if he did not have visual range to land he was then to execute a missed-approach and
report.
As this approach was terminated the radar used on the approach ceased observing the
Cessna aircraft. The radar on the field, which scanned straight ahead over the runways and the
surfaces of the airport, was snapped on; this radar system observes to a height of at least 200
feet and as it was snapped on it picked up the Cessna aircraft. The Cessna was observed on
the screen to fly down the runway at an undetermined altitude but somewhere within a range
of 100 to 200 feet for a distance of 3,000 feet.
for a distance of 3,000 feet. At that point it went off the screen to the left. It banked to the left
at a 70 angle and crashed some 500 feet south of the edge of the runway, headed in a
northeasterly direction. It burned fiercely as a result of the fuel spill. Just prior to the crash the
airplane was observed in this attitudeNose down at 60 descent and its wings almost
vertical. The motor sounded as if full power had been applied. The radar screen showed no
obstacle encountered by the Cessna on its flight down the runway but it is not known whether
or not the radar would pick up a flight of birds.
Four bodies were recovered from the burned aircraft, unidentifiable, except for unburned
portions of clothing and cards. By this means the body found in the left front seat, which is
usually occupied by the pilot, was identified as J. Gordon; the right front was occupied by
Bigelow, and Lightenburger and Carrington were taken from the two rear seats.
A full investigation was made by qualified investigators of the Civil Aeronautics Board
(CAB) of the facts surrounding the crash. The components of the aircraft not destroyed by the
fire were examined carefully, the engines were pulled and torn down. There was no evidence
of fire prior to the impact. One of the landing gears was in a down position with the flaps
entended to a degree not remembered by the investigator. The throttles were in a forward,
wide open position, the radio was on, the landing gear control lever was in a down position
and finally the button activating the instrument known as the automatic pilot was off. An
automatic pilot is an instrument which, when activated, will maintain the course and attitude
the pilot selects for the flight of the aircraft. This leaves the pilot free to give his attention to
other exigencies of the maneuver as, in this instance, attempting a visual contact. The button
activating the automatic pilot is under the pilot's left thumb, on the wheel, and has no detent
such as the button activating the landing gear, and may be turned off and on at will. An expert
testified that in the crash the thumb may have unwittingly moved to turn off the at in the
crash the thumb may have unwittingly moved to turn off the at in the crash the thumb
may have unwittingly moved to turn off the at in the crash the thumb may have
unwittingly moved to turn off the at in the crash the thumb may have unwittingly moved
to turn off the at in the crash the thumb may have unwittingly moved to turn off the at in
the crash the thumb may have unwittingly moved to turn off the at in the crash the thumb
to turn off the at in the crash the thumb may have unwittingly moved to turn off the at in
the crash the thumb may have unwittingly moved to turn off the at in the crash the thumb
to turn off the at in the crash the thumb may have unwittingly moved to turn off the
button activating the automatic pilot.
at in the crash the thumb may have unwittingly moved to turn off the at in the crash the
thumb may have unwittingly moved to turn off the at in the crash the thumb may have
unwittingly moved to turn off the at in the crash the thumb may have unwittingly moved to
turn off the at in the crash the thumb may have unwittingly moved to turn off the at in the
crash the thumb may have unwittingly moved to turn off the at in the crash the thumb may
have unwittingly moved to turn off the at in the crash the thumb may have unwittingly moved
to turn off the at in the crash the thumb may have unwittingly moved to turn off the at in the
have unwittingly moved to turn off the at in the crash the thumb may have unwittingly moved
to turn off the at in the crash the thumb may have unwittingly moved to turn off the at in the
have unwittingly moved to turn off the button activating the automatic pilot. A team of
investigators examined the control surfaces, control cables, elevators, rudders, ailerons,
fuselage, and an investigator observed that the elevator was attached to the empennage.
It is not known whether the aircraft was airworthy at all times prior to the crash. The
opinion of the investigators who examined the several components of the aircraft and took
notes as they did so was refused by the trial court as violative of the rule as to conclusions.
The opinions, if permitted, would have related to the power plants and the propellers, the
instruments in the aircraft, the control cables, the fuselage, the tail assembly and landing gear
and would have been an opinion as to the airworthiness of the aircraft during the maneuver
and prior to the crash.
Experts eminently qualified by hours and hours of flight, both by visual and instrument
flight, testified to the issue and gave opinions on the better practice in situations such as was
encountered by J. Gordon. As one would suspect, they disagreed. The Appellants' experts
saying that good practice dictated going to the alternate airport, not commencing the
approach, and if the approach was commenced it should have been abandoned. The
Respondents' expert stated that good practice would countenance an approach as a standard
procedure for a competent pilot.
The experts also disagreed on the subject of disorientation. Disorientation occurs when the
pilot, unable to see and relate to the horizon because it is obscured by weather, loses his
equilibrium and is no longer able to sense whether his aircraft is ascending, descending, or
turning one way or the other. The Appellants' expert opined that the disorientation was a
possibility. The Respondents' expert's opinion was that a valid opinion could not be formed.
But it must be remembered that the experts' judgments were based on a different set of facts.
The Appellants assume that between 100 and 200 feet altitude the Cessna was flying in fog
and perhaps attempting a landing. The reply to this is that the nature and behavior of ground
fog, having been described by a qualified meteorologist, it does not rule out fog at 100
feet, more or less, and since no one observed the fog from the sky it is just as reasonable
to assume that the Cessna flew above the ground fog.
described by a qualified meteorologist, it does not rule out fog at 100 feet, more or less, and
since no one observed the fog from the sky it is just as reasonable to assume that the Cessna
flew above the ground fog.
Veteran pilots who had experienced panic by persons aboard told about their experiences
but it does not appear that in any instance the person in panic did succeed in wresting the
controls from the pilot. It was also established that this danger could be avoided by
deactivating the controls on either the left or the right side of the aircraft. More to the point,
no one proffered an opinion as to whether the persons aboard the aircraft would be aware of
the hazards of the maneuver and the dangers of the situation or that they would be subject to
disorientation.
It was learned from the evidence that wing tip vortexes are circular rotational velocity
fields generated by wing tips of heavy fast moving aircraft. The vortex results from the lift
created by the wing and it circulates on a horizontal axis. The velocity of the rotating air mass
is sufficient to flip light planes on their backs and for the moment that aircraft is out of
control. It is apparent that at low altitudes there is not space to recover. The speed of the
aircraft encountering a vortex is an important factor. If the aircraft is moving at near stalling
speed the peril is heightened. The period it takes to dissipate the velocities depends on the
turbulence of the winds aloft and in still air the process of dissipation is slow. The occasion
for considering vortexes arose from the missed approach executed by the large aircraft ahead
of United 9203.
Here again there was disagreement by the experts on the time consumed in the dissipation
of the velocities of a vortex. The time factor here between the flight of the large aircraft and
the Cessna ranged from 23 to 7 minutes. There was testimony that except in infrequent
instances the velocities dissipated to the point of being innocuous in 2 to 3 moments. And
that light aircraft regularly followed heavy aircraft in taking off or approaching and landing at
intervals of one minute at busy airports, and by direction of Traffic Controllers.
It was the opinion of the Respondents' expert that a vortex caused a violent roll of the Cessna
and that the vortex resulted from the vortex trail of the Boeing 707, the United 9203. We note
here that it was to this airplane that the Controller reported that an airplane had gone over.
Section 6047 of the Civil Air Regulations provides, Within controlled airspace the pilot
in command of the aircraft shall insure that continuous watch is maintained on the
appropriate frequencies * * *. The Controller in this instance testified that the normal
procedure is to transmit information to the first pilot coming in with the expectation that the
information will be received by other aircraft without repetition. The Respondents' expert in
airmanship stated a pilot normally hears only those transmissions concerned with him and
another pilot stated that he did not ordinarily monitor the broadcasts. Neither were asked what
would be good practice under the circumstances of this case.
The weather conditions at the alternate airport have been reported and it appears that at
15:55 (3:55 p.m.) surface visibility at that airport was 2 miles, at 16:55 (4:55 p.m.) it was still
2 miles, and at 17:32 (5:32 p.m.) it had improved and was then 3 miles. The United Flight
9203, after entering the holding pattern at the Los Angeles Airport, later departed for Burbank
Lockheed Terminal and made a visual landing there at 4:36 p.m.
On approach an aircraft of this type reduces speed to approximately 90 miles per hour. On
takeoff or a missed approach the speed is increased to 120 miles per hour.
When a pilot executes a missed approach he first applies takeoff power to increase speed,
then moves the pressure on the engines forward; next the pilot trims his aircraft by initiating
retraction of the landing gear and retracts the flaps thus reducing the air drag on the airplane.
It takes a few seconds to increase power and manifold pressure and 12 to 15 seconds to trim
the aircraft. These things accomplished he ascends on a prescribed course to a certain location
and reports to the Control Tower the location of his aircraft.
We have written the facts, and perhaps to a tedious length, with this purpose in mind. We
deem it necessary to point up the contentions of fact not with the idea of resolving these
issues but to illustrate the error, if any, in instructing the jury on the law. We will, of course,
confine our attention to the instructions objected to by the Appellants.
A cross-appeal was not filed but the Respondents contend that error could not have been
committed as there was no issue of fact and a directed verdict was in order. We refer to the
Respondents' argument that if it was folly to execute the approach there has been no showing
that this act was the proximate cause of the crash. They support this contention by the
observation that there was no evidence of disorientation prior to the crash and the
Respondents argue that the Appellants postulate since they have not eliminated other causes
of the crash. They insist that failure of a critical component of the aircraft prior to the crash,
the possibility that the Cessna encountered a vortex, and that a person aboard panicked and
grabbed the controls from the pilot account for the crash as convincingly as pilot error. Nor is
it sophism, they say, to conclude that a directed verdict would have been proper in this action
on this premise, the law will not permit a deduction that because an air crash occurred the
crash was the product of pilot error and induced by a hazard of inclement weather, especially
since the other causes have not been eliminated.
We think the Respondents argue their concept of the facts and if we consider it more
reasonable, and we express no inclination, it would avail them nothing. It is for the jury to
decide whether the Cessna moved over the runway in the fog or in the clear, whether
disorientation manifests its effects by degrees or abruptly, the significance of the Cessna
pilot's reply to the inquiry made by the Controller as to whether he would persist in his
approach, and many other issues of fact. We here only determine whether the Appellants had
a fair hearing on these issues.
1. It is out of order but we take up the first assignment of error, that to the admission of
the evidence.
[Headnote 1]
I think the trial court erred in excluding the testimony.
(1) It was opinion evidence and it touched on a material issue. It is apparent that
Appellants offered this testimony to prove that there had not been, prior to the crash, a failure
of a critical component of the aircraft. CAB investigators, who were asked to testify and give
an opinion, were specifically trained and experienced to make observations of this nature and
to reach conclusions. If permitted, and with the aid of notes taken while examining the
remnants of the aircraft, the several investigators would have given an opinion that the
component examined by them was capable of normal operations prior to the impact. These
statements would have been made as to the aircraft's control systems, the components of the
fuselage, the engines and the propellers.
Perhaps the more acceptable answer, if a proper question is put, is that in their
examination of the remnants of the aircraft the investigators saw no evidence of operational
stress or in the negative, that the damage they saw in every instance could be attributed to the
impact or the fire. In any event the testimonies do not violate the hearsay or the opinion rule.
The investigators were doing no more than reporting personal observations about the
condition of the remnants of the aircraft. This requires an astuteness and experience and
honest interpretation of what they observed. Time and again in this action experts were called
upon to state opinions regarding good practice in flying, the nature and potential danger by
vortex and possibilities of disorientation. It is manifest that the jurymen cannot depend upon
their skills and experience in interpreting the data observed and reported to them by witnesses
and if they are to reach conclusions they do so with the assistance of experts. It is important to
note too that the conclusion was one of fact and not of law and this is another fact to be
considered by the jury in determining the cause of the crash and if anyone was culpable.
[Headnote 2]
The investigators had special skills in making interpretations upon data observed by them.
The jury should have the benefit of their special skills and if their opinion testimony survived
the test of cross examination the jury has evidence on which to reach a conclusion. It must be
remembered that the jurymen finally decide the issue and their function is not usurped by the
expert. Any aid in arriving at an intelligent decision should be admitted. See Lumberman's
Mutual Casualty Co. v. Industrial Accident Commission, 29 Cal.2d 492-500, 175 P.2d 823
and 828; Wigmore on Evidence, 3d ed., Vol. 7, 1919-1929, p. 14 et seq. We do not
consider whether a statement of opinion violated the provisions of the Civil Aeronautics Act,
49 U.S.C.A. 1441 (e) since the objection was not on that ground. But the testimony
contained no opinions or conclusions as to the cause of the accident. Lobel v. American
Airlines, 192 F.2d 217 (2d Cir. 1951), certiorari denied, 342 U.S. 945, 72 S.Ct. 558, 96 L.Ed.
703. Those portions of the reports which as a practical matter would tell the trier how the case
should be decided should be excluded.
2. On the subject of decedent's status the trial court instructed the jury: There are two
factors which must be established before an occupant of an airplane can legally be considered
to be a passenger rather than a guest; (1) That the pilot received tangible benefit from
providing transportation for the occupant; (2) That a receipt of a tangible benefit motivated
the act of providing transportation. A benefit which the pilot would receive whether he
provided transportation or not does not legally constitute the necessary motivation for
providing transportation.
The instruction was excepted to by the Appellants on two grounds. One, that it substitutes
the test of actual receipt of benefits for the proper test under the California law which is the
motivation test involving the state of mind of the pilot. And two, the motivation test may
encompass the expectation of a future benefit and the instruction emphasizes the actual
receipt.
[Headnotes 3, 4]
The criticism is valid only if the Appellants submitted to the jury evidence proving a
benefit following the furnishing of the transportation. It may unduly emphasize the idea of
actual prior receipt of a benefit as a motive for furnishing transportation but it does properly
state that if the benefit would have been received, whether transportation was furnished or
not, then it cannot be the necessary motivation for providing the transportation. In California
if a person provides transportation to another with the anticipation that a benefit to him will
follow the person transported has the status of a passenger and is not a guest. Haney v.
Takakura, 2 Cal.App.2d 1, 37 P.2d 170 (1934); 38 P.2d 160; Kruzie v. Sanders, 23 Cal.2d
237, 241, 143 P.2d 704 (1943); Gillespie v. Rawlings,49 Cal.2d 359, 317 P.2d 601 (1957).
This appeals as a sensible proposition and we see no justification in adopting a different rule
in Nevada where in fact the transaction resulting in the furnishing of transportation occurred
in this action. Nyberg v. Kirby, 65 Nev. 42, 188 P.2d 1006. The fault of the Appellants'
assignment is that we cannot perceive a future benefit of value and cannot therefore find
injury to the Appellants.
We concede the value of access to the Mart and to having the benefit of Lightenburger's
experience and training in furnishings and furniture while on the tour of the Mart. But access
to the Mart had been provided prior to the meeting in Gordon's office and Lightenburger had
already committed his services to Gordon and would have been available in either event. For
these reasons the case cited by the Appellants, Liberty Mutual Insurance Company v. Stitzle,
220 Ind. 180, 41 N.E.2d 133-136, is not apposite. In that case the purchaser furnished
transportation anticipating she would have the benefit of the services of an interior decorator,
and would not have had the services if she had not furnished transportation. The one benefit
that may have been in J. Gordon's mind in offering transportation was the convenience
afforded him by having Carrington and Lightenburger at hand upon his arrival at Los
Angeles.
This is speculation and in the absence of proof it is reasonable to conclude that the
transportation was offered as a courtesy. The invitation did come at the time they were
discussing a time and place of meeting, and this proof suggests this possibility. If upon
discussion of the meeting in Los Angeles problems were encountered, such as plane
schedules, these facts were not obliterated with the death of the participants and the loss of
memory of a bystander. But until some showing is made supporting the proposition that J.
Gordon anticipated receiving a benefit of value to him the Appellants cannot complain that
the instruction does not reflect their theory.
3. The Appellants excepted to Instruction No. 25. The instruction readsIf you find that
the regulations of the Federal Aviation Agency provided that a particular course of action was
either permitted or prohibited under the circumstances and conditions of flight involved in
this case, then such regulations are your guide in determining whether the fact that such
maneuvers were performed was negligence or non-negligence. The exception was on the
grounds that, Compliance with the regulation is only a minimum standard of due care. The
jury is still free under all the circumstances to render an independent determination of even
whether compliance is negligence.
A number of Federal Aviation Agency regulations were given to the jury by way of
instructions. From these we learn that the pilot in command of an aircraft, Is directly
responsible for its operation and shall have final authority as to the operation of the aircraft.
In emergency situations requiring an immediate decision the pilot may deviate from the
regulations to the extent required by consideration of safety. Also that no person shall operate
an aircraft in a careless or reckless manner so as to endanger the life or property of others. A
number of definitions are included and finally this regulation, That no aircraft, after reaching
an altitude equal to the minimum altitude for landing specified in these regulations, will
descend below such altitude unless it is clear of clouds and thereafter, except when landing
minimums equal to or higher than 1,000J2 are authorized, the aircraft will not descend
more than 50 feet below such altitude unless, {1) It has arrived at a position from which a
normal approach can be made to the runway of an intended landing, and, {2) Whether the
approach threshold of such runway or the approach lights or other markings identifiable
on such runway are clearly visible to the pilot.
landing minimums equal to or higher than 1,000/2 are authorized, the aircraft will not
descend more than 50 feet below such altitude unless, (1) It has arrived at a position from
which a normal approach can be made to the runway of an intended landing, and, (2) Whether
the approach threshold of such runway or the approach lights or other markings identifiable
on such runway are clearly visible to the pilot. If at any time after descent below the clouds,
the pilot cannot maintain visual reference to the ground or lights, he will immediately execute
the appropriate missed-approach procedure prescribed in the regulations in this part.
Instruction No. 52 reads as follows: (A) A missed-approach procedure will be formulated for
each procedure. A missed-approach would normally be made on a course which most nearly
approximates a continuation of the final approach course, after due consideration of
obstructions, terrain, and other factors influencing the safety of the operation. The
missed-approach course, however, need not necessarily be a straight line. A missed-approach
will be initiated at the point where the aircraft has descended to authorized landing minimums
at a specified distance from the facility if visual contact is not established, or if a landing has
not been accomplished or when directed by Air Traffic Control. The specified distance' may
not be more than the distance from the facility to the airport * * *. We also note that
elsewhere in the instructions (Instructions 12 and 56) the trial court instructed that the
practice and usage of airmen could also be considered in determining whether the pilot
exercised due care. In Instruction No. 12 this admonition was added, Custom, usage and
practice cannot change or overcome a statute or [a] regulation of the Federal Aviation
Agency.
The Appellants augment their exception with these additional arguments. It is argued that
the specificity of this instruction operates to invalidate the instruction defining negligence in
general terms; that for the same reason it detracts from those instructions on practices and
usages of airmen and implies that if the pilot's conduct can be approved by this measure the
other factors and circumstances properly considered in determining whether the pilot
offended or obviated by this instruction.
conduct can be approved by this measure the other factors and circumstances properly
considered in determining whether the pilot offended or obviated by this instruction. We
think that the last argument comes within the terms of the exception taken by the Appellants
and so we will consider it.
[Headnotes 5, 6]
Assigning the regulations the rank of guide in determining whether the fact the maneuvers
were performed, was negligence or non-negligence, is an offense to the California law that
compliance with an administrative safety regulation, though evidence for the jury to weigh in
determining the issue of care, does not absolve the defendant from negligence. Bush v.
Southern Pacific Company, 106 Cal.App. 101, 289 P. 109; Beeks v. Joseph Magnin
Company, 14 Cal.Rptr. 877; Roberts v. Trans World Airline, 37 Cal.Rptr. 291. And saying by
way of exception that there were other facts to be considered by the jury in deciding this issue
and the jurors should be free to do so, is tantamount to saying that the instruction because of
its language operates to direct a verdict except as to the issue encompassed in the instruction.
When one compares the temperate and circumspect language of the other instructions, such as
those on usages and practices of airmen, with the directive language of this instruction we
must agree that the Appellants had cause for complaint. The jury could have been led to
interpret Instruction No. 25 to mean that compliance with FAA Regulations is synonymous
with due care, when in fact the issue is not the care exercised in performing but whether the
pilot exercised due care in weighing the risks of the maneuver.
[Headnote 7]
There is likelihood of confusion when a correct instruction is in general terms and an
erroneous instruction in specific terms. Howard v. Worthington, 50 Cal. App. 556, 195 P.
709.
4. The Appellants took exception to given Instruction 40 on the ground that under the law
of California the definition of willful misconduct consists of two distinct elementsOne is
deliberate conduct in doing or omitting to perform an act with knowledge on the part of
the culpable person that it is likely to result in serious injury.
the definition of willful misconduct consists of two distinct elementsOne is deliberate
conduct in doing or omitting to perform an act with knowledge on the part of the culpable
person that it is likely to result in serious injury. The second element is a wanton and reckless
disregard of the possible consequences.
[Headnote 8]
After telling the jury that if they found that Dale Lightenburger's status was that of a guest
the trial court instructed that the Plaintiffs could recover only upon proof that the deceased
pilot, J. Gordon, Was guilty of willful misconduct which necessarily involved deliberate
intentional conduct in doing or omitting to perform an act either with the knowledge on the
part of the culpable person that it is likely to result in serious injury or wanton and reckless
disregard of the probable consequences. The Appellants argue that the law of the State of
California is applicable. Mitrovich v. Pavlovich, 61 Nev. 62, 114 P.2d 1084; Geller v.
McCown, 64 Nev. 102, 177 P.2d 461. The Respondents did not answer to this proposition
and we adopt the Appellants' view that the California law applies. The Appellants then trace
the definition of willful misconduct in the California cases from an early statement in Van
Fleet v. Heyler, 51 Cal.App.2d 719, 125 P.2d 586 (1942), through the last reported case,
Reuther v. Viall, 42 Cal.Rptr. 456, 389 P.2d 792. These cases and the intervening cases, Cope
v. Davison, 30 Cal.2d 193, 180 P.2d 873 (1947); Goncalves v. Los Banos Mining Co., 58
Cal.2d 916, 26 Cal.Rptr. 769, 376 P.2d 833 (1962); Meyer v. Blackman, 59 Cal.2d 668, 31
Cal.Rptr. 36, 381 P.2d 916 (1963); Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955);
Carmean v. Bridges, 142 Cal.App.2d 99, 297 P.2d 671; Fuller v. Chambers, 142 Cal.App.2d
377, 298 P.2d 125, use the language Wanton and reckless disregard of the possible results.
The Respondents' answer to this is that it is a sophisticated play on words and void of logic.
And apparently this too is their answer to the Appellants' contention that the error was
material when the evidence is considered. It must be conceded that the instruction does not
use the language of the California cases, and I think the error material when we recall that
the Appellants' expert airman stated that disorientation was a possibility when an
approach was missed under such conditions by a pilot of J.
of the California cases, and I think the error material when we recall that the Appellants'
expert airman stated that disorientation was a possibility when an approach was missed under
such conditions by a pilot of J. Gordon's experience. He would not say that it was a probable
consequence. Wanton reckless disregard could be found by the jury in these facts; as the pilot
descended he did so with the knowledge that there was a steadily deteriorating visibility at the
airport and that visibility was already below the Federal Aviation Agency minimums, that the
Controller would terminate at a point one-half mile from touchdown thereby cutting off
communications and guidance, that if he persisted in the approach he would be required to
attempt a visual contact and expose himself to disorientation and when queried whether he
intended making an approach in this weather he answered, Put me right down on the
runway.
The Court gave this instruction as Instruction No. 44Whenever an airplane with dual
controls crashes leaving no survivors a question arises as to which of the two persons with
equal access to the flight controls was actually controlling the aircraft at the time of the crash.
If you find from the evidence that the aircraft was under the control of some person
during the final flight maneuver which resulted in the crash and that the final flight maneuver,
even though negligently performed, was consistent with the intended flight pattern of the pilot
then you may infer that the one most likely to be flying was the person piloting the aircraft at
the time of the accident.
If, however, you find the final flight maneuver was a radical maneuver and was not
consistent with the intended flight pattern of the pilot then you may not make an inference
that the airplane was under the control of a particular person at the time of the accident.
The Court also gave Instruction No. 61 which inserts the following paragraph between the
second and the last paragraph but is otherwise identical with Instruction No. 44. In making
this determination, you may take into consideration all the factors bearing on the question,
including the ownership of the airplane, the possession of a license by James L.
take into consideration all the factors bearing on the question, including the ownership of the
airplane, the possession of a license by James L. Gordon, the nonlicensure of the other
occupants of the aircraft, the identity of the pilot in command of the flight, the post crash
position of the bodies and the custom, if any, of customary seating of the pilot operating the
plane.
This instruction was formulated and offered by the Respondents' counsel after the study of
these cases. Morrison v. LeTourneau Company of Georgia, (5 Cir. 1943), 138 F.2d 339;
Towle v. Phillips, 180 Tenn. 121, 172 S.W.2d 806; Hall v. Payne, 189 Va. 140, 52 S.E.2d 76.
In the case of Morrison v. LeTourneau Co., supra, the aircraft was observed shooting
straight up 200 feet and at that point a wing was torn off. In Towle v. Phillips, supra, after
what appeared to be a normal takeoff the airplane made a vertical climb at low altitude, then
stalled, dropped and fell to the ground. In Hall v. Payne, supra, the plane was observed
circling over rough terrain and gradually losing altitude and then was observed falling to the
ground where it crashed and burned. Apparently in the later stages of this maneuver the
aircraft lost power since the witnesses reported they heard the engine sputtering, then the
engine was cut off and then the aircraft made a whistling sound and the witness could not
hear the engine.
In the first two cases the court refused to apply the doctrine of res ipsa loquitur. The
doctrine was discussed but not applied as the court found that there are a number of causes
for airplane crashes and not all of these are necessarily related to pilot error. Among the
conjectures were engine failure, operational stress, failure of control systems, and seizures by
an occupant who had panicked. In each case the court ruled that proof that the aircraft
appeared to be out of control did not establish negligence on the part of the pilot.
[Headnote 9]
Whatever the background for this instruction we agree with the Appellants that
Respondents' evidence is emphasized unduly by the instruction.
is emphasized unduly by the instruction. The Respondents submitted evidence showing that
passengers in aircraft sometimes when placed in fearful situations panic and seek relief in
grabbing the controls. There was no evidence that this happened in this instance.
From this the Respondents derived that if an aircraft crashes and there are aboard two
persons to whom the controls are equally accessible a question arises as to who was in control
at the time of the crash. If this is true as a matter of law then on what is it based? We very
much doubt that Respondents' evidence is sufficient to show a propensity of men nor is it
proper to say that because the crash occurred we should suspect interference.
As long as the flight is within the bounds of normal flight, and we think that the phrasing
should have been normal flight patterns instead of intended flight patterns, it is to be inferred
that the airman is in control. But if the final flight maneuver is radical which, of course, puts
it without the bounds of normal flight, the inference cannot be made. Again we ask, what
propensity of man or characteristic of air flight do we ascribe this inference? It is true that a
novice would have to be uncommonly gifted to perform normal flight patterns under these
conditions. But this instruction implies that competent airmen are rarely capable of radical
maneuvers and that we should search elsewhere for the cause of the crash.
The Appellants say that the instruction does not properly present the issue and that it is
tendentious comment on the evidence. With this we must agree. When, from all the facts
bearing on the issue of the identity of the persons at the controls at the time of the crash,
certain facts are singled out and connoted for the jury the other facts bearing upon this issue
lose significance. Suppose the trial court had said to the jury that normally competent airmen
do not perform radical maneuvers, that learning to fly competently is the discipline of
avoiding radical maneuvers and when a radical maneuver occurs in flight a question of the
competency of the airman arises. We are aware that it would not have been judicial but it
serves to point up that unless a fact bearing on an issue has a special significance found
in the propensities of men or in the laws of nature the trial court should submit the issue
by way of a general instruction.
have been judicial but it serves to point up that unless a fact bearing on an issue has a special
significance found in the propensities of men or in the laws of nature the trial court should
submit the issue by way of a general instruction. The most that Appellants should suffer is
that if the jury, after considering all the facts bearing on this issue, remain unconvinced as to
the identity of the person at the controls, the party submitting the evidence has failed to carry
the burden of his proof. We are not even permitted in this State as judges to think for the jury
in a judicious manner and say what facts the court considers pertinent to the issue. We see no
merit in the proposition that because the final maneuver is radical the pilot is any less suspect,
especially when the evidence submitted by the Appellants is directed towards showing that
the maneuver was due to a disorder of the senses.
We have already said that the error of a specific instruction is not erased by a more
acceptable general instruction.
The trial court refused to give Proposed Instruction A offered by Appellants which reads
as follows:
It is the duty of a pilot not to operate an aircraft in a careless or reckless manner so as to
endanger the life of others. This duty is not necessarily fulfilled by complying with those
regulations issued by the Federal Aviation Agency. Such regulations prescribe only the
minimum measure of care that would satisfy the Federal Aviation Agency and the law.
Whether or not compliance with such regulations, if there was such compliance, amounted to
reasonable care is a question that the jury must decide according to the following principle,
namely, any measures that would have been taken by a reasonably prudent pilot to protect the
occupants of the aircraft in question and at the time in question from a particular danger, it
there was such danger, in view of the particular circumstances at the specific time, with the
measures required of the pilot. Compliance with the regulations of the Federal Aviation
Agency does not relieve a pilot from exercising ordinary care in the operation of the aircraft.
If a reasonably prudent pilot would have abandoned the approach under the particular
circumstance the pilot was guilty of negligence.
pilot would have abandoned the approach under the particular circumstance the pilot was
guilty of negligence. If the pilot complied with the regulations of the Federal Aviation
Agency after reaching altitude for landing specified in the regulations, the pilot still had the
duty to exercise the care of a reasonably prudent pilot in the circumstances of operating the
aircraft.
The reasons given for refusing the instruction have not been endorsed on the offered
instruction nor do they otherwise appear in the record.
The Federal Aviation Agency, by its Regulations, prescribe the manner of performing
flight maneuvers. These Regulations are designed to promote safe conduct of air traffic.
However, none of the Regulations, or none that we have seen, impinge upon the pilot's
discretion in determining whether a maneuver shall be attempted, persisted in, or abandoned.
The pilot's final authority in the operation of the aircraft is recognized in Section 60.2 of the
Regulations. At the same time those persons controlling air traffic are at great pains to fully
inform the pilot so that he may act prudently in making his decisions. The experts agree that
the maneuver here considered was competently performed. They did not agree that it was in
accord with good practice and usage to execute the maneuver under the circumstances shown
by the evidence. It was recognition of this issue that the Appellants sought on this proposed
instruction.
We have already held it was error to instruct that the decision on the issue should depend
on whether a particular maneuver was permitted or prohibited by the Regulations under the
circumstances and conditions of this flight. The issue is whether the pilot used due care in
appraising, or went so far as to flout the dangers inherent in the weather conditions reported
from the Airport. Final authority entails like responsibility. We relate the Regulations on
maneuvers to standards for performance but not to the advisability of undertaking, persisting
or in abandoning a maneuver. If the pilot's sole skill was the competent performance of a
maneuver flying would no longer be an art.
[Headnote 10]
The instruction proposed by the Appellants does not reach the issue as we conceive it. It
also assumes that the decision of the pilot as to the operation of his aircraft is governed by the
Regulations and asks that a higher standard of care than compliance with the Regulations be
imposed. The usage and practices of competent airmen was an issue of fact in this action.
What other issue than to the prudence of the pilot in exercising his final authority renders
such evidence competent and admissible? We are unaware of any Regulation specifying when
a pilot should resort to an alternate airport or when he should approach. The standard of care
required in the exercise of this authority is not found in the Regulations and competent
performance does not necessarily assure safety. His skill in performing a maneuver may
influence a pilot in determining whether he shall attempt it but other factors must be
considered too. The pilot carries the same burden of care as any other person engaged in the
practice of an art.
Even if we were to accept the instruction proposed as a fair statement of the law on an
issue we would not accept it in the form it is now written. It has the fault of repetition but we
reject it as an improper framing of the issue.
[Headnote 11]
The Appellants assign as error the trial court's rule permitting the jury to have the
instructions during its deliberations. We deem it a procedural matter that has for some time
now been permitted by the Nevada Rules of Civil Procedure. NRCP 51; Beale on Conflict of
Laws, Vol. 3, 548.1, et seq., at 1599.
We have not agreed in every instance on the merit of the Appellants' protests. If our views
are dissident in that aspect, they are not on the necessity for a new trial. I think the failure of
the trial court to properly instruct or rule on evidence on any single major issue, such as
identity of the person at the controls at the time of the crash, or the airworthiness of the
aircraft prior to the crash, would be sufficient cause to order a reversal.
reversal. The cumulative effect impresses my colleagues. Garner v. State 78 Nev. 366 374
P.2d 525 (1962). And so having had our say, we reverse and remand for a new trial.
Thompson, J., with whom Badt, J., join, concurring:
We agree with Judge Wines that the judgment below must be reversed and another trial
ordered, but we do not wholly agree with his reasoning and treatment of some of the assigned
errors. Hence, this concurring opinion.
To place the appeal in focus, some preliminary comments are in order. First, the main
dispute on appeal is over certain of the jury instructions given regarding the alternative
theories of liability under California law. One theory claimed that Lightenburger was a
passenger for consideration, and was killed by the negligence of the pilot James Gordon. The
other alleged Lightenburger's status to be that of a guest, and sought to impose liability
because of the willful misconduct of Gordon. As a general verdict was returned, we do not
know the reason for the jury result. Recovery may have been denied because the jury believed
that Lightenburger was a passenger, and pilot negligence was not shown; or because they
found Lightenburger to be a guest and the pilot's willful misconduct was not established; or
because the pilot's conduct, however characterized, did not proximately cause the crash. A
request was not made that the general verdict of the jury be accompanied by answers to
interrogatories, NRCP 49(b). In these circumstances, substantial error in the charge of the
court as to either of the alternative theories of liability would require a remand for another
trial. Sunkist Growers v. Winckler & Smith Co., 370 U.S. 19.
Second, the appellants do not assert that the evidence will not support the verdict reached
by the jury. The issues regarding status and liability were treated below, and here, as fact
issues which the jury could decide either way without fear of reversal by a reviewing court.
court. The crash occurred in California, and the substantive law of that state was deemed
controlling by the litigants. The trial proceeded with California law in mind. Mitrovich v.
Pavlovich, 61 Nev. 62, 114 P.2d 1084 (1941); Campbell v. Baskin, 69 Nev. 108, 242 P.2d
290 (1952). Thus, we are not presented a choice of law problem. Cf. Kilberg v. Northeast
Airlines, 9 N.Y.2d 34, 172 N.E.2d 526 (1961); Pearson v. Northeast Airlines, 2 Cir., 307 F.2d
131 (1962).
1. The jury instructions of which the appellants complain seem to us to favor the defense
to such an extent as to throw doubt upon the reliability of the verdict reached. For example,
the instruction dealing with Lightenburger's status (passenger or guest) is cast in words that
tend to preclude anticipated future benefit as an effective status-changing factor, and also
includes a sentence which comes close to advising the jury that Lightenburger was a guest as
a matter of law. The instruction about willful misconduct speaks in terms of probable
consequences rather than possible consequences, though California law is quite clear as to
this aspect of the instruction. The words used to advise the jury that applicable F.A.A.
regulations are your guide in deciding negligence, unduly emphasize the significance of
those rules and almost preclude the jury from finding negligence if it found that the
regulations had been complied with. The instruction regarding an aircraft with dual controls
should not have been given at all, and the last sentence of that instruction tells the jurors, in
effect, that if they find the final flight maneuver to have been a radical maneuver, the aircraft
was not under Gordon's control. These instructions concerned the main issues in the case.
Exception was duly taken to each of them. The case was not a one-sided affair, and called for
special care in advising the jury on the law.
(A) The challenged instruction regarding status was, There are two factors which must be
established before an occupant of an airplane can legally be considered to be a passenger
rather than a guest; (1) That the pilot received a tangible benefit from providing transportation
for the occupant; (2) That a receipt of a tangible benefit motivated the act of providing
transportation.
benefit motivated the act of providing transportation. A benefit which the pilot would receive,
whether he provided transportation or not, does not legally constitute the necessary
motivation for providing transportation. Judge Wines has pointed out in his opinion that
Carrington and Lightenburger had purchased tickets to fly by commercial airline to Los
Angeles, intending to meet Gordon and Bigelow there. A change of plans apparently resulted.
The commercial flight was canceled, and Carrington and Lightenburger boarded Gordon's
private aircraft to fly with Gordon and Bigelow to Los Angeles. The last sentence of the
instruction is directed to this bit of evidence and almost tells the jury that Lightenburger was a
guest because he would have been present in Los Angeles to assist Gordon in any event. It is
true that the words used do not absolutely preclude a finding that Lightenburger was a
passenger. They are, however, slanted in that direction. We think the observation of the
California court in Thompson v. Lacey, 42 Cal.2d 443, 267 P.2d 1 (1954) significant. There
several employees of a company, in the course of employment, rode together to their
company's meeting. The court held the fact that the company was reimbursing the driver for
mileage was significant to show the driver was being compensated for the trip even though
he would have received the same amount whether or not he carried other employees with
him.
Pertinent California authority about benefit is reviewed in Gillespie v. Rawlings, 49
Cal.2d 359, 317 P.2d 601 (1957). The court simply concludes that the central thought running
through the cases is that a tangible benefit, not mere pleasure, kindness or friendship alone,
must be the principal inducement for the ride to constitute compensation. In the case at bar,
the jury could have found that the principal inducement for the ride was to further the
business considerations of Gordon. Lightenburger, as manager of Carrington Carpet, was
Gordon's prospective supplier of furnishings. On the other hand, the jury could permissibly
have concluded that Gordon did not receive any tangible benefit by providing transportation
for Lightenburger in addition to Carrington. The issue was one of fact, which could have
been decided either way.
could have been decided either way. Whittemore v. Lockheed Aircraft Corp. 51 Cal.App.2d
605, 125 P.2d 531 (1942); Halbert v. Berlinger, 127 Cal.App.2d 6, 273 P.2d 274 (1954).
Resolution of that issue should not have been blurred by an instruction which, by clear
implication, directed the jury's attention to an inconsequential bit of evidence. We do not
agree with Judge Wines that the claimants' showing was insufficient to support the
proposition that Gordon anticipated receiving a benefit of value to him.
(B) The California legislature has enacted a guest law applicable to aircraft accidents.
Cal.Pub.Util.Code 21406. This statute is interpreted similarly to California's automobile
guest law. Halbert v. Berlinger, supra. One who rides in an aircraft as a guest has no right
of action against the pilot unless he can show intoxication or willful misconduct. The
appellants assert that the court erred by instructing the jury that willful misconduct involves
a wanton and reckless disregard of probable consequences, arguing that California law
speaks of possible consequences. California prefers a bifurcated definition of willful
misconduct: conduct either with knowledge that serious injury to the guest probably will
result, or with a wanton and reckless disregard of possible consequences. Gillespie v.
Rawlings, 49 Cal.2d 359, 317 P.2d 601 (1957), where California case law is reviewed. Here
again the mistake inured to the benefit of the defense.
(C) Safety regulations of the F.A.A. are regarded by most courts as authoritative and
impartial criteria for judging the conduct of persons covered by those regulations. Roberts v.
Trans-World Air Lines, 225 Cal.App. 2d 344, 37 Cal.Rptr. 291 (1964); Moody v. McDaniel,
N.D.Miss., 190 F.Supp. 24 (1960); Citrola v. Eastern Air Lines, 264 F.2d 815 (2d Cir. 1959);
Pappas v. Pieper, 325 S.W.2d 789, 75 A.L.R.2d 850 (Mo. 1959); Lange v. Nelson-Ryan
Flight Service, Inc., 259 Minn. 460, 108 N.W.2d 428 (1961); United States v. Miller, 303
F.2d 703, (9th Cir. 1962). With this in mind the following instruction was given, If you find
that the regulations of the Federal Aviation Agency provided that a particular course of
action was either permitted or prohibited under the circumstances and conditions of flight
involved in this case, then such regulations are your guide in determining whether the
fact that such maneuvers were performed was negligence or non-negligence."
of the Federal Aviation Agency provided that a particular course of action was either
permitted or prohibited under the circumstances and conditions of flight involved in this case,
then such regulations are your guide in determining whether the fact that such maneuvers
were performed was negligence or non-negligence. Pertinent F.A.A. regulations were then
given as separate instructions. Stock instructions about negligence were also given.
It is settled law in California that compliance with administrative regulation is evidence
for the fact finder and does not alone absolve a defendant from liability. Compliance is a fact
which the jury may weigh in deciding the issue of due care. Roberts v. Trans-World Air
Lines, supra. Because of this California prefers that the jury be advised that a defendant is not
necessarily free from negligence even though he may have complied with safety rules.
Dragash v. Western Pacific Ry. Co., 161 Cal.App. 2d 233, 326 P.2d 649 (1958). The
circumstances of a particular accident may require more of a pilot than compliance with
applicable regulations. The jury was not so advised in the instant case. Absent such advice,
the quoted instruction appears to contravene California law. We note again that the error
favored the defense.
(D) Small aircraft are generally equipped with dual controls. It is possible to control the
aircraft either from the standard pilot's seat on the left-hand side, or from the seat on the right.
Gordon's Cessna was so equipped. When such an aircraft crashes, killing all occupants, it is
sometimes impossible to know whether the plane was being controlled from the left-hand seat
or the righthand seat.
Here there was evidence from which the jury could believe that the final flight maneuver
before the crash was a radical maneuver and not consistent with the intended flight pattern of
the pilot. The court was persuaded by the defense to give the following instruction,
Whenever an airplane with dual controls crashes leaving no survivors a question arises as to
which of the two persons with equal access to the flight controls was actually controlling
the aircraft at the time of the crash.
two persons with equal access to the flight controls was actually controlling the aircraft at the
time of the crash.
If you find from the evidence that the aircraft was under the control of some person
during the final flight maneuver which resulted in the crash and that the final flight maneuver,
even though negligently performed, was consistent with the intended flight pattern of the pilot
then you may infer that the one most likely to be flying was the person piloting the aircraft at
the time of the accident.
If, however, you find the final flight maneuver was a radical maneuver and was not
consistent with the intended flight pattern of the pilot then you may not make any inference
that the airplane was under the control of a particular person at the time of the accident.
In our view the instruction was improper in the context of this case. None of the cases
discussing dual controls involves the propriety of instructing the jury on the point. It is true
that some of the earlier opinions employed language similar to that used in the quoted
instruction. Budgett v. Soo Sky Ways, Inc., 64 S.D. 243, 266 N.W. 253 (1936); In re Estate of
Hayden, 174 Kan. 140, 254 P.2d 813 (1953); Morrison v. Le Tourneau, 138 F.2d 339 (5th
Cir. 1943); Towle v. Phillips, 180 Tenn. 121, 172 S.W.2d 806 (1943); Hall v. Payne, 189 Va.
140, 52 S.E.2d 76 (1949). The discussion, however, usually is referable to non-applicability
of the doctrine of res ipsa loquitur to an aircraft crash case. The fact of dual controls is
fastened upon to destroy the exclusive control requirement of res ipsa. Here the claimants did
not rely upon res ipsa loquitur in pressing their charge of negligence. Furthermore, recent
decisions disapprove strict adherence to the exclusive control element of res ipsa in an
aircraft case. The defendant is required to come forward with some showing that another
party may have been controlling the aircraft at the time of the crash. Boise Payette Lumber
Co. v. Larsen, 214 F.2d 373, 46 A.L.R.2d 1038 (1954); Schumacher v. Swartz, Pa. Com.
Pleas, C.C.H. 2 Avi. 18,006 (1948); Drahmann's Administratrix v. Brink's Administratrix,
290 S.W.2d 449 {Ky.
S.W.2d 449 (Ky. 1956). All three of these cases permitted jury consideration of control, and
appear to remove the res ipsa blockage. See also note, 11 Univ. of Fla.L.Rev. 351. The cases
appear to ignore the significance of any radical maneuver just before the crash. The original
pilot continues in command, unless proven otherwise, and a so-called radical maneuver is
immaterial in ascertaining pilot identity. The need for this point of view is exemplified by the
evidence in this case. Gordon was the only occupant of the airplane licensed to fly. He was
the pilot at takeoff. His voice was identified as the voice in communication with the
Controller at the Los Angeles Airport. Four bodies were recovered from the burned aircraft,
unidentifiable except for unburned portions of clothing and cards which placed Gordon in the
left front seatthe seat usually occupied by the pilot. In these circumstances, a jury
instruction directing the jurors that they may not make any inference that the airplane was
under the control of a particular person at the time of the accident if the final flight
maneuver was a radical maneuver, is manifestly wrong and defies common sense.
The instruction possesses another vicethat of focusing the jury's attention upon pilot
identity just before the crash and when the so-called radical maneuver occurred. The
claimants contended throughout that pilot negligence preceded this event and lay mainly in
the failure of Gordon to properly evaluate the hazards created by the weather at the airport.
We regard the dual control instruction as plain error.
2. As this case must be remanded for another trial, we mention one further point
concerning which we do not agree with Judge Wines. The appellants claim that it was
prejudicial error for the trial court to reject a C.A.B. accident report stating there was no
evidence of any equipment malfunction before the crash. We think that the trial court ruled
correctly. Objection was timely made and upon the proper groundthat this particular part of
the report was the opinion of the investigator.
Federal law prohibits investigators of the C.A.B. from expressing expert opinions in civil
litigation.
expressing expert opinions in civil litigation. Civil Aeronautics Act, 49 U.S.C. 1301-1542
(Supp. 1962), specifically 1441(e). It reads, No part of any report or reports of the Board
relating to any accident or the investigation thereof, shall be admitted as evidence or used in
any suit or action for damages growing out of any matter mentioned in such report or
reports.
As noted in Berguido v. Eastern Air Lines, 317 F.2d 628, (3d Cir. 1963), judicial
interpretation of 1441(e) has not been too extensive or precise. The court there wrote, The
fundamental policy underlying 1441(e) appears to be a compromise between the interests of
those who would adopt a policy of absolute privilege in order to secure full and frank
discussion as to the probable cause and thus help prevent future accidents and the
countervailing policy of making available all accident information to litigants in a civil suit.
Accordingly, the primary thrust of the provision is to exclude C.A.B. reports which express
agency views as to the probable cause of the accident. Of necessity, the opinion testimony of
the C.A.B.'s investigators would also come within this rule. Here the portion of the C.A.B.
report to which objection was made is the statement of the investigator that there was no
evidence of equipment malfunction. We think that the statement is more nearly an opinion
than a statement of fact, and barred by the act. Fidelity & Casualty Co. of New York v. Frank,
227 F.Supp. 948 (1964). In Fidelity a similar problem was presented. The court excluded the
evidence, stating, A more workable and better rule is entirely to exclude all evaluation,
opinion and conclusion evidence. This is the only practical way to give adequate effect to and
fulfill the purpose of the provisions of Sec. 1441(e). See also Israel v. United States, 247
F.2d 426 (2d Cir. 1957).
____________
81 Nev. 587, 587 (1965) State v. Busscher
THE STATE OF NEVADA, Appellant, v.
HARRY A. BUSSCHER, Respondent.
No. 4866
November 12, 1965 407 P.2d 715
Appeal from judgment of the Second Judicial District Court, Washoe County; David
Zenoff, Judge.
Defendant was convicted of suborning perjury, and he applied for a new trial before
judgment was entered and sentence was pronounced. The trial court entered an order granting
the defendant a new trial on ground that entrapment was established as a matter of law, and
the State of Nevada appealed. The Supreme Court, Thompson, J., held that question whether
there was entrapment was for the jury.
Reversed.
and Herbert F. Ahlswede, Chief Criminal Deputy, of Reno, for Appellant.
Bradley & Drendel, of Reno, for Respondent.
1. Criminal Law.
Order for new trial on ground that verdict is contrary to law presents question of law that is within
jurisdiction of Supreme Court to review, but order for new trial because verdict is contrary to evidence
involves evaluation of evidence, its weight, credibility of witnesses, and the like, and effectively precludes
intervention of Supreme Court on appeal. NRS 175.535, subd. 6; Const. art. 6, 4.
2. Criminal Law.
Where trial court, in ordering new trial in prosecution for suborning perjury, made clear its view that no
crime had been committed because entrapment was established as a matter of law, question whether trial
court was correct in so ruling presented question of law within jurisdiction of Supreme Court to review.
NRS 175.535, subd. 6, 175.540.
3. Criminal Law.
It is permissible to employ decoy who, for purpose of detecting public offense, furnishes opportunity for
commission of crime by one possessing requisite criminal intent, and thus, if criminal intent originates in
mind of defendant, without urging or persuasion by decoy. entrapment does not exist.
4. Criminal Law.
Question whether there was entrapment was for jury in prosecution for suborning perjury, and District
Court erred in granting new trial on ground that defense of entrapment was established as matter of law.
NRS 175.540, 199.120.
OPINION
A jury found Busscher guilty of suborning perjury. In accordance with NRS 175.540 he
applied for a new trial, before judgment was entered and sentence pronounced. The district
court granted his motion, stating that the evidence shows the defense of entrapment to have
been affirmatively and positively proved. We take that language to mean that entrapment
was established as a matter of law. For the reasons hereafter expressed, we hold that the
record shows, as a matter of law, that the defense of entrapment was not established.
Accordingly, we reverse the order for a new trial and reinstate the jury verdict.
[Headnote 1]
1. The grounds for another trial of a criminal case are designated by NRS 175.535. Here
the defendant Busscher sought a new trial under subdivision 6 of that statutewhen the
verdict is contrary to law or evidence. Whenever a new trial is granted upon that ground, our
initial task is to ascertain precisely what the lower court had in mind; whether it ruled as it did
because the verdict was contrary to law, or whether it believed that the verdict was
contrary to evidence. A ruling based upon the ground that the verdict is contrary to law
presents a question of law that is within our jurisdiction to review. On the other hand, an
order for another trial made because the verdict is contrary to evidence involves an evaluation
of the evidence, its weight, the credibility of witnesses and the like, and effectively precludes
our intervention on appeal. We are constitutionally precluded from overturning the order for
another trial when this ground is the basis of the trial court's ruling.
the basis of the trial court's ruling. Nev. Const., art. 6, 4.
Historically, Nevada has empowered the trial court in a criminal case where the evidence
of guilt is conflicting, to independently evaluate the evidence and order another trial if it does
not agree with the jury's conclusion that the defendant has been proven guilty beyond a
reasonable doubt. State v. Van Winkle, 6 Nev. 340; State v. Jones, 7 Nev. 408; State v. Mills,
12 Nev. 403; State v. Bauer, 34 Nev. 305, 122 P. 76. In this limited situation, the jury and the
court must be convinced of the defendant's guilt. If the court is not convinced, it may protect
the defendant to the extent of authorizing another trial before another jury. It is apparent that,
when another trial is ordered for the reason that the verdict is contrary to evidence, the
decisional process necessarily involves a resolution of conflicting issues of factthe trial
court has simply preferred its evaluation of the conflicting evidence to that of the juryand
we may not, in such case, touch the trial court's ruling. This, among other matters, is what the
writers of our Constitution had in mind when they limited our appellate jurisdiction in
criminal cases to questions of law alone.
The opposite is true when the reason for another trial is that the verdict is contrary to law.
In general terms, this means that the evidence presented is insufficient as a matter of law to
sustain a verdict of guilty. This ground normally is not available when the evidence is in
conflict as to material facts. Where, however, the evidence is uncontroverted, the lower court
in considering a motion for new trial, and this court on review, may decide whether such
uncontroverted evidence, as a matter of law, does or does not show the commission of a
crime. In this instance, the process of weighing evidence and resolving disputed questions of
fact is not involved.
[Headnote 2]
The record of this case does not present a conflict in the evidence. What occurred is not
denied. The defendant Busscher chose not to testify, nor was any evidence offered on his
behalf.
offered on his behalf. In ordering a new trial, the lower court made clear its view that a crime
had not been committed because entrapment was established as a matter of law. Whether that
court was correct in so ruling, presents a question of law within our jurisdiction to review.
[Headnote 3]
2. The law of entrapment has been carefully defined in Nevada by a series of decisions. In
re Davidson, 64 Nev. 514, 186 P.2d 354; In re Wright, 68 Nev. 324, 232 P.2d 398; Wyatt v.
State, 77 Nev. 490, 367 P.2d 104; Adams v. State, 81 Nev. 524, 407 P.2d 169. It is
permissible to employ a decoy who, for the purpose of detecting a public offense, furnishes
an opportunity for the commission of crime by one possessing the requisite criminal intent. In
re Wright supra; Wyatt v. State, supra. Thus, if the criminal intent originates in the mind of
the defendant, without urging or persuasion by the decoy, entrapment does not exist. Sorrels
v. United States, 287 U.S. 435, relied upon by Busscher, does not suggest a different rule.
Each case necessarily involves a close analysis of the evidence.
[Headnote 4]
We have carefully studied the record here. As noted, the defendant Busscher did not
testify, and all relevant evidence offered by the state stands unrefuted. As we see it,
entrapment was not established as a matter of law. Indeed, had an instruction on that doctrine
been refused, we could not find error. Wyatt v. State, supra. All of the evidence shows that an
employed decoy supplied an opportunity to Busscher to suborn perjury, and that Busscher
willingly and intentionally did so.
The Washoe County District Attorney's office, prompted by information from the United
States Department of Immigration, employed Ben Wood to contact Busscher, pretending that
he (Wood) wished to obtain a Nevada divorce. Wood was a police officer of Oakland,
California. Before departing for Reno, and with the consent of the bank manager, Wood
opened a checking account with a branch of the Bank of America at Oakland, using the
fictitious name of Ben Askew.
He also arranged covering employment with a department store of that city. On the morning
of January 8, 1964, Wood, identifying himself as Ben Askew, telephoned Busscher's office
for an appointment and was told by the secretary to come in at 11:00 a.m. He did so, and
shortly thereafter was introduced to Busscher. He advised Busscher that he wanted a divorce,
and that Busscher had been recommended to him by several people in Oakland. The usual
matters were discussed. As to the legal residence requirement the record shows: Wood: (A.)
He asked was I familiar with the rules and regulations pertaining to divorce in the State of
Nevada, and I told him no, I wasn't too clear about it at all, I needed information from him as
to just what the procedure would be. Q. All right, then what did he say? A. Well, he said that
it would require six weeks residence, and I said, Oh, gosh. Well,' I said, I don't know how in
the world I am going to work that out. I can't get away from the job long enough.' And he
replied that, Well, we will take care of that later.' During that office conference Busscher
quoted the cost for the divorce to be approximately $247. Wood gave him a check for $50 on
account. Before leaving, the matter of residence was again discussed, Wood once more
stating that he did not know how he could stay in Nevada six weeks. To this, Busscher replied
that it could be worked out, he was going to give me a name and address of a person to see
and I was to contact this person. Whatever conversation that person and I had was
strictlywould be between me and that person. He said he didn't want to know anything
about it, but after I made the contact with this person I was to call him back and let him know
if the contact had been made; and he then proceeded to write on the back of a card the name
of the person I was to contact and the address. Busscher then advised the decoy that he
would have to be back for a court appearance on February 20, and wrote that date on a card
and gave it to him.
Wood then left Busschers's office and tried to locate Kiah Lumpkins, whose name and
address Busscher had written on the card. He could not be found. About 4:30 p.m.
p.m. Wood telephoned Busscher's office and advised Busscher that he was not able to find
Kiah Lumpkins and that he (Wood) had to leave town that evening. Busscher said, Well, try
another location, and gave Wood the location of Henry's Hickory Pit at the corner of Lake
Street and Commercial Row, suggesting that Wood ask for Henry Lumpkins, Kiah's brother,
who would deal with Wood on the same basis. Busscher also asked Wood to call him back
after he had contacted Henry Lumpkins.
Wood proceeded directly to Henry's Hickory Pit. A man rose from his chair, approached
Wood, and introduced himself as Henry Lumpkins. During their conversation Wood did not
ask Lumpkins to be his resident witness in the divorce case to be filed, nor did he suggest that
false testimony be offered by Lumpkins. Following this meeting, Wood telephoned Busscher,
advising that contact had been made with Henry Lumpkins. Busscher told Wood to be in
Reno on the morning of February 20.
Wood returned to Oakland, California. On or about February 18 he wrote Busscher from
Oakland, advising that he could not get off work on February 20, and inquired if February 24
would be suitable. On February 20 he telephoned Busscher from Oakland, asked if Busscher
had received his letter, and was informed by Busscher that he had. February 24 was
tentatively agreed upon as the day for going to court. On February 24 Wood again telephoned
Busscher from Oakland and asked a postponement as he could not obtain his employer's
permission to be away on that day. The date of February 28 was then selected.
On February 27 Wood came to Reno. He conferred with the investigative staff of the
district attorney's office. He had kept them continually advised throughout. On the morning of
February 28 he went to Busscher's office. The relevant part of Wood's undenied testimony
about his conference with Busscher that morning follows: Q. All right, after the defendant
came into the office, what then happened? A. Another two or three minutes passed and then I
was told toAttorney Busscher was ready to see me, and I proceeded back to his office, and
after entering his office I stated the point, and he stated, 'Good morning,' and he then
asked me where was my resident witness, and I replied that I didn't know, and he
appeared angry, and I stated that I didn't know what I was supposed to do, I was a little
confused, and he says, 'You are supposed to have a resident witness, someone who has
seen you every day,' and he says, 'Who is your resident witness?' And I replied, 'Well, Mr
Lumpkins.' And he says, 'Why isn't he here?' I said, 'Well, I don't know, I mean, what
should I do, should I try to call him from here or just what should I do?' And he replied
that he would have his secretary get him on the phone.
to his office, and after entering his office I stated the point, and he stated, Good morning,'
and he then asked me where was my resident witness, and I replied that I didn't know, and he
appeared angry, and I stated that I didn't know what I was supposed to do, I was a little
confused, and he says, You are supposed to have a resident witness, someone who has seen
you every day,' and he says, Who is your resident witness?' And I replied, Well, Mr
Lumpkins.' And he says, Why isn't he here?' I said, Well, I don't know, I mean, what should
I do, should I try to call him from here or just what should I do?' And he replied that he would
have his secretary get him on the phone. So he picked up his phone and told the secretary,
says, Get Henry on the phone,' and with that he placed the receiver back. And then he replied
that he was very angry because of my behavior in the matter, because it appeared as though I
was trying to get him disbarred. He said I had called him from down there, and heI hadn't
followed instructions, or something to that effect, and I was overlooking the fact that he was
just trying to do me a favor.
And by this time I believe the phone rang, the buzzer rang, and he picked up the phone
and apparently the secretary had made the connection because he referred to Henry, and said
that Ben Askew was going today, Can you be down here? We have to go at 9:30.' And then
he hung up the phone. And then he replied to me that Henry had worked all night and had
gotten in bed at 5:30, and it would be a little difficult for him to make a real hasty appearance
but he would be there in time for us to appear in court, and his next move was to say, Well, I
see you have signed the papers, I guess I better get these papers together,' and then with that
he pulled out the papers, and he proceeded to write something on the papers. Then he stated
that he was going to go through the testimony, we may as well get that straightened out right
now, * * * . He stated that we had very little time, and therefore we'd go through the
testimony once, and I better get it and picked up on it the first time, and so he proceeded to
ask questions. He says, Where do you live?' And I stated, 1310 Burnett Street, Berkeley.'
And he says, That would really do it.' He said, 'They'd throw us right out of court, no
divorce,' and he stated again, 'Where do you live?' And I faltered andbecause I
temporarily couldn't rememberand I says, 'I don't remember the address you gave me.'
And he replied, '533 Second Street, Reno,' and then I repeated, '533 Second Street.' And
he says, 'Now get that right.' And I said, 'Yes, sir.' And he said, 'How long have you
resided in the state?' And I stated, 'From the 7th of January, '64, to the present time.' And
then he asked about the reasons for the divorce, 'Why do you want a divorce?'"
said, They'd throw us right out of court, no divorce,' and he stated again, Where do you
live?' And I faltered andbecause I temporarily couldn't rememberand I says, I don't
remember the address you gave me.' And he replied, 533 Second Street, Reno,' and then I
repeated, 533 Second Street.' And he says, Now get that right.' And I said, Yes, sir.' And he
said, How long have you resided in the state?' And I stated, From the 7th of January, 64, to
the present time.' And then he asked about the reasons for the divorce, Why do you want a
divorce?'
Wood made out a check to Busscher for $197, the balance owing, took a receipt therefor,
and left to meet Busscher at the courthouse a few minutes later.
The assistant district attorney had already alerted each judge of the Second Judicial
District Court that he expected a divorce action, Askew v. Askew, to be filed by attorney
Busscher, and that perjury might occur. He also notified Judge Barrett, in whose court the
matter later came on for hearing, that he (the assistant district attorney) might request
permission to approach the bench during the Askew trial. At 9:50 a.m., February 28, 1964,
Askew v. Askew came on for hearing. Henry Lumpkins was sworn and testified as the
resident witness for Ben Askew. He stated that he first met Askew on January 7, 1964, at
Henry's Corner, Reno; that Askew resided at 533 East Second Street, Reno, from January 7,
1964, to the present time and that he had seen Askew every day. Following Lumpkins'
testimony, Judge Barrett recessed court, and law officers arrested Lumpkins and Busscher on
the spot. Busscher's file concerning the case was contemporaneously seized. Lumpkins was
subsequently charged with perjury and Busscher with subornation of perjury.
It was the state's position below, and here, that Busscher arranged for and placed Henry
Lumpkins on the witness stand, knowing that Lumpkins would give false testimony about the
residence of Ben Askew (Wood), in violation of NRS 199.120. The state further argues that
the record is barren of any evidence tending to show that the required intent to suborn perjury
originated other than in the mind of Busscher. Our attention is directed to the fact that
Wood did not request Lumpkins to testify, nor did he request either Lumpkins or Busscher
to arrange a fabricated residence.
is directed to the fact that Wood did not request Lumpkins to testify, nor did he request either
Lumpkins or Busscher to arrange a fabricated residence. He merely offered to each of them
an opportunity to do so, and each carried forward from there. The record supports the state's
position.
Of course it is true that the scheme to afford Busscher an opportunity to commit crime was
conceived and executed with care and was itself blemished by much deceit. However, this
does not inure to Busscher's benefit. Deception may be permissible when done by one acting
in good faith, with the purpose of detecting crime. In re Davidson, 64 Nev. 514, 186 P.2d
354. There is no suggestion of bad faith or unlawful purpose here.
For the reasons expressed, the order of the lower court granting a new trial is reversed, the
jury verdict reinstated with direction to enter judgment thereon and pronounce sentence.
Badt, J., and Breen, D. J., concur.
____________
81 Nev. 595, 595 (1965) Green v. State
WILLIAM McKINLEY GREEN, Appellant, v.
No. 4971
November 12, 1965 407 P.2d 719
Judge.
Defendant was found guilty of robbery and from an order of the lower court, denying his
motion for new trial, defendant appealed. The Supreme Court, Thompson, J., held, inter alia,
that since trial judge in denying motion for new trial made by defendant after reversal of prior
order granting defendant a new trial disclosed that new trial was originally granted on ground
that verdict was contrary to the evidence and that trial judge still believed that verdict was
contrary to the evidence but that he was precluded from granting another trial by action of
reviewing court, on motion for rehearing after reversal of order granting a new trial, in
erroneously making independent search of the record and concluding that the verdict was
supported by the law and evidence, order denying second motion for new trial should be
reversed and another trial granted.
81 Nev. 595, 596 (1965) Green v. State
reversal of order granting a new trial, in erroneously making independent search of the record
and concluding that the verdict was supported by the law and evidence, order denying second
motion for new trial should be reversed and another trial granted.
J. Forest Cahlan and Rex A. Jemison, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Edward G. Marshall, District Attorney, Earl
Gripentrog and Ivan R. Ashleman, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Defendant could present to trial court another motion for new trial after reversal of order granting a new
trial and remand, where judgment had not yet been entered on verdict of guilty and second motion was
presented in good faith without thought of harassment or delay. NRS 175.535.
2. Criminal Law.
Where record on appeal from order granting defendant a new trial indicated that trial court had not ruled
on statutory ground urged by defendant that verdict was contrary to law or evidence, reviewing court
should have requested trial court to express itself on such ground for new trial and it was error prejudicial
to defendant for reviewing court, on motion for rehearing after reversal of order granting new trial, to make
independent search of record to ascertain whether there was evidence to support verdict. NRS 175.535.
3. Criminal Law.
Where trial judge in denying motion for new trial made by defendant after reversal of prior order granting
him a new trial disclosed that new trial was originally granted because, and that he still believed, verdict
was contrary to evidence but was precluded from granting second motion on such ground by action of
reviewing court, on motion for rehearing, in independently reviewing record and concluding that verdict
was supported by the law and evidence, order denying second motion for new trial would be reversed and
another trial granted. NRS 175.535.
4. Criminal Law.
Order granting defendant a new trial on ground that verdict of guilty is contrary to the evidence may not
be disturbed on appeal. NRS 175.535.
Where defendant was represented by court-appointed counsel on successful appeal from order denying
his motion for new trial, trial court would be directed to give counsel certificate required
by statute for payment of compensation for his services and expenses incurred.
81 Nev. 595, 597 (1965) Green v. State
trial, trial court would be directed to give counsel certificate required by statute for payment of
compensation for his services and expenses incurred. NRS 7.260, subds. 3, 4.
OPINION
The genesis of this appeal is an error made by the writer of this opinion in preparing the
order denying rehearing of the first appeal of this case. In the interests of justice we hasten to
correct that mistake.
The appellant Green was found guilty of robbery following a jury trial in the district court
at Las Vegas, Nevada. Evidence of guilt was conflicting. Green had never before been
arrested. He was identified by the victim as one of the two robbers who had perpetrated the
crime. Green testified and denied commission of the offense. The jury apparently believed the
victim and found Green guilty. Before judgment and sentence, and in accordance with NRS
175.535, he moved for a new trial. One of the grounds urged was that the verdict was
contrary to law or evidence. The lower court granted a new trial, but failed to specify any
statutory reason. An appeal by the state followed, and we reversed the lower court's grant of a
new trial. State v. Green, 81 Nev. 173, 400 P.2d 766. In that opinion we did not consider the
mentioned ground for a new trial because the record before us at that time did not indicate
that the lower court had granted a new trial on that ground. Green sought a rehearing. We
denied rehearing, stating, inter alia: Here, the lower court did not rule on one of the statutory
grounds for a new trial, viz, that the verdict is contrary to law or evidence.' The evidence as
to guilt was conflicting. * * * However, we have independently reviewed the record and
conclude that the verdict is supported by the law and evidence.
[Headnote 1]
Following remand, Green presented a second motion for a new trial to the district court. It
was permissible for him to do so, as judgment had not yet been entered on the jury
verdict, and the motion was obviously tendered in good faith, without thought of
harassment or delay.
81 Nev. 595, 598 (1965) Green v. State
for him to do so, as judgment had not yet been entered on the jury verdict, and the motion was
obviously tendered in good faith, without thought of harassment or delay. The trial judge
denied this motion. However, in doing so he made it clear that (a) he had originally ordered a
new trial because he believed that the verdict was contrary to evidence; (b) that he still
believed the verdict wrong and contrary to the evidence; and (c) that he would grant the
second motion for a new trial but for our preclusive language in the order denying rehearing
that we have independently reviewed the record and conclude that the verdict is supported
by the law and evidence. With justification the district judge considered that language to be
the law of the case and to forbid his ordering another trial, though he wished to do so.
[Headnote 2]
In the circumstances here presented, it was inappropriate for this court, on rehearing, to
make an independent search of the record to ascertain whether there was evidence to support
the jury verdict. The proper course would have been to request the lower court to express
itself on that ground for new trial, as it was one of the grounds urged by the defendant. In
failing to do so we erred.
[Headnotes 3, 4]
The prejudice to the defendant Green, flowing from our error, is manifest. Had the lower
court been requested to express itself, we would have learned that its true reason for ordering
another trial was its belief that the jury should have preferred the evidence offered by the
defense rather than that presented by the prosecution. In such event we would have been
powerless to disturb the lower court's ruling. State v. Busscher, 81 Nev. 587, 407 P.2d 715
(dictum). We now know why the trial court ordered another trial. Our late acquisition of
knowledge should not inure to the defendant's prejudice. Accordingly we order that the
defendant be granted another trial. We reverse the order of the trial court which was entered
solely because of our error in ruling on the defendant's petition for rehearing following
the first appeal.
81 Nev. 595, 599 (1965) Green v. State
which was entered solely because of our error in ruling on the defendant's petition for
rehearing following the first appeal.
[Headnote 5]
As Green was represented by court appointed counsel, we direct the lower court to give
counsel the certificate specified in NRS 7.260(3) (4).
_____________
81 Nev. 599, 599 (1965) Bliss v. DePrang
ELIZABETH CARPENTER BLISS, Appellant, v. PERCY O. DePRANG, Doing Business as
DAY-NITE LAUNDER CENTER NO. 214, and RENO ENTERPRISES, INC., a Nevada
Corporation, Respondents.
No. 4899
November 16, 1965 407 P.2d 726
Appeal from verdict and judgment for defendants in a slip and fall personal in jury
action; Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Action against parking lot owners and against owners of adjacent business for personal
injuries sustained in fall on parking lot. The trial court denied plaintiff's motion for directed
verdict and entered judgment on verdict for defendants. The plaintiff appealed. The Supreme
Court, Zenoff, D. J., held that where evidence was conflicting as to whether parking lot upon
which plaintiff fell was in defective and icy condition at time of accident, trial court properly
denied motion for directed verdict.
Affirmed.
Nada Novakovich, of Reno, for Appellant.
Richard P. Wait and Roger L. Erickson, of Reno, for Respondents.
1. Trial.
Motion for directed verdict enables court to determine whether there is any question of fact to be
submitted to jury and whether any verdict other than one directed would be erroneous as matter of law.
NRCP 50(a).
2. Trial.
When motion for directed verdict is presented, trial court must view evidence and all inferences most
favorably to party against whom motion is made.
On reviewing of granting or denial of motion for directed verdict, Supreme Court must view evidence
and all inferences most favorably to party against whom motion is made. NRCP 50(a).
4. Trial.
Credibility of witnesses and weight of evidence are not before court on motion for directed verdict.
NRCP 50(a).
5. Trial.
Where there is testimony that is conflicting on material issues, court should not direct verdict, and even
where trial court would be obliged to set aside verdict as against weight of evidence it is powerless to direct
verdict if there is substantial evidence for party against whom motion is made. NRCP 50(a).
6. Trial.
Directed verdict is proper only in those instances where evidence is so overwhelming for one party that
any other verdict would be contrary to law. NRCP 50(a).
7. Trial.
In considering motion for directed verdict, if facts are disputed or if reasonable men could draw different
inferences from facts, jury question is presented. NRCP 50(a).
8. Negligence.
Evidence was conflicting as to whether defendant's parking lot upon which plaintiff fell was in defective
and icy condition at time of accident, and trial court properly denied plaintiff's motion for directed verdict.
NRCP 50(a).
9. Evidence.
Photographs of parking lot taken about two years after plaintiff suffered injuries in fall on lot were
admissible in action against owners of lot and of adjoining business establishment for limited purpose of
showing location and area where accident happened, although not to show particular conditions existing at
time plaintiff sustained her injuries, and admission for such purpose was not error where court over
objection advised jury as to limited purpose.
OPINION
This is an appeal from a judgment in a personal injury suit in which the jury returned a
verdict for the defendants.
suit in which the jury returned a verdict for the defendants. Appellant assigns as error the
denial by the court of a motion for a directed verdict and the introduction into evidence of
certain photographs taken of the scene of the accident.
On April 20, 1963, about 7:30 a.m., appellant arrived at the Day-Nite Launder Center,
parked her car, and went into the laundromat to do her washing. When this was completed,
she proceeded back to her car, placed the laundry in the front seat and walked around the back
of the automobile to get into the driver's seat.
At this point, she slipped and fell, sustaining injuries to her left arm and knee for which
she claims damages for medical expenses and pain and suffering. The basis of her contention
was that the respondents, owners of the parking lot and operators of the laundromat, were
negligent in allowing a depression to exist in the parking lot; that the depression caused water
to gather which turned to ice, that the ice caused her to fall by reason of which she sustained
the aforementioned injuries.
[Headnote 1]
1. At the conclusion of the evidence by both parties, appellant moved for a directed
verdict, pursuant to Rule 50 (a) of the Nevada Rules of Civil Procedure, which provides for a
motion for a directed verdict at the close of the evidence and before the case is submitted to
the jury. It enables the court to determine whether there is any question of fact to be submitted
to the jury, and whether any verdict other than the one directed, would be erroneous as a
matter of law. 2B Barron and Holtzoff, Fed. Prac. & Procedure, Sec. 1071, at 364.
[Headnotes 2-4]
When such a motion is presented, the trial court must view the evidence and all inferences
most favorably to the party against whom the motion is made. On review, this court must
apply the same standard. Wisconsin Liquor Co. v. Park & Tilford Distillers Corp., 267 F.2d
928 (7th Cir. 1959); 2B Barron and Holtzoff, Fed. Prac. & Procedure, Sec. 1075, at 378. The
credibility of witnesses and the weight of evidence are not before the court on a motion for a
directed verdict.
court on a motion for a directed verdict. Schnee v. Southern Pac. Co. 186 F.2d 745 (9th Cir.
1951); Sano v. Pennsylvania R. Co., 282 F.2d 936 (3rd Cir. 1960).
[Headnotes 5, 6]
In brief, where there is testimony that is conflicting on material issues, the court should not
direct a verdict. Even where the trial court would feel obliged to set aside a verdict as against
the weight of the evidence, it is powerless to direct a verdict if there is substantial evidence
for the party against whom the motion is made. A directed verdict is proper only in those
instances where the evidence is so overwhelming for one party that any other verdict would
be contrary to the law. Greene v. Werven, 275 F.2d 134 (8th Cir. 1960).
[Headnote 7]
We must resolve, therefore, whether appellant has shown that there is insufficient evidence
for permitting any other finding than that respondents were negligent. If the facts are disputed
or if reasonable men could draw different inferences from the facts, the question is one of fact
for the jury and not one of law for the court. See Troop v. Young, 75 Nev. 434, 345 P.2d 226
(1959); Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65 (1915).
[Headnote 8]
Plaintiff testified that the parking lot was in a defective and icy condition the day of the
accident, that there were shallow depressions in the parking lot which filled with water that
turned to ice causing her to fall. Respondents countered with uncontradicted evidence that
there were slight depressions in the pavement of the parking lot of about one quarter of an
inch, but that the wavy surface was standard and not unusual. They also presented expert
testimony to the effect that they were unaware of any process which could improve the
condition of the parking lot as it then existed, and that it had been designed properly
originally.
There was conflict in the testimony as to the snow conditions on the day of the
accidentappellant testifying the lot was void of snow and respondent that there was slush
and snow covering the entire lot.
Appellant thus failed to fulfill her burden as to the crucial facts by producing evidence that
was clear, uncontradicted, self-consistent, and unimpeached. 2B Barron and Holtzoff, Fed.
Prac. & Procedure, Sec. 1074.1, at 374. The trial court properly denied the motion for a
directed verdict.
1

[Headnote 9]
2. Respondents introduced into evidence photographs of the parking lot, taken about two
years after the accident. They were offered for the limited purpose of showing the location
and area where the accident happened, and not to show the particular conditions existing at
the time appellant sustained her injuries. Over objection, the trial court accepted the
photographs for this limited purpose and so advised the jury. Under these circumstances, the
trial court did not err. Adams v. City of San Jose, 164 Cal.App.2d 665, 330 P.2d 840 (1958).
Affirmed.
____________________

1
Had the evidence about the defendants' negligence been uncontroverted, our ruling would be the same
because the affirmative defense of contributory negligence was pleaded, and the jury could permissibly have
inferred that the plaintiff's fall was caused by the lack of ordinary care for her own safety in failing to observe the
depression.
____________
81 Nev. 603, 603 (1965) Roventini v. District Court
PHIL ROVENTINI, Individually and Doing Business Under the Firm Name and Style of
STATE MOTORS, Petitioner, v. THE FIRST JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, THE HONORABLE FRANK B. GREGORY, District Judge,
Respondent.
No. 4990
November 16, 1965 407 P.2d 725
Original proceeding in mandamus.
Proceeding to compel district court to set aside clerk's entry of default in tort action. The
Supreme Court, Thompson, J., held that defendant's motion in district court to set aside
clerk's entry of default called for exercise of district court's discretion and was not subject
to review by mandamus.
Thompson, J., held that defendant's motion in district court to set aside clerk's entry of default
called for exercise of district court's discretion and was not subject to review by mandamus.
Writ denied and petition dismissed.
Richard P. Wait and Roger L. Erickson, of Reno, for Petitioner.
Peter Echeverria and Alfred H. Osborne, of Reno, for Respondent.
1. Mandamus.
Mandamus does not lie to compel permissible exercise of discretion by court. NRS 34.160, 34.170.
2. Judgment.
District court is not without discretion in ruling upon motion to vacate clerk's entry of default and need
not mechanically grant motion. NRCP 55(c).
3. Mandamus.
District court's refusal to set aside entry of default did not preclude plain, speedy and adequate relief by
appeal if default judgment were thereafter entered, within statute pertaining to issuance of mandamus.
NRS 34.160, 34.170.
4. Mandamus.
Defendant's motion to set aside clerk's entry of default in tort action for damages called for exercise of
district court's discretion and was not subject to review by mandamus. NRS 34.160, 34.170.
OPINION
This is an original proceeding in mandamus by which the petitioner, Roventini, seeks to
compel the District Court to set aside a clerk's entry of default in a tort action for damages.
We rule that the extraordinary remedy of mandamus is not here available and refuse to issue
the writ.
1
[Headnotes 1-3]

____________________

1
Roventini sought either mandamus, certiorari, or prohibition. However, during oral argument he selected
mandamus. Accordingly, we limit our discussion to that writ, though we think the others equally inappropriate.
[Headnotes 1-3]
A writ of mandamus may issue to compel the performance of an act which the law
especially enjoins as a duty resulting from office, if there is not a plain, speedy, and adequate
remedy in the ordinary course of law. NRS 34.160-34.170. The permissible exercise of
discretion by a court does not fall within the statutory words, the performance of an act
which the law especially enjoins as a duty resulting from office. Wilmurth v. District Court,
80 Nev. 337, 393 P.2d 302 (1964); Pinana v. District Court, 75 Nev. 74, 334 P.2d 843 (1959);
State v. McFadden, 46 Nev. 1, 205 P. 594 (1922). We are not aware of any authority holding
that a district court is without discretion to rule upon a motion to vacate a clerk's entry of
default and must act mechanically to grant the motion. Indeed, the pertinent rule by clear
language invests the court with discretion. NRCP 55(c) reads: For good cause shown the
court may set aside an entry of default * * *. Nor has relief, plain, speedy and adequate, been
precluded by the lower court's ruling. Roventini may suffer default judgment to be entered,
move to set it aside under NRCP 60, and if unsuccessful, appeal therefrom. Hotel Last
Frontier v. Frontier Properties, Inc., 79 Nev. 150, 380 P.2d 293 (1963).
The petitioner suggests that our holding in Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610
(1964), controls here. Dzack is inapposite. There, by mandamus, we forced the district court
to enter summary judgment because, inter alia, the summary judgment rule provides that
judgment shall be entered in certain circumstances. The mandatory word shall was
deemed by the majority of the court to destroy discretion if those circumstances were present.
That word cannot be found in NRCP 55(c) which governs this case.
[Headnote 4]
With these principles in mind it is not useful to recite the facts surrounding Roventini's
failure to respond to the plaintiff's complaint in time, which facts were, of course, presented
to the District Court when it ruled upon the motion to vacate the entry of default.
upon the motion to vacate the entry of default. That motion called for an exercise of the
District Court's discretion and is not subject to review by mandamus.
Writ denied and petition dismissed.
____________
81 Nev. 606, 606 (1965) Nichter v. Edmiston
PHYLLIS NICHTER, Appellant, v.
J. MALCOLM EDMISTON, Respondent.
No. 4903
November 18, 1965 407 P.2d 721
Appeal from verdict and judgment for defendant in a medical malpractice suit. Second
Judicial District Court, Washoe County, Peter Breen, Judge.
Action by patient against surgeon for burns sustained when disinfectant applied to patient's
arm by nurse ignited upon coming into contact with surgeon's electric needle. The trial court
rendered a judgment for defendant, and plaintiff appealed. The Supreme Court, Zenoff, D. J.,
held, inter alia, that agreement that deliberations and discussions of joint screening panel of
county bar association and county medical society on malpractice claims would be
confidential and that no panel member would be asked in any action to testify concerning
deliberations did not extend privilege against testifying to nonmembers and accordingly
comments before panel by surgeon against whom claim was asserted were admissible, but
that refusal to permit evidence of surgeon's statements before panel was under circumstances
harmless error.
Affirmed.
Nada Novakovich, of Reno, for Appellant.
Richard P. Wait and Roger L. Erickson, of Reno, for Respondent.
1. Appeal and Error; Witnesses.
Agreement that deliberations and discussions of joint screening panel of county bar association and
county medical society on malpractice claims would be confidential and that no panel member would
be asked in any action to testify concerning deliberations did not extend privilege
against testifying to nonmembers and accordingly comments before panel by surgeon
against whom claim was asserted were admissible at trial of action for alleged
malpractice for impeachment purposes, but refusal to permit evidence of surgeon's
statements before panel was, under circumstances, harmless error.
panel member would be asked in any action to testify concerning deliberations did not extend privilege
against testifying to nonmembers and accordingly comments before panel by surgeon against whom claim
was asserted were admissible at trial of action for alleged malpractice for impeachment purposes, but
refusal to permit evidence of surgeon's statements before panel was, under circumstances, harmless error.
2. Witnesses.
If privilege against disclosure of comments made before bar association-medical society joint screening
panel for malpractice claims existed, it could not be waived by defendant's simple reference to existence of
panel in trial of malpractice claim.
Instruction that doctor in charge of operation is liable for negligence of those including hospital nurses
who become his temporary servants was properly refused to plaintiff who sought to recover for burns when
disinfectant applied by nurse ignited when it came in contact with doctor's electric needle as instruction
offered but one extreme of law and it could not be determined as a matter of law that situation was one in
which nurse became temporary servant of doctor.
4. Trial.
Court must instruct on general principles of law governing case even though not requested to do so.
No prejudice resulted to patient suing surgeon to recover for burns resulting when disinfectant applied to
her arm by nurse ignited when it came in contact with surgeon's electric needle from failure of court to give
any instruction on subject of whether surgeon was liable for conduct of nurse as his special employee when
patient submitted only incorrect instruction under which liability would have been imputed as matter of law
and patient made no offer of evidence that custom or usage required surgeon to supervise application of
anesthetic.
Whether surgeon was liable on malpractice claim for burns sustained by patient when disinfectant applied
to patient's arm by hospital nurse ignited when it came in contact with surgeon's electric needle was
properly submitted to jury.
Instruction that jury could judicially notice that when heat is applied to alcohol it is combustible was not
essential to case of patient seeking recovery from surgeon for burns sustained when disinfectant applied to
her arm by nurse ignited upon coming in contact with surgeon's electric needle, and no error could be
found in its refusal.
OPINION
This is an appeal from a jury verdict and judgment for defendant surgeon in a medical
malpractice action.
Appellant, Phyllis Nichter, underwent surgery for a breast biopsy at St. Mary's Hospital in
Reno. While still anesthetized, she next was prepared for removal of a small lesion from her
left arm, a nurse applying tincture of zephiran disinfectant to the area while defendant
surgeon, Dr. J. Malcolm Edmiston, his back turned, was rescrubbing at a nearby sink. Dr.
Edmiston then returned to the operating table and applied an electric needle to remove the
lesion. For some reason fumes from the disinfectant ignited on contact with the heated
needle, causing a second degree burn over a four-inch area of Mrs. Nichter's arm, and leaving
a permanent scar. Subsequently, Mrs. Nichter brought this action against Dr. Edmiston. A
jury found for defendant.
Appellant assigns six contentions of error. We feel only two merit extensive discussion,
but note at the outset that we reject all six.
1. The Washoe County Bar Association and Washoe County Medical Society, pursuant to
a Joint Medical-Legal Plan, have created a Joint Screening Panel to provide pre-litigation
examination of alleged medical malpractices in an attempt to ward off unfounded law suits
and, concurrently, assist orderly recovery for bona fide claims. Appellant and her counsel
requested an appearance before this panel. So doing, they signed a form agreement that the
deliberations and discussions of the Joint Screening Panel and of any member of the Joint
Screening Panel in its deliberation of the case will be confidential within the Joint Screening
Panel and privileged as to any other person, and that no Joint Screening Panel member will be
asked in any action to testify concerning the deliberation, discussion and internal proceedings
of the Joint Screening Panel. (Emphasis added.)
At trial, however, appellant sought to impeach Dr. Edmiston by use of a statement he
allegedly made before the panel.
1
The court refused this offer of proof on grounds that all
matter before the panel was privileged by virtue of the aforementioned agreement.
____________________

1
Proceedings before the panel, by express design, are informal and not reported. Appellant's counsel,
however, insisted on taking notes and later claimed Dr. Edmiston had told the panel that the burn was caused by
an excessive application of tincture of zephiran. At the trial, Dr. Edmiston testified he did not know what
caused
on grounds that all matter before the panel was privileged by virtue of the aforementioned
agreement. Appellant here concedes existence of the agreement, but insists it pertains only to
members of the panel, thus excluding Dr. Edmiston.
[Headnote 1]
We must agree, though we sympathize with respondent's contention that so limiting the
panel's privilege defeats the agreement's entire purpose, which is to encourage full and candid
discussion before the panel without fear of subsequent litigable consequences. Nevertheless,
the agreement repeatedly refers only to members of the panel. In the face of such wording,
considering the agreement could as easily have provided exclusion to members of the panel
and all persons appearing before it, we feel powerless here to view the privilege as
extending to nonmembers. Thus Dr. Edmiston's comments before the panel were admissible
at the trial for impeachment purposes. However, under the instant facts refusal of these
comments was harmless error, since plaintiff introduced almost identical impeachment from
two other sources. Both she and her mother testified Dr. Edmiston had admitted to them the
burn was an accident probably caused by an excessive application of zephiran and he was
sorry. The jury thus had ample opportunity to consider Dr. Edmiston's contrary testimony in
its least favorable light. This witness had been discredited, therefore, as much as was
possible; delivery up of the statement would have added no new factor. Clark, J., dissenting
in United States v. Krulewitch, 145 F.2d 76 (2d Cir. 1944).
[Headnote 2]
2. Having found no privilege, it is unnecessary for us to consider appellant's contention
that even had a privilege existed, it was waived by respondent's prior reference simply to the
existence of a panel meeting.
____________________
the burn. During appellant's offer of proof, Dr. Edmiston, while still maintaining comments before the panel
were privileged, protested he only had said one of the causes of the burn might have been an excessive
application of zephiran.
Suffice that where a privilege does exist, it cannot so lightly be discarded. United States v.
Krulewitch, supra.
[Headnote 3]
3. Appellant also protests the trial court's refusal of the following requested instruction,
which, in effect, could have held Dr. Edmiston liable for the acts of everyone in the operating
room:
A doctor in charge of a surgical operation is liable for the negligence of those who
become his temporary servants in assisting in the operation, including physicians and nurses
employed by the hospital in which the operation has been performed, or engaged by the
patient.
The difficulty is that, under evidence presented, this instruction offered but one extreme of
the law. For the instruction to have any pertinence, the jury would have had to assume, as a
matter of law, that the nurse applying the tincture of zephiran was a temporary servant of
Dr. Edmiston. However, law on the subject is not that clear. True, it often is said that nurses
become the temporary servants or agents of the surgeon-in-charge while the operation is in
progress, Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258, but this is
qualified by an extensive analysis in Sherman v. Hartman, 137 Cal.App.2d 589, 290 P.2d
894. Thus, the court, distinguishing Ybarra, held the true rule was to be found in Hallinan
v. Prindle, 17 Cal. App.2d 656, 661-662, 62 P.2d 1075, to wit: absent knowledge, special
connection, or lack of ordinary care, a surgeon is not liable for the negligence of hospital or
other nurses, attendants or interns who are not the surgeon's employees. The exception to this
rule is where a hospital nurse, although not in the regular employ of an operation surgeon, is
under his special supervision and control during the operation. (Emphasis added.)
To find such special supervision and control courts generally look to custom and usage.
Salgo v. Leland Stanford, 154 Cal.App.2d 560, 317 P.2d 170. Is the act sought to be
attributed to the surgeon via vicarious liability one for which the surgeon reasonably can be
held responsible? Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915, 53 A.L.R.2d 124. Thus,
purely routine acts of the hospital staff generally are held separate.
hospital staff generally are held separate. In this category is the routine preparation of a
patient preceding an operation.
In the instant case, the nurse's application of disinfectant to Mrs. Nichter's arm about to
undergo cauterization does not seem that distinct from general pre-operative procedure. We
cannot say as a matter of law that this was the type of act requiring special supervision and
control by the surgeon in charge. No harshness results from this. Plaintiff could have joined
the hospital and nurse as co-defendants.
[Headnotes 4, 5]
Having decided plaintiff's requested instruction to be incorrect because it would have
imputed liability as a matter of law, we now turn to the more difficult question of whether the
absence of any instruction precluded imputation. The trial court must instruct on the general
principles of law governing the case, even though not requested to do so. People v. Wade, 53
Cal.2d 322, 1 Cal.Rptr. 683, 348 P.2d 116. The rule seems equally vital for civil litigation.
However, in the instant case we can find no attempt by plaintiff to offer evidence that custom
and usage did require Dr. Edmiston to supervise the application of the zephiran. Therefore,
absence of an instruction under these circumstances was not prejudicial error.
[Headnote 6]
4. The trial court properly denied appellant's motion for a directed verdict. Bliss v.
DePrang, 81 Nev. 599, 407 P.2d 726.
[Headnote 7]
5. Similarly, there was no error in the court's refusal to instruct the jury that it could
judicially notice that when heat is applied to alcohol it is combustible. We need not decide
whether the subject is one of which judicial notice may be taken. It is sufficient to state
simply that the instruction was not essential and error is seldom found in the failure to give an
unnecessary instruction, though it may be a permissible one.
6. Finally, appellant has no basis for attacking some of respondent's given instructions as
argumentative.
Affirmed.
____________
81 Nev. 612, 612 (1965) Wait v. District Court
RICHARD P. WAIT, Esq., Petitioner, v. SECOND JUDICIAL DISTRICT COURT,
THOMAS O. CRAVEN, Judge, Respondent.
No. 4968
November 18, 1965 407 P.2d 912
Original petition for a writ of mandamus (treated herein as a petition for certiorari).
Attorney petitioned for a writ of mandamus to compel district court and judge to allow
attorney to remain as counsel for two of three defendants in a tort action. The Supreme Court,
Badt, J., held that fact that husband and wife who owned store in which customer fell and was
injured were adversaries in a divorce suit would not create a conflict of interest sufficient to
support removal of their attorney in customer's tort suit against them, where no evidence
existed that any confidential information obtained from the one client would be used against
the other.
Petition granted. Order of respondent court annulled.
Richard P. Wait and Roger L. Erickson, of Reno, for Petitioner.
Peter Echeverria and Alfred H. Osborne, of Reno, for Respondent.
Court has inherent power in a proper case to enjoin an attorney from appearing for a party, the exercise of
which power is designed to prevent injustice, and authority for exercise whereof is independent of any
positive provision of law.
Generally, an attorney cannot represent conflicting interests, or undertake discharge of inconsistent
duties, and when he has once been retained and received the confidence of a client he
cannot accept a retainer from, or enter the services of, those whose interests are
adverse to his client in the same controversy, or in matters so closely allied thereto as
to be, in effect, a part thereof.
once been retained and received the confidence of a client he cannot accept a retainer from, or enter the
services of, those whose interests are adverse to his client in the same controversy, or in matters so closely
allied thereto as to be, in effect, a part thereof.
Fact that husband and wife who owned store in which customer fell and was injured were adversaries in a
divorce suit would not create a conflict of interest sufficient to support removal of their attorney in
customer's tort suit against them, where no evidence existed that any confidential information obtained
from one client would be used against the other.
Once formal litigation has begun an attorney must request court permission before he can leave his client.
An attorney appearing in court to represent his clients, particularly in litigation that has occupied over
two years, cannot summarily be removed by the court in the absence of just cause.
OPINION
Petitioner, attorney Richard P. Wait, has filed a petition for a writ of mandamus to compel
the respondent district court, and the respondent judge thereof, to allow petitioner to remain
as counsel for two of the three defendants in a tort action.
The plaintiff in that tort action was a Mrs. Geraldine Wilson, whose complaint alleged that
a grocery clerk, thereafter identified as Boyd Turpin, acting on behalf of his employers and
within the scope of his employment, suddenly leaped at plaintiff from a place of concealment
and loudly shouted at her while she was engaged, as a business invitee at the Reno Market
Spot, in the selection of groceries; that in attempting to evade such immediate and harmful or
offensive conduct plaintiff slipped and fell to the floor and suffered injuries, or fainted and
fell to the floor with great force and violence, and suffered injuries proximately resulting
therefrom. Pearl Davenport and Earl Davenport, her husband, were the owners of said Reno
Market Spot, and Boyd Turpin was their clerk.
Attorney Wait was retained by these three defendants to defend the action.
1
On behalf of
all three defendants he filed a general denial. However, Wait subsequently learned of serious
marital discord between Earl Davenport and Pearl Davenport, culminating in Earl's demand,
made in a telephone conversation with Wait, that Pearl recognize Earl's claimed one-half
ownership in the market, or Earl would make sure she lost the case. Earl had previously
stated that he had no knowledge of the cause of Mrs. Wilson's fall. It appeared from the
deposition of plaintiff Geraldine Wilson that Earl Davenport had called at the Wilson's home
and had stated to Mr. Wilson that Boyd Turpin had on prior occasions performed tricks on
and attempted to scare other customers; that he, Earl Davenport, had been present at the
occasion of Mrs. Wilson's fall and that he had seen Boyd Turpin try to scare her. Thereafter
Earl Davenport, on hearing read this version of the facts, acknowledged that the same was
correct, and that he intended to testify under oath that those things actually occurred and took
place unless Pearl Davenport agreed to give him one half of the Market Spot and other
property held by her, all of which was subject to pending divorce proceedings. Mr. Wait's
position at that time was that any marital or divorce difficulties then existing between Pearl
and Earl Davenport had nothing to do with the defense of Mrs. Wilson's tort action, which
was in no way related thereto, and that the division of property interests should have nothing
to do with Earl Davenport's testimony as to what truthfully took place in the Reno Market
Spot.
Earl's further deposition was scheduled for the following day. He failed to appear and his
whereabouts has since been allegedly unknown.
Attorney Wait moved for an order for change and substitution of attorneys for Earl
Davenport, attaching supporting affidavits of himself and Turpin reciting Earl's threats to
lose the suit and Earl's meeting with the Wilsons. Such motion was based upon the recital
that the events and circumstances recited in the affidavits "have created a conflict of
interest between said defendant Earl Davenport and defendants Pearl Davenport and
Boyd Turpin in the said action"; that Wait no longer desired to be Earl's attorney and
requested the right to withdraw as such attorney on behalf of Earl Davenport, because of
Earl's refusal and failure to cooperate with him or even to provide information as to his
physical location, or where he could be contacted; that at his last telephone conversation
with Earl the latter had personally threatened him and "uttered swear words at affiant"
and hung up the telephone.
____________________

1
The complaint was framed on negligence. Assault was alternately pleaded.
that the events and circumstances recited in the affidavits have created a conflict of interest
between said defendant Earl Davenport and defendants Pearl Davenport and Boyd Turpin in
the said action; that Wait no longer desired to be Earl's attorney and requested the right to
withdraw as such attorney on behalf of Earl Davenport, because of Earl's refusal and failure
to cooperate with him or even to provide information as to his physical location, or where he
could be contacted; that at his last telephone conversation with Earl the latter had personally
threatened him and uttered swear words at affiant and hung up the telephone. But despite
his advice to Earl that the dispute over property rights involved in the divorce proceedings
had nothing to do with Mrs. Wilson's pending tort action, Wait continued to support his
motion for leave to withdraw as Earl's attorney upon the ground of a conflict of interests
and cited authorities in support of his position.
In opposition to Wait's motion for change and substitution of attorneys for Earl Davenport,
counsel for Mrs. Wilson insisted, among other things, that if Wait's assertion as to a conflict
of interest was to be accepted, it foreclosed his representing any of his three original clients.
We treat his present petition as a petition for a writ of certiorari.
[Headnote 1]
Respondent relies upon Hawkins v. Eighth Judicial District Court, 67 Nev. 248, 216 P.2d
601, and Boyd v. Second Judicial District Court, 51 Nev. 264, 274 P. 7, 9. It also relies on
Canon 6 and Canon 37. In Hawkins, supra, this court said: [A] court has inherent power in a
proper case to enjoin an attorney from appearing for a party, the exercise of which [power] is
designed to prevent injustice, and the authority for the exercise whereof is independent of any
positive provision of law. We there quoted Boyd which explains what constitutes the
injustice referred to:
[Headnote 2]
It is well-settled general rule * * * that an attorney cannot represent conflicting interests,
or undertake the discharge of inconsistent duties.
discharge of inconsistent duties. When he has once been retained and received the confidence
of a client, he cannot accept a retainer from, or enter the services of, those whose interests are
adverse to his client in the same controversy, or in matters so closely allied thereto as to be,
in effect, a part thereof.' (Emphasis supplied.)
A mere reading of those cases and a consideration of the conflicting interests involved in
both will indicate promptly that they are not in point. Respondent also relies upon
Consolidated Theatres v. Warner Bros. Cir. Man. Corp., 2 Cir., 216 F.2d 920, which quotes
T. C. Theater Corp. v. Warner Bros. Pictures, Inc., D.C., 113 F.Supp. 265, as follows:
* * * [T]he former client need show no more than that the matters embraced within the
pending suit wherein his former attorney appears on behalf of his adversary are substantially
related to the matters or cause of action wherein the attorney previously represented him, the
former client.' (Emphasis added.) This is patently not in point.
Respondent also relies upon Canon 6 and 37 of the Canons of Professional Ethics. We
need not quote them in full. Canon 6 provides that a lawyer represents conflicting interests
when, in behalf of one client, it is his duty to contend for that which duty to another client
requires him to oppose.
[Headnote 3]
Canon 37 states in part: A lawyer should not continue employment when he discovers
that this obligation prevents the performance of his full duty to his former or to his new
client. None of these situations exists here. Mrs. Davenport and Turpin are not Earl
Davenport's adversaries in the Wilson suit. That Mr. and Mrs. Davenport are adversaries in
their divorce suit does not create a conflict of interest in Mrs. Wilson's tort suit against them,
and it is virtually impossible to discover any confidential information obtained from the one
client which will be used against the other. See In re Dix' Will, 21 Misc.2d 864, 201 N.Y.S.2d
299, affirmed by the appellate division in 11 A.D.2d 555, 199 N.Y.S.2d 958.
It is easy to see how the court below was led into error. Petitioner asked to be relieved of
his duty in representing Earl Davenport because of a conflict of interests and sought to
prove such conflict by the authorities cited by him. In opposition to his petition for leave to
withdraw as Earl's attorney, counsel for Mrs. Wilson joined in the contention of conflicting
interests but insisted upon Wait's complete withdrawal from the case, arguing with sudden
great concern for the interests of Earl Davenport that for Wait to continue in the case on
behalf of Pearl prevents the performance of his full duty to his former * * * client [Earl].
2

Be that as it may, the court entered an order pursuant to [its] inherent powers and sua
sponte because of the conflict of interest as indicated by his affidavit on file in support of his
motion to be relieved as attorney for the defendant, Earl Davenport, * * *. The court acted in
good faith, accepting the view of both parties that there was a conflict of interest and ruled
accordinglya ruling which would have been correct had the facts been as the court was
impliedly led to believe. Even in this court it is hard for Wait to surrender his contention that
there was such conflict of interest because his clients were fighting among themselves in
general and Earl threatened a conflict in his testimony. However, despite Wait's use of an
inappropriate term to justify his withdrawal as Earl Davenport's attorney, the fact remains that
Earl's attempted blackmail in threatening to defeat Pearl's defense against Mrs. Wilson's tort
action, Earl's lack of cooperation, his profane language to Wait, his failure to appear for a
scheduled deposition, and his final disappearance from the scene, clearly warranted Wait's
withdrawal, but did not present a conflict of interest. Earl's interest wasand isin
avoiding liability for Mrs. Wilson's fall.
[Headnote 4]
It is clear, however, that Wait had to request court permission before he could leave his
client, Earl Davenport, once formal litigation had begun.
____________________

2
This concern was not manifested when counsel for Mrs. Wilson had Earl's answer stricken because of his
failure to appear for the taking of his deposition and thereafter caused his default to be entered.
permission before he could leave his client, Earl Davenport, once formal litigation had begun.
United States v. Curry, 47 U.S. (6 How.) 106, 111, 12 L.Ed. 363; Tripp v. Santa Rosa St. R.
Co., 144 U.S. 126, 128, 12 S.Ct. 655, 36 L.Ed. 371. The client left without counsel must have
proper official notice so that other counsel may be obtained within reasonable time to protect
the client's rights. Also, all parties must be made aware of any change of opposing counsel, so
they can know upon whom to make service of orders, etc. In State v. Bersch, 276 Mo. 397,
207 S.W. 809, the court said:
The contract of an attorney with his client is an entire and continuous one, and he cannot
abandon the service of his client before the termination of his suit without sufficient cause.
But there may arise in the conduct of the case reasons why such a withdrawal would not only
be permissible but necessary. An attorney, being an officer of the court, is charged with a
duty, not only to obey the law, but to preserve his professional integrity. * * * [A]ny conduct
on the part of a client during the progress of litigation which would tend to degrade or
humiliate the attorney, such as an attempt to sustain his case by any unlawful means, is
sufficient cause for withdrawal from the case. (citations)
The relation of attorney and client is of a most confidential and intimate nature. Their
reciprocal duties to each other require the utmost good faith and fidelity. It is as much the
duty of the client to submit himself to the direction of his counsel in every matter pertaining
to the management of the case as it is of the counsel to use all his endeavors in faithful
adherence to his client's interest. If the client should do anything, or attempt anything, which
would tend to bring his attorney into disrepute by being connected with unlawful methods,
the counsel would do violence to his own professional character if he did not withdraw from
the case.
[Headnote 5]
We are satisfied that there was overwhelming reason for Wait to be permitted to withdraw
as Earl Davenport's attorney in the Wilson suit and the court should have granted Wait's
motion for substitution.
have granted Wait's motion for substitution. However, the court was without power to bar
Wait from continuing his representation of Pearl Davenport and Boyd Turpin. It is elementary
that an attorney appearing in court to represent his clients, particularly in litigation that has
occupied over two years, cannot summarily be removed by the court in the absence of just
cause. The only cause recited by the court in support of its enjoining Richard P. Wait from
appearing for and in behalf of any of the defendants was because of the conflict of interest
as indicated by his affidavit on file * * *. Wait did indeed base his motion to withdraw as
Earl Davenport's attorney upon a conflict of interest. The trial court cannot be criticized for
accepting Wait's statementespecially with the assist given it by Mrs. Wilson's
counselbut Wait's statement was in error; there was no conflict.
The court made no order upon Wait's motion for permission to withdraw as counsel for
Earl Davenport. Its order simply enjoined him from appearing for any of the defendants in the
action brought by Geraldine Wilson. To such extent it implicitly granted his motion to
withdraw as attorney for Earl, and to that extent is approved.
The balance of the order of injunction must be and it is hereby annulled. The respondent
court is hereby directed to enter an order permitting petitioner to continue to represent Reno
Market Spot, Pearl Davenport, and Boyd Turpin in said proceeding No. 202798, pending in
Department No. 4 of the Second Judicial District Court, entitled Geraldine Wilson, Plaintiff,
vs. Reno Market Spot, Pearl Davenport, Boyd Turpin, et al., Defendants.
____________
81 Nev. 620, 620 (1965) Tomlin v. State
PAUL TOMLIN and HOLLIS QUEEN, Appellants, v.
No. 4907
November 24, 1965 407 P.2d 1020
Appeal from conviction of burglary; Second Judicial District Court, Washoe County;
Grant L. Bowen, Judge.
Prosecution of appellants and a third person for burglary in first degree. The third person
pleaded guilty prior to commencement of trial, thereby bringing about automatic severance,
and the case against appellants went to trial. Appeal was taken from conviction and sentence
in the trial court. The Supreme Court, Zenoff, D. J., held, inter alia, that the trial court did not
err in allowing prosecuting attorney to continue with prosecution after testifying as to third
person's pretrial statements inculpating appellants in contradiction with third person's trial
testimony, in not excusing a juror who during trial had informed a secretary in the district
attorney's office that one of the prospective witnesses was an acquaintance, in excusing
another juror who had informed the court that he had been offered bribe, and in an instruction
relating to the right of a defendant in a criminal action not to be a witness against himself.
Affirmed.
Harry Busscher, of Reno, for Appellants.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and R. Gaynor
Berry, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Trial court did not commit reversible error in denying motion for severance by two burglary defendants
from other defendant, where other defendant pleaded guilty, thereby bringing about automatic severance
and where other defendant testified favorably to defendants at their trial.
2. Witnesses.
The particular latitude to be allowed to attorney to cross-examine his own witness, when it is found that
attorney was surprised by witness' testimony, is within discretion of trial court.
3. Criminal Law.
Although a prosecutor is competent to testify under unusual circumstances and may even be compelled to
do so, if he is aware prior to trial that he will be a necessary witness, or if he discovers
this fact in the course of the trial, he should withdraw and have other counsel
prosecute the case.
aware prior to trial that he will be a necessary witness, or if he discovers this fact in the course of the trial,
he should withdraw and have other counsel prosecute the case.
4. Witnesses.
Prosecutor's competence to testify is strictly limited to those instances where his testimony is made
necessary by peculiar and unusual circumstances of case, and even then his functions as prosecuting
attorney and as witness should be disassociated.
5. Criminal Law.
Trial court did not err in allowing prosecuting attorney to continue with prosecution of two defendants for
burglary after testifying as to an accomplice's pretrial statements inculpating defendants, where prosecutor
was surprised by accomplice's trial testimony which contradicted pretrial statement, was unable to locate
another prosecutor to take his place, and made no comment in summation to jury as to his own testimony.
6. Criminal Law.
If private communication with a juror in criminal case during trial on any subject connected with trial is
deemed presumptively prejudicial, then role of court is to determine whether evidence presented in hearing
independent of but during the main trial was sufficient to rebut any presumption of prejudice.
7. Criminal Law.
Evidence supported determination by trial court in burglary prosecution that there was no prejudice to
defendants in not excusing juror who during trial had informed a secretary in district attorney's office that
one of prospective witnesses was an acquaintance, where court was immediately informed of incident and
secured assurances from juror as to her impartiality and where juror spoke with no member of district
attorney's staff except secretary.
8. Jury.
Trial court in burglary prosecution did not err in excusing juror who during trial informed court that he
had been offered bribe, where none of other jurors knew of reported incident and court's conclusion was
reached after investigation of the matter out of presence of jury.
9. Criminal Law.
Instruction in burglary prosecution that, in accordance with rights guaranteed by state Constitution, no
person could be compelled in criminal action to be witness against himself adequately advised jury on
point in question, and two other comprehensive instructions offered by defendants on same subject were
properly rejected by court as repetitive and merely restatements of law. NRS 169.180.
OPINION
The appellants, Paul Tomlin and Hollis Queen, were charged by Grand Jury indictment on
October 14, 1964, with burglary in the first degree.
with burglary in the first degree. A third person, Charles Eugene Hayter, was included in the
indictment. The appellants entered pleas of not guilty to the charge of burglary and sought a
motion for severance from defendant Charles Eugene Hayter upon the grounds that (1) they
desired to call him as a witness, and (2) they would be prejudiced by the fact that Hayter had
been convicted of manslaughter and was presently serving a sentence in the Nevada State
Penitentiary. This motion was not granted. However, Hayter entered a plea of guilty prior to
the commencement of the trial of appellants, thereby bringing about an automatic severance.
Trial was commenced on April 12, 1965. The appellants presented no evidence and did not
take the stand. They were found guilty of burglary in the first degree on April 20, 1965.
Motions by the appellants for a new trial were denied and a sentence of one to fifteen years in
the State Prison was pronounced. It is from this judgment that appellants seek relief.
[Headnote 1]
1. As their first ground for appeal, appellants claim that the trial court committed
reversible error in denying their motion for severance. This contention is without merit since
Hayter's change of plea to guilty constituted an automatic severance, and made this point
moot. Further, since Hayter testified favorably to appellants at their trial, they can scarcely
claim prejudice.
2. Another question is presented to this court as to the conduct, during the course of the
trial, of the Deputy District Attorney. During the trial, Hayter was called as a witness for the
State and he testified that the appellants had nothing to do with the burglary, that he had acted
alone. The Deputy District Attorney, expressing surprise in that Hayter's testimony as to the
burglary was the exact opposite of that related to him prior to the trial, asked the court to
declare Hayter a hostile witness and to allow cross-examination of him. The trial court
granted this request. Appellants claim this was error.
[Headnote 2]
In United States v. Graham, 102 F.2d 436 (2nd Cir. 1939), it was held that an assurance by
a prosecutor to a court that he was surprised by a witness' testimony was enough to authorize
the court to exercise its discretion to permit the witness to be cross-examined. The particular
latitude to be allowed an attorney in the cross-examination of one of his own witnesses, when
surprise is found, is within the discretion of the trial court. Wheeler v. United States, 211 F.2d
19 (D.C. Cir. 1953); Ellis v. United States, 138 F.2d 612 (8th Cir. 1943).
Later, the Deputy District Attorney took the witness stand himself and testified as to the
statements that Hayter had previously made to him, which implicated the appellants in the
burglaryits planning, execution, and proceeds. The Deputy District Attorney continued
with the prosecution of the case, informing the court that no other prosecutor was available
and that no one else knew the facts in the case. No comment was made by the prosecutor,
upon summation to the jury, as to his own testimony. The court gave an instruction to the jury
to the effect that the District Attorney, could not comment on his own testimony, but the jury
could consider it with all other credible evidence.
[Headnotes 3, 4]
The law is clear that a prosecutor is competent to testify and he may even be compelled to
do so. Robertson v. Commonwealth, 269 Ky. 317, 107 S.W.2d 292 (1937); Robinson v.
United States, 32 F.2d 505 (8th Cir. 1928); United States v. Alu, 246 F.2d 29 (2nd Cir. 1957).
However, this is strictly limited to those instances where his testimony is made necessary by
the peculiar and unusual circumstances of the case. Even then, his functions as a prosecuting
attorney and as a witness should be disassociated. If he is aware, prior to the trial, that he will
be a necessary witness, or, if he discovers this fact in the course of the trial, he should
withdraw and have other counsel prosecute the case. Robinson v. United States, supra.
The Deputy District Attorney represented to the trial court that he was the only deputy in
the office of the District Attorney who had had anything to do with the preparation of the
case, that the volume of business handled by the District Attorney was so great that no other
deputies could be spared to assist him, and that the number of witnesses to be called,
approximately 15, precluded the appointment of another deputy. The better practice would
have been for the prosecuting attorney to have stepped out of the case when it became
necessary for him to testify. However, this was not reasonable under the unusual
circumstances of this case. The practice of acting as prosecutor and witness is not approved
and should not be indulged in except under most extraordinary circumstances. However, the
surprise testimony of Hayter and the inability of the Deputy District Attorney to locate
another prosecutor to take his place left the court with little choice.
[Headnote 5]
We find that the trial court properly exercised its discretion in allowing the Deputy District
Attorney to continue with the prosecution under the unusual circumstances of this particular
case.
3. During the course of the trial, one of the secretaries in the District Attorney's office
received a communication from a juror, who apparently wanted to contact a member of the
District Attorney's staff to inform him that she was acquainted with one of the prospective
witnesses with whom she had worked. She had not recognized the name prior to that time.
She spoke with no member of the District Attorney's staff except the aforementioned
secretary. The court was immediately informed of the incident and proceeded to question the
juror as to whether or not she would be influenced by the fact that she had known one of the
witnesses for the State. The court secured assurances from the juror as to her impartiality.
Appellants claim that the court erred in permitting the juror to continue to serve.
[Headnotes 6, 7]
If private communication with a juror in a criminal case during a trial on any subject
connected with the trial is deemed presumptively prejudicial, Parsons v. State, 74 Nev. 302,
329 P.2d 1070 (1958), then the role of the court is to determine whether the evidence
presented during its investigation and hearing independent of but during the main trial was
sufficient to rebut any presumption of prejudice. Conforte v. State, 77 Nev. 269, 362 P.2d
274, 277 (1961). The determination of the trial court in this instance was that the evidence
clearly indicated that there was no prejudice to the appellants. This determination is supported
by substantial evidence and will not be disturbed.
[Headnote 8]
4. During the trial, another juror informed the court that he had been approached by one of
the appellants and offered a bribe. None of the other jurors knew of the reported incident. The
court investigated the matter, out of the presence of the jury, and came to the conclusion that
that juror should be excused and that an alternate juror should take his place. We hold this
ruling was proper and that there was no abuse of discretion on the part of the district court.
[Headnote 9]
5. Appellants next contend that reversible error was committed in giving Instruction 14,
which had been offered by appellant's counsel without the accompaniment of the explanatory
instructions. Instruction 14 stated, In accordance with the right guaranteed by the
Constitution of the State of Nevada no person can be compelled in a criminal action to be a
witness against himself. Appellants sought to have two more comprehensive instructions on
the same subject. These were repetitive and merely restated the law under NRS 169.180.
1
The instruction which was given was succinct and adequately and sufficiently advised the
jury on the point in question.

____________________

1
NRS 169.180 states: No person can be compelled in a criminal action to be a witness against himself, * *
*.
The instruction which was given was succinct and adequately and sufficiently advised the
jury on the point in question. Therefore, we fail to find error here.
6. We find that appellants' other assignments of error are without merit and fail to show
any action by the lower court which would constitute reversible error.
We affirm the judgment entered below.
____________
81 Nev. 626, 626 (1965) Las Vegas-Tonopah-Reno Stage Line v. Nevada Indus. Industrial
Comm'n
LAS VEGAS-TONOPAH-RENO STAGE LINE, INC., a Nevada Corporation, Appellant, v.
NEVADA INDUSTRIAL COMMISSION, Respondent.
No. 4908
November 29, 1965 408 P.2d 241
Craven, Judge.
Action by employer against Industrial Commission for reimbursement for judgment
rendered against employer in common-law action by employee. The lower court entered
judgment for Industrial Commission and employer appealed. The Supreme Court, Thompson,
J., held that where employee filed claim for injuries sustained in fight with fellow employee
with Industrial Commission, it was rejected and no appeal was taken, and employee obtained
judgment in common-law action against employer wherein Industrial Commission was not
made a party and no appeal was taken from judgment, employer could not obtain
reimbursement for judgment obtained by employee.
Affirmed.
Ernest S. Brown and Peter I. Breen, of Reno, for Appellant.
William J. Crowell, of Carson City, for Respondent.
1. Workmen's Compensation.
Once it is determined by Industrial Commission or by court that covered employee had sustained
personal injuries arising out of and in course of his employment, compensation is limited to that provided
by Industrial Insurance Act and common-law action for damages against employer is
prohibited.
Comm'n
action for damages against employer is prohibited. NRS 616.270, 616.370.
If Industrial Commission or court decides that injury sustained by employee is not compensable under
Industrial Insurance Act, common-law action for damages by employee against his employer may
sometimes be permissible. NRS 616.270, 616.370.
Where employee is injured, liability of either Industrial Commission or employer precludes liability of
other. NRS 616.270, 616.370.
Where employee's claim for injuries sustained in fight with fellow employee was rejected by Industrial
Commission and he successfully pursued his claim against his employer on theory that injury sustained was
not compensable under Industrial Insurance Act, industrial insurance fund could not be invaded to
reimburse employer. NRS 616.270, 616.370.
OPINION
In a collateral common-law damage action, John Cave recovered a judgment against his
employer Las Vegas-Tonopah-Reno Stage Lines, Inc. (LTR) for $12,500 and costs, which
LTR paid. By this suit LTR seeks reimbursement of that amount from the Nevada Industrial
Commission. The lower court ruled for the commission, and this appeal by LTR followed.
We affirm.
Cave was employed by LTR as a bus driver. He engaged in a fight with a co-employee
Shillinglaw, and was injured. A claim for compensation was presented to the Nevada
Industrial Commission, but rejected. Cave's employer, LTR, had accepted the provisions of
the Nevada Industrial Insurance Act, thereby securing compensation for him, should his
personal injury be deemed one caused by accident and arising out of and in the course of
employment; NRS 616.270.
1
The commission's denial of Cave's claim was not challenged
by him. He did not test the validity of that denial by filing suit against the commission. Cf.
Heidtman v. Nevada Ind. Comm'n, 78 Nev. 25, 368 P.2d 763; Nevada Ind.
____________________

1
A personal injury caused by an assault and battery may, or may not, be compensable under the act,
depending on the circumstances involved. McColl v. Scherer, 73 Nev. 226, 315 P.2d 807.
Comm'n
Comm. v. Dixon, 77 Nev. 296, 362 P.2d 577; Dahlquist v. Nevada Ind. Comm., 46 Nev. 107,
206 P. 197. Instead he commenced a common-law action for damages against his
co-employee Shillinglaw and his employer LTR. The commission was not named a party
defendant in that litigation, nor was it impleaded by the defendants. The money judgment
obtained therein was not challenged by appeal and has been satisfied.
[Headnotes 1-4]
As already expressed, the purpose of the present action by LTR against the commission is
to obtain reimbursement for the Cave judgment which LTR has paid. The requirements of
due process forbid this. The commission has never had its day in court as to whether Cave's
injury was compensable under the act. In its view compensation was not allowable, and the
merit of its position was never litigated. Furthermore, fidelity to the plain provisions of the
Nevada Industrial Insurance Act forecloses LTR here. Once it is determined by the
commission or by a court that a covered employee has sustained a personal injury arising out
of and in the course of his employment, compensation therefor is limited to that provided by
the act. In such case, a common-law action for damages against the employer is prohibited.
NRS 616.270; 616.370; McColl v. Scherer, 73 Nev. 226, 315 P.2d 807. On the other hand, if
a commission or a court decides that the injury is not compensable under the act, a
common-law action for damages by the employee against his employer may sometimes be
permissible. Smith v. Garside, 76 Nev. 377, 355 P.2d 849. The liability of one, commission
or employer, precludes the liability of the other. Here the employee Cave successfully
pursued his claim against his employer LTR on the theory that the injury sustained was not
compensable under the act. When this occurs the Industrial Insurance Fund may not be
invaded. Steinfeld v. State Accident Commission, 141 Ore. 296, 16 P.2d 639.
Affirmed.
____________
81 Nev. 629, 629 (1965) Batchelor v. District Court
JOHN A. BATCHELOR, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Clark, Department No. 4, Respondent.
No. 5007
December 6, 1965 408 P.2d 239
Original proceedings in certiorari.
Certiorari to determine jurisdiction of district court in declaring valid petition for recall of
mayor and ordering city clerk to proceed with recall election. The Supreme Court, Thompson,
J., held that verified petition for recall of mayor which was verified as having correct number
of signatures of electors who voted in last general election sufficiently complied with
constitutional and statutory requirements and that statement in recall petition that mayor had
lost the respect and confidence of the great majority of the citizens in manner in which he
contrived to discharge the City Manager of said City violated the concept of fairness held by a
majority of such citizens satisfied constitutional and statutory mandate that such petition
should set forth reasons why recall is demanded in 200 words or less.
Writ denied, and proceedings dismissed.
Babcock & Sutton, of Las Vegas, for Petitioner.
Denton,, Monsey & Rogers, of Las Vegas, for Respondent.
1. Officers.
Constitutional provision pertaining to recall of public officers requires recall petition to be signed by not
less than 25 percent of qualified electors who voted at last general election for Supreme Court justice.
Const. art. 2, 9.
Verified petition for recall of mayor which was verified as having correct number of signatures of
electors who voted in last general election sufficiently complied with constitutional and statutory
requirements. NRS 306.020, subd. 1; Const. art. 2, 9.
Statement in recall petition that mayor had lost the respect and confidence of the great majority of the
citizens in manner in which he contrived to discharge the City Manager of said city violated the
concept of fairness held by a majority of such citizens" satisfied constitutional and
statutory mandate that such petition should set forth reasons why recall is demanded
in 200 words or less.
of said city violated the concept of fairness held by a majority of such citizens satisfied constitutional and
statutory mandate that such petition should set forth reasons why recall is demanded in 200 words or less.
NRS 306.020, subd. 2; Const. art. 2, 9.
4. Officers.
Constitutional requirement that recall petition set forth reasons why recall is demanded does not require
specificity or appearance of good reason or cause for removal, nor need such statement suggest
misfeasance, nonfeasance or malfeasance. Const. art. 2, 9.
5. Officers.
Merits of reason stated for recall of officer is for electorate not court to determine. Const. art. 2, 9.
OPINION
By an original proceeding in certiorari John A. Batchlor, city councilman and mayor of
Boulder City, Nevada, contends that the Eighth Judicial District Court exceeded its
jurisdiction in declaring valid a petition for his recall and ordering the Boulder City clerk to
proceed with a special recall election. We have concluded that the lower court acted within its
authority and, therefore, dismiss this proceeding.
A verified petition for the recall of Batchelor as city councilman of Boulder City was filed
with the city clerk on September 10, 1965. The petition consisted of a number of copies,
identical in form with the original, except for the signatures and residence addresses of the
signers. NRS 306.030. Complying with the mandate of NRS 306.040(1), the city clerk caused
publication of a notice of hearing on the petition by the district court. The court hearing was
held and at the conclusion thereof the court ruled that the recall petition was sufficient and
valid, and instructed the city clerk to issue a call for a special election. NRS 306.040 (2).
Batchelor's contention that the district court exceeded its jurisdiction in so ruling rests upon
the premise that the recall petition is fatally defective in two respects: First, because it was
verified as having the correct number of signatures of electors who voted in the last general
election, whereas, for statutory compliance, the verification should have specified electors
voting in the municipal election wherein Batchelor was last elected; Second, because the
reasons designated for Batchelor's recall are not sufficient.
the reasons designated for Batchelor's recall are not sufficient. In short, that the petition does
not meet the requirements of NRS 306.020(1) (2).
1. Batchelor was elected to the office of councilman of Boulder City, Nevada at the 1963
municipal election. The printed petition for his recall contained the following statement: We,
the undersigned electors of the City of Boulder City, County of Clark, State of Nevada, who
voted in the last general election held in said city on the 3rd day of November, 1964, at which
a justice of the supreme court was elected for a 6-year term * * *; and the verification of one
of the signers stated, in part: that each signer at the time of signing declared himself to be
and was an elector of the City of Boulder City, who voted in the last general election held in
said city on the 3rd day of November, 1964, at which a justice of the supreme court was
elected for a 6-year term.
[Headnotes 1, 2]
Nevada Constitution, Art. 2, 9, provides in pertinent part: Every public officer * * * is
subject * * * to recall from office by the qualified electors of the * * * municipality, from
which he was elected. For this purpose not less than twenty-five per cent (25%) of the
qualified electors who vote in the * * * municipality electing said officer, at the preceding
election, for justice of the supreme court, shall file their petition, in the manner herein
provided, demanding his recall by the people. * * * As applied to this case we read the
constitutional language to require the recall petition to be signed by not less than 25 percent
of the qualified electors of Boulder City who voted at the last general election for a Supreme
Court justice. The quoted language of the instant petition precisely meets the constitutional
requirement in this respect. Though the statutory language,
1
NRS 306.020(1), strays
somewhat from the constitutional language, it does not carry a different meaning nor
impose a different requirement.
____________________

1
For the purpose of recalling any public officer, there may be filed with the officer with whom the petition
for nomination to such office is required by law to be filed a petition signed by electors who voted in the state, or
in the county, district or municipality electing such officer, equal in number to 25 percent of the votes cast in the
state, or in the county, district or municipality, for the 6-year term as justice of the supreme court at the last
preceding election.
constitutional language, it does not carry a different meaning nor impose a different
requirement. The two are wholly compatible, and neither suggests, as the petitioner contends,
that the recall petition must be signed by 25 percent of the qualified electors who voted at the
municipal election at which the official sought to be recalled was elected. Accordingly, we
find Batchelor's first challenge to the recall petition unsound.
[Headnotes 3-5]
2. The Constitution, Art. 2, 9, and statute NRS 306.020 (2), each requires the recall
petition to set forth reasons why recall is demanded in 200 words or less. The full statement
of the instant petition is footnoted.
2
It is specific and clearThat John A. Batchelor has lost
the respect and confidence of the great majority of the citizens of Boulder City, Nevada, in
that the manner in which he contrived to discharge the City Manager of said city violated the
concept of fairness held by a majority of such citizens. We consider that expression to
satisfy the constitutional and statutory mandate. Wallace v. Tripp, 358 Mich. 668, 101
N.W.2d 312; Westpy v. Burnett, 82 N.J. Super. 239, 197 A.2d 400 (where a statute imposed
the additional requirement that the reason be for a cause connected with his office); contra,
Joyner v. Shuman, Fla.App., 116 So.2d 472; see also Annot., 106 A.L.R. 555, at 564. In so
ruling we do not mean to imply that the statement of reasons called for by the constitution
and statute demand specificity, or the appearance of a good reason or cause for removal;
nor need such statement suggest misfeasance, nonfeasance or malfeasance.
____________________

2
The reasons why said recall is demanded are as follows: We, being ever mindful of the obligation of a
public official to always conduct the public business in a manner of absolute fairness and impartiality, and being
mindful as well that when a public official fails to so conduct such business, a reflection is cast not only upon
himself but all of the members of the public which he serves, do believe that John A. Batchelor has lost the
respect and confidence of the great majority of the citizens of Boulder City, Nevada, in that the manner in which
he contrived to discharge the City Manager of said city violated the concept of fairness held by a majority of
such citizens. That, having lost the confidence of such citizens as aforesaid, his continuance in office is against
the best interests of the City of Boulder City and in opposition to the wishes of the great majority of its citizens.
or cause for removal; nor need such statement suggest misfeasance, nonfeasance or
malfeasance. All that is demanded is that the reason be stated. The merit of that reason as
ground for removal is for the electorate to determine, not the court. The reason, in whatever
manner expressed, presents a political issue for resolution by vote, not a legal question for
court decision. All political power is inherent in the people. Government is instituted for the
protection, security and benefit of the people; and they have the right to alter or reform the
same whenever the public good may require it. Nevada Constitution, Art. 1, 2. In theory, a
public officer need not fear recall if the reason given therefor is frivolous. In such case the
required number of signatures on the petition to force an election should not be obtained and,
if perchance, the required number of signatures is obtained, an intelligent, informed electorate
reading the reason printed on the ballot as required, will not vote to recall him. Our
governmental scheme dignifies the people; a treasured heritage, indeed. The provision for
recall is but one example. We shall not intrude upon the people's prerogative.
By reason of the emergent situation, this court on November 22, 1965, made its decision
orally from the bench (after a brief recess, following oral arguments), denying the writ and
dismissing the proceedings, reserving its right to file a written opinion later. The foregoing
opinion is filed in accordance therewith. The writ is denied, and the proceedings dismissed.
____________
81 Nev. 634, 634 (1965) Walden v. Backus
JOHN L. WALDEN and CECIL L. WALDEN, Appellants v.
SAM BACKUS and VIRGINIA BACKUS, Respondents.
No. 4912
December 8, 1965 408 P.2d 712
Appeal from the Second Judicial District Court, Washoe County; Thomas O. Craven,
Judge.
Action by vendors to recover damages allegedly sustained as result of default of
purchasers in making required payments under terms of conditional real estate sales
agreement. The trial court entered decision from which the vendors appealed. The Supreme
Court, Zenoff, D. J., held that where vendor, following purchasers' default in making required
payments under conditional sales agreement, was reluctant to retake possession but had to do
so when purchasers gave him keys and walked away from premises, and purchasers act in
voluntarily relinquishing premises was act which they were legally bound to do under express
terms of contract, there was no accord and satisfaction such as would preclude action by
vendors to recover damages sustained as result of default.
[Rehearing denied January 4, 1966]
Fry and Fry, of Reno, for Appellants.
Paul A. Richards and Chauncey G. Griswold, of Reno, for Respondents.
1. Accord and Satisfaction.
Accord is agreement whereby one of parties undertakes to give or perform, and others to accept, in
satisfaction of claim, liquidated or in dispute, and arising either from contract or from tort, something other
than or different from what he is, or considers himself, entitled to.
Where purchasers gave nothing other than or different from that which they were already obliged to
render under real estate contract for sale, there could be no accord.
Party availing himself of plea of accord and satisfaction must bear burden of proof and establish clearly
that there was meeting of minds of parties, accompanied by sufficient consideration.
meeting of minds of parties, accompanied by sufficient consideration.
Voluntary relinquishment of real estate by purchasers was not sufficient to support purported accord,
since real estate sale agreement already provided that premises by returned to vendor in event of default.
5. Contracts.
Consideration for agreement is not adequate, when it is mere promise to perform that which promisor is
already legally bound to do.
Where vendor, following purchasers' default in making required payments under conditional sales
agreement, was reluctant to retake possession but had to do so when purchasers gave him keys and walked
away from premises, and purchasers' act in voluntarily relinquishing premises was act which they were
legally bound to do under express terms of contract, there was no accord and satisfaction such as would
preclude action by vendors to recover damages sustained as result of default.
7. Damages.
By filing action to recover damages allegedly sustained as result of default of purchasers in making
required payments under terms of conditional real estate sales contract, vendors elected to seek actual
damages and chose not to rely on liquidated damage clause of agreement.
8. Damages.
Provision of conditional real estate sales agreement that on default of purchasers sum deposited by them
would be forfeited merely gave vendors choice of enforcing their full rights against purchasers or claiming
amount deposited as liquidated damages.
OPINION
On May 13, 1960, a conditional sales agreement was entered into between appellant, as
seller, and respondent, as purchaser, of the Restwell Motel, in Reno. The total purchase price
was $73,500, consisting of a $10,000 down payment, a note for $15,612.29, with sellers as
payees, and the assumption by the buyers of two deeds of trust which were then outstanding.
Buyers took possession of the motel four days later and made one monthly payment. In the
meantime, buyers sold the premises to a third person who defaulted sometime in July by
reason of which buyers regained possession of the motel. At this time, also, payments to
sellers were in default.
Because of this default, sellers notified the title company, the escrow agent, to notify
buyers and demand payment within seven days or the escrow would be closed as per the sales
agreement. The title company wrote a letter to buyers so notifying, but they claim not to have
received such a letter.
Shortly thereafter, however, buyer Sam Backus telephoned seller John Walden and
arranged a meeting of the parties. Pursuant to this phone call, seller went to the motel on
September 28, 1960. The record indicates that the seller urged buyer to make the payments
and retain possession of the premises and that the buyer stated he would not put any more
money into the place, handed the keys to seller and left the premises.
Sellers remained in possession of the motel until March 1961, in the meantime advertising
it for sale in several newspapers. In March 1961 he sold it for a total price of $62,658.79. On
May 18, 1961, sellers made a written demand on buyers for payment of damages incurred as a
result of the default. These damages included an amount representing the delinquent
payments that were agreed to be paid but remained unpaid, repairs to fire damage to the
premises, taxes, the loss occasioned by reason of the resale, and certain operational expenses
which appellant claimed as losses.
A complaint was filed on December 4, 1961, seeking these damages. The answer set up as
a defense, accord and satisfaction. The trial court, sitting without a jury, held that there had
been an accord and satisfaction when the sellers retook possession and kept the down
payment and the payment made, and, therefore, no deficiency was outstanding. It is from that
decision that sellers bring this appeal.
1. At the trial stage of the proceedings the buyers pleaded the affirmative defense of
accord and satisfaction. The district court sustained this defense.
[Headnotes 1, 2]
Reviewing the record, we do not agree that accord and satisfaction was established.
Accord is defined as An agreement whereby one of the parties undertakes to give or
perform, and the others to accept, in satisfaction of a claim, liquidated or in dispute, and
arising either from contract or from tort, something other than or different from what he
is, or considers himself, entitled to."
to give or perform, and the others to accept, in satisfaction of a claim, liquidated or in dispute,
and arising either from contract or from tort, something other than or different from what he
is, or considers himself, entitled to. 1 C.J.S. 1 (a) Accord and Satisfaction, 462. In the
instant case, buyers voluntarily relinquished the premises which they were legally bound to
do under the express terms of the contract. Therefore, since buyers gave nothing other than or
different from that which they were already obliged to render under the contract of sale, there
can be no accord.
[Headnote 3]
The law of Nevada requires that the party availing himself of a plea of accord and
satisfaction must bear the burden of proof and must establish clearly that there was a meeting
of the minds of the parties, accompanied by a sufficient consideration. Wolf v. Humboldt
County, 36 Nev. 26, 131 P. 964 (1913); Western Nat'l Ins. Co. v. Trent, 69 Nev. 239, 247
P.2d 208 (1952). Here it appears that the seller was reluctant to retake possession, that he had
to do so when the buyer gave him the keys and walked away from the premises. Certainly,
there was no clear understanding that such give and take would constitute satisfaction in full
of any obligation under the contract.
[Headnotes 4, 5]
The voluntary relinquishment of the premises by buyers was not enough to support the
purported accord since the sale agreement already provided that the premises be returned to
the seller in the event of a default. Consideration for an agreement is not adequate when it is a
mere promise to perform that which the promissor is already legally bound to do. G.M.A.C.
v. Brown, 38 P.2d 482 (Cal. 1934).
[Headnote 6]
We therefore hold that there was no accord and satisfaction proved.
2. Buyers' alternative contention involves the clause in the sales agreement providing
That in the event of their default under any of the terms of this Contract, Sellers may, at
Sellers option and without Notice, declare the unpaid portion of the Purchase price of said
Premises, together with the interest thereon, immediately due and payable, whereupon
Sellers may withdraw from said Escrow Account all Documents theretofore deposited
therein by the Parties, and said Escrow Account between the Parties hereto shall be
closed, and all of Buyers rights under this Contract shall be terminated, and Sellers shall
have and hereby are given the right to retake or recover, at Buyers expense, possession of
said Premises with or without process of law, and Sellers shall retain as liquidated
damages, and not as a penalty, and as liquidated damages for Buyers use and occupancy
of said Premises, all monies theretofore paid to or for Sellers by them, but without
prejudice to any other rights at law or in equity which Sellers shall or may have or take
against Buyers on account of such default."
event of their default under any of the terms of this Contract, Sellers may, at Sellers option
and without Notice, declare the unpaid portion of the Purchase price of said Premises,
together with the interest thereon, immediately due and payable, whereupon Sellers may
withdraw from said Escrow Account all Documents theretofore deposited therein by the
Parties, and said Escrow Account between the Parties hereto shall be closed, and all of Buyers
rights under this Contract shall be terminated, and Sellers shall have and hereby are given the
right to retake or recover, at Buyers expense, possession of said Premises with or without
process of law, and Sellers shall retain as liquidated damages, and not as a penalty, and as
liquidated damages for Buyers use and occupancy of said Premises, all monies theretofore
paid to or for Sellers by them, but without prejudice to any other rights at law or in equity
which Sellers shall or may have or take against Buyers on account of such default.
(Emphasis supplied.)
[Headnotes 7, 8]
By reason of the quoted clause the buyers contend that their damages on default are
liquidated, thereby precluding the sellers from seeking actual damages in this case. We need
not decide the meaning of the liquidated damages provision of the contract, nor attempt to
resolve the apparent ambiguity of the language used in that proviso. By filing this action the
sellers elected to seek actual damages and chose not to rely upon the liquidated damage
clause of the agreement. The provision * * * that upon default of the purchasers the sum * *
* deposited by them would be forfeited, merely gave the sellers the choice of enforcing their
full rights against the buyers or of claiming the amount deposited as liquidated damages.
Tolboe v. Peccole, 75 Nev. 86, 335 P.2d 77 (1959). See also Royer v. Carter, 233 P.2d 539
(Cal. 1951).
As we have determined that the lower court was in error in finding an accord and
satisfaction, this case must be remanded for a determination of the sellers' actual damages, if
any, sustained by reason of the buyers' default.
actual damages, if any, sustained by reason of the buyers' default. Credit shall be given to the
buyers for monies paid by them to the sellers, in accordance with the contract, against the
amount of actual damages, if any, determined by the lower court to be due sellers.
____________
81 Nev. 639, 639 (1965) Pacheco v. State
HECTOR CHARLES PACHECO, Appellant, v.
No. 4901
December 13, 1965 408 P.2d 715
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F. Sexton,
Judge.
Defendant who had been convicted of robbery sought new trial upon ground of newly
discovered evidence. The trial court denied motion and appeal was taken. The Supreme
Court, Thompson, J., held that conclusory statement in moving papers that new evidence has
been discovered, material to defense, by defendant, and that it could not with reasonable
diligence have been discovered and procured at the trial was not sufficient to warrant granting
of new trial.
Affirmed.
Robert Santa Cruz, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City; Edward G. Marshall, District
Attorney, Clark County, and Ivan R. Ashleman, Deputy District Attorney, of Las Vegas, for
Respondent.
1. Criminal Law.
Statute authorizing court to grant new trial on ground of newly discovered evidence requires factual
showing that evidence is newly discovered, material to defense and could not with reasonable diligence
have been discovered and procured for trial and conclusions will not suffice. NRS 175.535, subd. 7.
2. Criminal Law.
Newly discovered evidence which is cumulative may not be enough to warrant another trial. NRS
175.535, subd. 7.
3. Criminal Law.
To warrant new trial, alleged newly discovered evidence must be such as to render different result
probable on retrial. NRS 169.110, 175.535, subd. 7.
4. Criminal Law.
Motion for new trial on ground of newly discovered evidence calls for exercise of discretion by trial court
and, on review, inquiry is whether an abuse of discretion has occurred. NRS 169.110, 175.535. subd.
7.
5. Criminal Law.
Conclusory statement in moving papers that new evidence has been discovered, material to defense, by
defendant, and that it could not with reasonable diligence have been discovered and procured at the trial
was not sufficient to warrant granting of new trial. NRS 169.110, 175.535, subd. 7.
6. Criminal Law.
Facts bearing upon reasonable diligence to procure evidence for trial must be shown by best evidence
possible on motion for new trial. NRS 175.535, subd. 7.
OPINION
Pacheco, who was convicted of robbery, sought a new trial upon the ground of newly
discovered evidence. NRS 175.535(7).
1
His motion was denied and this appeal followed.
We affirm.
[Headnotes 1-4]
The statute, quoted below, requires the movant to persuade the trial court that the evidence
is newly discovered, material to his defense, and could not with reasonable diligence have
been discovered and procured for the trial. A factual showing of each requirement must be
made. Conclusions will not suffice. People v. Beard, 46 Cal.2d 278, 294 P.2d 29 (1956);
State v. Love, 77 Ariz. 46, 266 P.2d 1079 (1954); State v. O'Brien, 66 Wash. 219, 119 P. 609
(1911); Gates v. State, 160 Neb. 722, 71 N.W.2d 460 (1955); Balestreri v. United States, 224
F.2d 915 {9th Cir.
____________________

1
The statute gives the trial court power to grant a new trial when new evidence shall have been discovered
material to the defendant and which he could not, with reasonable diligence, have discovered and procured at
trial.
224 F.2d 915 (9th Cir. 1955). Additional standards to those named by statute have been
imposed by judicial decision in California where the statute is the same as ours. There the
court has ruled that the evidence must not be cumulative, and that it be such as to render a
different result probable on retrial. People v. Beard, supra. We, also, have acknowledged that
newly discovered evidence which is cumulative may not be enough to warrant another trial,
State v. Randolph, 49 Nev. 241, 242 P.2d 697 (1926); State v. Fouquette, 67 Nev. 505, 221
P.2d 404 (1950), but have not yet expressly approved the further standard that the evidence be
such as to render a different result probable on retrial. We think such further standard proper
and now approve it as a corollary of the rule of harmless error. NRS 169.110.
2
Consequently, this ground for a new trial calls for an exercise of discretion by the trial court
and, on review, the inquiry is whether an abuse of discretion has occurred. State v. McNeil,
53 Nev. 428, 4 P.2d 889 (1931).
[Headnotes 5, 6]
Tested by these standards, Pacheco's motion for a new trial could not succeed. Facts
bearing upon reasonable diligence to procure the evidence for trial were not offered to the
lower court for its consideration. The record discloses only a conclusory statement in the
moving papers that new evidence has been discovered, material to the defense, by the
defendant, and which he could not with reasonable diligence have discovered and procured at
the trial. This unsupported conclusion cannot persuade. State v. Love, 77 Ariz. 46, 266 P.2d
1079 (1954); Balestreri v. United States, 224 F.2d 915 (9th Cir. 1955). Facts must be shown
by the best evidence possible. People v. Beard, 46 Cal.2d 278, 294 P.2d 29 {1956).
____________________

2
NRS 169.110 reads: No judgment shall be set aside, or new trial granted, in any case on the ground of
pleading 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
(1956). This failure alone bars the granting of a new trial here.
The newly discovered evidence was presented to the lower court through the fact affidavit
of Stephen Joseph Raso who did not testify at the trial. If believed, one might possibly be
persuaded that Pacheco was at his home, and in bed, at the time of the robbery. Similar
evidence was given at the trial by relatives of Pacheco and apparently rejected by the jury.
Counsel argues with force that a retrial should occur and another jury be given an opportunity
to hear Raso testify, as he would be a disinterested witnessat least in the sense of not
being related to Pacheco. Without question, Raso's testimony would be material to the issue
of guilt, and counsel's argument, therefore, may not be cast aside as insignificant. Yet,
without a factual showing that reasonable diligence was used to produce the witness Raso at
trial, the lower court was not called upon to decide whether a retrial should be denied because
the new evidence was, perhaps, cumulative or, in any event, that such evidence, had it been
produced, would probably not have changed the result. Nor do we consider those questions.
We order that court-appointed counsel for appellant be given the certificate specified in
NRS 7.260 (3) (4).
Affirmed.
____________
81 Nev. 642, 642 (1965) Boyd v. McDonald
WILLIAM BOYD AND RUTH BOYD, Husband and Wife, Appellants, v. FRANK R.
McDONALD and MARY M. McDONALD, Husband and Wife, Respondents.
No. 4909
December 13, 1965 408 P.2d 717
Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Judge.
Purchasers of motel brought action for declaratory judgment against subsequent grantees
of vendors of motel. The trial court granted declaratory relief holding land retained by
vendors was burdened with implied easements, and grantees of vendors appealed. The
Supreme Court, Badt, J., held that easements granted for light and air and for sign some
distance from lot boundary were contrary to law, and that additional findings were
necessary to determine if easements for driveway and patio existed.
land retained by vendors was burdened with implied easements, and grantees of vendors
appealed. The Supreme Court, Badt, J., held that easements granted for light and air and for
sign some distance from lot boundary were contrary to law, and that additional findings were
necessary to determine if easements for driveway and patio existed.
Coulthard & Smith and Samuel P. Cowley, Jr., of Las Vegas, for Appellants.
George LaVern Albright, of Las Vegas, for Respondents.
1. Easements.
Easement is right, distinct from ownership, to use in some way the land of another.
2. Easements.
Easement is an incorporeal hereditament, a servitude imposed upon corporeal property, and not a part
of it, and it gives no right to possess land upon which it is imposed, but right merely to party in whom
easement is vested to enjoy it.
3. Easements.
Easements may be created by express agreement, by prescription, or by implication.
4. Easements.
Intention of parties as shown by instrument and situation with reference to instrument determines
question of implied easement.
5. Easements.
Easement by implication is in effect easement created by law and is grounded in court's decision in
reference to particular transaction in land where owner of two parcels had so used one parcel to the benefit
of other parcel that on selling the benefited parcel purchaser could reasonably have expected, without
further inquiries, that these benefits were included in sale.
6. Easements.
In determining whether expectations of purchaser on which he bases claim of easement by implication are
reasonable, factors to be considered are purchase price, relations between purchaser and vendor severing
his parcel, conduct of persons in similar positions and occurrences which would put reasonable men
purchasing property on notice at least to inquire further as to extent of his purchase.
7. Easements.
Easement created by implication at time of initial severance of dominant and servient tenements vests
then, and absent evidence of termination easement cannot be diminished or abridged.
8. Easements.
Although wall and roof of motel sold extended 2.6 feet onto edge of lot retained by grantor and wall patio
extended 12 feet onto the retained lot, granting easement, as against subsequent grantee, for building and
patio and for light and air over 6 feet of retained lot was unjustified.
9. Easements.
No implied easement of a right to air and light can be implied from any length of continuous enjoyment.
10. Easements.
Purchaser of motel could not have reasonable expected that grantor would have included as benefit
implied easement to use part of lot retained for motel sign where sign was some distance from boundary of
motel lot.
Where from findings of trial court, appellate court could not determine whether purchasers of motel had
right to expect that driveway crossing corner of lot retained by grantor and walled patio extending 12 feet
onto lot retained by grantor were included in bargain, action was remanded for further findings.
OPINION
Appellants here, defendants below, William Boyd and his wife Ruth, appeal a declaratory
judgment of the Eighth Judicial District Court, that a parcel of the Boyds' land, hereinafter
referred to as Lot 121 is burdened with easements benefiting adjacent Lot 22 owned by
plaintiffs below, Frank R. McDonald and his wife Mary.
Initially, the McDonalds purchased Lot 22 and the motel thereon from Larry and Lottie
Johnson. At that time, the Johnsons owned both Lots 22 and 121 and were using a corner of
Lot 121 for an alleged private extension of the motel's driveway.
1
A motel sign also was on
Lot 121, though some distance from the boundary between Lot 121 and Lot 22, and the west
wall and roof of the motel extended 2.6 feet onto the east edge of Lot 121.2 A walled patio
spread another 12 feet onto Lot 121.
____________________

1
The extent of such alleged private extension of the motel's driveway is better indicated by Mr. Johnson's
testimony. (He had first testified that when he operated the motel the entrance was off Hacienda Avenue. That
was the main driveway and main entrance.) There were tracks across government Lot 121 that led to the
motel. I used to park my car at the end of the motel
of Lot 121.
2
A walled patio spread another 12 feet onto Lot 121. The following map, drawn
approximately according to scale, copied from a map received in evidence, indicates the
situation.
See book
diagram of map for motel A few months later, the Johnsons sold Lot 121 to the Boyds, who
eventually demanded that the McDonalds cease maintaining the alleged encroachments
and trespasses on Lot 121.
____________________
and when I drove out I drove across that lot on to the highway. The customers did not use that driveway. It was
not blacktopped. It was just two tire tracks across the desert. Cars had been driven out and in there.
On cross-examination, on being asked how he used the little roadway going directly out to Highway 91,
he answered: To drive my car when I went in to town. I parked the car at the end of the motel and had to drive
out across. I used it as an exit, Myself. (Emphasis supplied.) This falls far short of even a reasonable
necessity.

2
The 2.6-foot overhang is not contested by appellants. They thus accept this as an implied easement.
A few months later, the Johnsons sold Lot 121 to the Boyds, who eventually demanded
that the McDonalds cease maintaining the alleged encroachments and trespasses on Lot 121.
In turn the McDonalds instituted the action below to determine their rights in the disputed
property.
By its amended judgment the court ordered, adjudged and decreed:
1. That the plaintiffs have an easement for their building and patio and for light and air
adjacent to their building over, under and across the following described parcel of land: The
East six (6) feet of Government Lot 121, said Government Lot being located in the Southwest
Quarter (SW 1/4) of the Northwest Quarter (NW 1/4) of Section 28, Township 21 South,
Range 61 East, M.D.B. & M., County of Clark, State of Nevada.
2. That the plaintiffs have an easement for the purpose of a roadway for ingress and
egress over and across the following described parcel of Government Lot 121: The north
Forty (40) feet of the East six (6) feet of Government Lot 121, * * *.
3

Said easement being further described as follows: (Emphasis supplied.) COMMENCING
at the Southwest corner of the Northwest Quarter (NW 1/4) of said Section 28, thence South
890218 East along the South line of Government Lot 121, a distance of 149.46 feet to a
point, said point being the TRUE POINT OF BEGINNING; thence continuing South
890218 East a distance of 51.00 feet to the Southeast corner of said Government Lot 121;
thence North 003342 East along the East line of said Government Lot 121 a distance of
43.00 feet; thence in a Southwesterly direction to a distance of 66.5 feet more or less to a
point in the aforementioned South line, said point being the TRUE POINT OF
BEGINNING.
4
The amended judgment further ordered, adjudged and decreed "that the
plaintiffs have an easement to maintain a motel sign on, over, under and across
Government Lot 121 * * *.

____________________

3
It will be noted that the second easement duplicates and overlaps the first easement.

4
It will be noted that this further description is not a further description of the parcel just theretofore
described but is a description of an entirely different parcel, being a parcel situated in the southeast corner of Lot
121 abutting on lot 22 to the east and on Hacienda Avenue to the south.
The amended judgment further ordered, adjudged and decreed that the plaintiffs have an
easement to maintain a motel sign on, over, under and across Government Lot 121 * * *. Said
sign may be maintained a distance of eighty (80) feet West from the East line of Government
Lot 121; said sign shall be maintained as far to the South line of said Government Lot 121 as
possible as to conform with City, County, State or Federal regulations or ordinances. Said
easements shall include the right to lay cables or other necessary electrical fixtures, over,
under and across Government Lot 121 to said sign.
We have concluded that the lower court's holdings are contrary to applicable law and
therefore must be reversed and remanded for additional findings in line with general rules set
forth infra.
Both parties have proceeded throughout on grounds of implied easements. We fear,
however, that they have so confused that doctrine that we must begin by examining it at some
length.
[Headnotes 1-4]
An easement is a right, distinct from ownership, to use in some way the land of another.
Kutschinski v. Thompson, 101 N.J.Eq. 649, 138 A. 569. It is an incorporeal hereditament, a
servitude imposed upon corporeal property, and not a part of it. It gives no right to possess the
land upon which it is imposed, but a right merely to the party in whom the [easement] is
vested to enjoy [it]. Chollar-Potosi Mining Co. v. Kennedy, 3 Nev. 361. Easements may be
created by express agreement, by prescription (a condition generally analogous to adverse
possession), or by implication. As to the last, with which we are concerned here, it generally
is said: the three essential characteristics of an easement by implication are (1) unity of title
and subsequent separation by a grant of the dominant tenement; (2) apparent and continuous
user; and (3) the easement must be necessary to the proper or reasonable enjoyment of the
dominant tenement. Rogers v. Cation, 9 Wash.2d 369, 115 P.2d 702. It is this requirement of
necessity which often presents to the courts a major difficulty.
difficulty. There is wide variance as to the degree of necessity required, though the weight of
modern authority only requires reasonable necessity. On examination, we feel an even
preferable standard is to construe necessity as really meaning intent. The reason that
absolute necessity is not essential is because fundamentally such a grant by implication
depends on the intention of the parties as shown by the instrument and the situation with
reference to the instrument, and it is not strictly the necessity of [the easement] that creates
it.' 2 Thompson, Real Property, Perm.Ed., 337, p. 84; Marshall v. Martin, 107 Conn. 32,
139 A. 348; Rischall v. Bauchmann, 132 Conn. 637, 46 A.2d 898, 165 A.L.R. 559.
Ascertaining intent, however, presents further difficulties. In Dressler v. Isaacs, 217 Or.
586, 343 P.2d 714, the Oregon Supreme Court presented this analysis:
* * * It is evident that since we cannot find the grantor's real intent, we must draw the line
between absolute need and mere inconvenience at the point where it will satisfy our idea of
sound policy. Broadly stated, the inference as to intention which is made is influenced
largely by considerations of public policy in favor of land utilization.' 4 Restatement,
Property, Servitudes, 476, comment g.
* * * * *
We think that the proper adjustment of the conflicting claims of the parties in this type of
case can be arrived at more directly by attempting to determine what a reasonable grantee
would be justified in expecting as a part of his bargain when he purchases land under the
particular circumstances. Upon a division of land held under one title the grantee of the quasi
dominant parcel is not entitled in every case to an easement predicated upon a previous use
by the grantor. He must have reason for assuming that a right to continue the previous use of
the quasi easement is a part of the bargain. * * * Since, in this class of cases, direct testimony
as to the intent of the parties is absent or unsubstantial, we must come at the problem by
considering whether reasonable men would regard the claimed easement as a legitimate
incident of the bargain.
reasonable men would regard the claimed easement as a legitimate incident of the bargain.
* * * Looked at in this light, the test of reasonable necessity may be restated in terms of
reasonable expectation. * * * Although we purport to find the grantor's intent in such cases, it
is probably more accurate to say that the easement which is finally recognized through the
process of construction is law created rather than grantor created. Under these circumstances,
we are entitled to look at the reasonable expectations of a reasonable man receiving a
conveyance of land.
[Headnotes 5, 6]
We emphasize that an easement by implication is, in effect, an easement created by law. It
is grounded in the court's decision that as to a particular transaction in land, the owner of two
parcels had so used one to the benefit of his other that, on selling the benefited parcel, a
purchaser could reasonably have expected, without further inquiry, that these benefits were
included in the sale. Minute encroachments generally provide classic examples of easements
by implication. Certainly one bargaining for a building can reasonably expect that his
purchase includes a right to leave a particular wall standing. Therefore, to be considered are
the purchase price,
5
relations between buyer and the seller now severing his heretofore
uniform parcel,
6
conduct of persons in similar positions, and occurrences which would put a
reasonable man purchasing property on notice at least to inquire further as to the extent of his
purchase. In the ultimate, a court must decide whether the situation at the time of severance
from the common owner was such as now to require judicial intervention, an intrusion upon
the firm lines already drawn by a writing between the parties, and a possible bypassing of
the Recording Acts.
____________________

5
See Wilbur v. Council Bluffs, 247 Iowa 268, 73 N.W.2d 112.

6
Plaintiffs here seek to rely on details of the transaction between the Johnsons and the subsequent purchasers
of the severed parcel, the Boyds. This latter sale is immaterial as to the creation of easement by implication,
which looks only to conditions at the original severance, i.e., the sale by the Johnsons to the McDonalds. At
most, a later sale by the original owner of both parcels might offer some indication of that owner's intent at the
time he sold the first parcel.
writing between the parties, and a possible bypassing of the Recording Acts. Such moves are
not to be effected lightly.
The difficulty with the instant case is an apparent total confusion by the parties as to what
had to be shown to establish an easement by implication. Plaintiffs' most strenuous argument
below and on appeal, was that they thought their purchase of the motel and Lot 22 included
the area designated Lot 121.
7
If this be true, plaintiffs cannot claim any implied easements,
since the foundation of an easement by implication is the belief one can use land owned by
another.
8
Defendants, on the other hand, insist plaintiffs were fully aware of the property
lines at time of purchase. Johnson, defendants' witness, testified positively to this.
[Headnote 7]
In granting the easements, the trial court altered conditions existing at the time the
common owner, Johnson, severed. Thus the addition to the driveway allowed below is but a
portion of the alleged private driveway existing when the Johnsons sold to the McDonalds;
the motel sign now can be moved to a different location on Lot 121; and six feet onto Lot
121 was provided for the motel's west wall, whereas the original encroachment was a 2.6-foot
wall-and-roof overhang and a 12-foot patio. If an easement is created by implication at the
time of initial severance, it then vests, and, absent evidence of termination, it cannot be
diminished or abridged. See N. W. Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 123
P.2d 771. Plaintiffs either were entitled to easements or they were not; if they were, then
under the facts presented they deserve them in full, not three compromised versions.
[Headnotes 8, 9]
The court granted plaintiffs an easement of six feet for their building and patio and for
light and air adjacent to their building * * *."
____________________

7
Both Mr. and Mrs. McDonald testified positively and vehemently to this.

8
Plaintiffs at no time alleged express easements, or easements by prescription. Nor have they sought
rescission for misrepresentation or reformation due to mutual mistake.
adjacent to their building * * *. On no grounds can this be sustained. As noted, the west wall
and roof of the motel encroach 2.6 feet onto defendants' Lot 121 and a walled patio extends
another 12 feet. The 2.6-foot overhang now is conceded to plaintiffs. Using the rule of
reasonable expectations herein approved, the court might have found an implied easement
also existed for the 12-foot patio. No such finding was made. It is reasonable to infer that the
trial court rejected respondents' claims to a 12-foot easement for the patio. Instead, both the
overhang and patio apparently were considered together and resulted in a six foot grant
which included an easement for light and air. The preponderance of modern authority
refuses to recognize an implied easement for light and air. Taliaferro v. Salyer, 162
Cal.App.2d 685, 328 P.2d 799; Mannino v. Conoco Realty Corp., 86 N.Y.S.2d 855. We
agree, and accept the rationale presented nearly a century ago, in 1874, by Chief Justice Gray
in Keats v. Hugo, 115 Mass. 204, 15 Am.Rep. 80:
The reasons upon which it has been held that no grant of a right to air and light can be
implied from any length of continuous enjoyment
[9]
are equally strong against implying a
grant of such a right from the mere conveyance of a house with windows overlooking the
land of the grantor. To imply the grant of such a right in either case, without express words,
would greatly embarrass the improvement of estates, and, by reason of the very indefinite
character of the right asserted, promote litigation. The simplest rule, and that best suited to a
country like ours, in which changes are taking place in the ownership and the use of lands, is
that no right of this character can be acquired without express grant of an interest in, or
covenant relating to, the lands over which the right is claimed.
[Headnote 10]
In summary, plaintiffs have requested a declaration of their rights to three disputed areas
of an adjacent lot: a building encroachment, a driveway extension, and the situs of a sign.
____________________

9
i.e., an easement by prescription.
the situs of a sign. Plaintiffs allege they are entitled to an easement in these areas. No
showings were made of either express easements, or easements by prescription. Thus we
must look to implied easements. To gain these, plaintiffs must prove that, as ordinary
purchasers, they were correct in having reasonably expected, without further inquiry, that the
asserted uses in what was then their sellers' retained land were included as a benefit of the
bargain struck for the motel and Lot 22. On two extremes are the wall-and-roof encroachment
and the sign. The 2.6-foot encroachment is a typical implied easement and defendants so
concede. The sign, on the other hand, was so removed from the boundary of Lot 22 that no
reasonable purchaser could have considered it part of the transaction without at least some
inquiry. If inquiry had been made, the result, if proved, might have been an express easement,
or perhaps an allegation of misrepresentation. What cannot be, however, is an implied
easement.
[Headnote 11]
The matters of the driveway
10
and the patio are not as clear.
11
Here the court must
determine, as a question of fact, whether the McDonalds, as reasonable purchasers knowing
their boundary lines, had a right to expect, without further inquiry, that their purchase insured
continued use in the added driveway and the patio, though these were not on their land. From
the findings below, we have no way of determining whether these facts were ever decided.
Therefore we must reverse and remand for a new trial. It is so ordered.
12
Thompson, J., and
Zenoff, D. J., concur.

____________________

10
We note that ingress to and egress from the motel still are possible without the disputed addition to the
driveway. Thus this added portion does not assume the status of a way of necessity. If we read the photographs
correctly, it does not even show a reasonable necessity. See Johnson's testimony supra.

11
Cf. Owsley v. Hamner, 36 Cal.2d 710, 227 P.2d 263, 24 A.L.R.2d 112, where the implied easement was
as contemplated [by lessor and lessee] when the lease was made.

12
Throughout, of course, we have confined discussion to rules applicable to grants of easements by
implication--the sole concern of the instant facts. We assume, however, that a similar underlying principle of
reasonable expectation would apply to reservations of easements by implication. Montesa v. Gelmstedt, 70
Nev. 418, 270 P.2d 668; Adams v. Cullen, 44 Wash.2d 502, 505, 268 P.2d 451, 453; Hellberg v. Coffin Sheep
Co., 404 P.2d 770, 773 (Wash. 1965).
____________
81 Nev. 653, 653 (1965) Allis v. Allis
LOUIS ALLIS, Jr., Appellant, v. LAURIL
MITCHELL ALLIS, Respondent.
No. 4915
December 13, 1965 408 P.2d 916
Gabrielli, Judge.
Divorce case. The lower court entered order directing husband to pay $18,500 in fees to
his wife's attorney and appeal was taken. The Supreme Court, Thompson, J., held that award
of fees made solely because of unequal financial position of husband who was worth
approximately three-quarters of a million dollars and wife who possessed $25,000 to $40,000
in liquid assets was improper.
Reversed.
Vargas, Dillon, Bartlett & Dixon, and Melvin Brunetti, of Reno, for Appellant.
Peter Echeverria and Earl S. Wylder, of Reno, for Respondent.
1. Divorce.
Procedure whereby preliminary order for $6,500 counsel fee was made with court reserving jurisdiction
to make further allowance following trial and, upon conclusion of case, additional allowance of $12,000
was made was proper especially where issue of fees for counsel was raised by pleadings thereby obviating
any possible objection on ground that counsel's services had already been rendered. NRS 125.040.
2. Divorce.
Matter of counsel fees for wife in divorce case falls within trial court's discretion.
3. Divorce.
Discretion of trial court with respect to allowance of counsel fees for wife in divorce action is abused
when order for fees patently rests upon husband's ability to pay rather than upon wife's
need therefor.
81 Nev. 653, 654 (1965) Allis v. Allis
fees patently rests upon husband's ability to pay rather than upon wife's need therefor.
4. Divorce.
In ruling on wife's application for counsel fees in divorce action, court must evaluate evidence offered to
show her need, or lack of it, and decide on that evidence alone whether allowance should be made, and
husband's wealth is not a relevant consideration.
5. Divorce.
Only when court determines that wife is in necessitous circumstances and is entitled to award for counsel
fees in divorce action may court consider husband's financial position along with other evidence in fixing
amount to be allowed.
6. Divorce.
Within legitimate area of discretion, trial court's view as to amount of counsel fees to be allowed wife in
divorce action is accorded great respect on review.
7. Divorce.
Standard of necessitous circumstances with respect to wife seeking counsel fees in divorce action carries
reasonable flexibility, consonant with purpose of suit money, that wife be afforded her day in court without
destroying her financial position.
8. Divorce.
Award of counsel fees to wife, who possessed $25,000 to $40,000 in liquid assets, solely because of
unequal financial position of wife and husband who was worth approximately three-quarters of a million
dollars was improper.
9. Divorce.
Order granting preliminary counsel fees is not appealable nor may its propriety be reviewed by certiorari.
NRCP 72(b).
10. Divorce.
Final order for counsel fees in divorce case must be made before appellate review is permitted. NRCP
72(b).
11. Divorce.
Inasmuch as amount of fee fixed for wife's counsel in divorce case was directly influenced by husband's
wealth, that amount might not be deemed indicative of reasonable value of services rendered by wife's
attorney, should that issue arise.
OPINION
[Headnote 1]
By this appeal we are asked to reverse an order directing a husband to pay $18,500 in
fees to his wife's attorney.1 The request rests on the proposition that the wife was not
shown to be in necessitous circumstances.
81 Nev. 653, 655 (1965) Allis v. Allis
attorney.
1
The request rests on the proposition that the wife was not shown to be in
necessitous circumstances. The financial position of wife and husband was disparate. The
wife possessed $25,000 to $40,000 in liquid assets, while the husband was worth
approximately three-quarters of a million dollars. In directing the husband to pay the wife's
counsel fees, the lower court expressed its view that the great difference in their financial
position was relevant to the issue of the wife's need. But for that difference we presume that
an award would not have been made, because one having $25,000 to $40,000 in liquid assets
is not, per se, in need of money to pay counsel. Thus the question is squarely presentedis
the husband's greater wealth relevant to the issue of the wife's need for money to pay her
counsel's fee? Our answer is no. Accordingly, we reverse the order entered below.
[Headnotes 2-5]
Counsel fees for the wife in a divorce case is a problem falling within the area of the trial
court's discretion. However, that discretion is abused when the order for fees patently rests
upon the husband's ability to pay, rather than upon the wife's need therefor. In ruling on a
wife's application for fees, the court is obliged to evaluate the evidence offered to show her
need, or lack of it, and decide on that evidence alone whether an allowance should be made.
In short, the judicial inquiry is directed to the wife's financial position. At this point, the
husband's wealth is not a relevant consideration. Only when the court determines that the wife
is in necessitous circumstances and entitled to an award for counsel fees, may it consider the
husband's financial position along with other evidence in fixing the amount to be allowed
for that purpose.
____________________

1
A preliminary order for $6,500 counsel fees was made, the court reserving jurisdiction to make a further
allowance following trial. Upon conclusion of the case, an additional allowance of $12,000 was made.
Procedurally this was proper. Furthermore, we note that the issue of fees for the wife's counsel was raised by the
pleadings, NRS 125.040; Cranmer v. Cranmer, 79 Nev. 128, 379 P.2d 474 (1963), thereby obviating any
possible objection on the ground that counsel's services had already been rendered.
81 Nev. 653, 656 (1965) Allis v. Allis
the amount to be allowed for that purpose. Such, we believe, has been the law of this state for
many years. Lake v. Lake, 16 Nev. 363 (1882); Effinger v. Effinger, 48 Nev. 205, 228 P. 615
(1924); Whitman v. Moran, 54 Nev. 276, 13 P.2d 1107 (1932); Cranmer v. Cranmer, 79 Nev.
128, 379 P.2d 474 (1963).
[Headnotes 6-8]
Within the legitimate area of discretionthe evaluation of evidence concerning the wife's
financial positionthe trial court's view is accorded great respect on review. For example,
should it appear that the wife's assets are modest and not liquid, it may, in some instances, be
proper to order the husband to pay her counsel's fee rather than to demand that she borrow
money for that purpose. The standard of necessitous circumstances carries a reasonable
flexibility, consonant with the purpose of suit moneythat a wife be afforded her day in
court without destroying her financial position. Here, however, the award of fees was
candidly made solely because of the unequal financial position, and not out of concern that
the wife would be precluded from defending the case if an allowance was not made. This
cannot be justified.
The lower court suggested that this case falls somewhere in between the holdings of
Cranmer v. Cranmer, 79 Nev. 128, 379 P.2d 474 (1963); Effinger v. Effinger, 48 Nev. 205,
228 P. 615 (1924); Black v. Black, 47 Nev. 346, 221 P. 239 (1924); and Engebretson v.
Engebretson, 75 Nev. 237, 338 P.2d 75 (1959). None of those cases may be read to support
the lower court's ruling here, nor do they indicate a trend toward the establishment of a new
standard for the determination of necessitous circumstances. The contrary is true. The recent
decision of Cranmer, supra, held, inter alia, that a wife possessing assets worth about
$147,000 was not in necessitous circumstances and, for that reason, reversed a fee allowance
of $11,000 for her counsel. The rationale of Effinger, supra, squarely supports our conclusion.
There the husband was worth about $300,000. The wife enjoyed an annual trust fund income
of $8,000 and had about $900 in the bank. This court reversed an order directing the
husband to pay a $2,500 fee to counsel for the wife, noting that the husband's ability to
pay was immaterial, as the wife had not shown her need.
81 Nev. 653, 657 (1965) Allis v. Allis
an order directing the husband to pay a $2,500 fee to counsel for the wife, noting that the
husband's ability to pay was immaterial, as the wife had not shown her need. In Black, supra,
the wife's motion for fees on appeal was denied, though her financial position was quite
limited; and Engebretson, supra, was not concerned with suit money at allonly temporary
alimony, the court indicating that a different standard might be applicable in resolving that
issue.
[Headnotes 9, 10]
We are aware of the unfortunate consequences to counsel for the wife which may follow
our decision, for it may be that the preliminary award was paid to him and perhaps dissipated
by this time. An order granting preliminary fees is not appealable, NRCP 72(b); Engebretson
v. Engebretson, 73 Nev. 19, 307 P.2d 115 (1957); Harrison v. Harrison, 54 Nev. 369, 17 P.2d
693 (1933); Kapp v. Kapp, 31 Nev. 70, 99 P. 1077 (1909)nor may its propriety be reviewed
by certiorari, Kapp v. District Court, 31 Nev. 444, 103 P. 235 (1909). A final order for fees
must be made before appellate review is permitted, and this does not occur until the case is
completed below, for until that time the trial court may adjust the award. Lake v. Lake, 16
Nev. 363 (1882). When the preliminary fee ordered is paid to the wife's counsel, caution
demands that it be held for possible restitution, as a reviewing court may later rule that such
payment should not have been ordered.
[Headnote 11]
Finally, we think it proper to note that, as the amount of the fee fixed for the wife's counsel
in this case was directly influenced by the husband's wealth, that amount may not now be
deemed indicative of the reasonable value of the services rendered by the wife's attorney,
should that issue arise in the future.
2

Reversed.
____________________

2
Counsel representing the wife on this appeal were not counsel for her in the lower court.
____________
81 Nev. 658, 658 (1965) Williams v. Jensen
EMMETT WILLIAMS and CLARICE M. WILLIAMS,
Appellants, v. MINNIE JENSEN, Respondent.
No. 4917
December 15, 1965 408 P.2d 920
Appeal from order granting motion for summary judgment. First Judicial District Court,
Douglas County; Frank B. Gregory, Judge.
Action for relief from obstruction placed across right-of-way allegedly owned by plaintiffs.
The trial court entered summary judgment for defendant and plaintiffs appealed. The
Supreme Court, Zenoff, D. J., held that where plaintiffs brought prior action against
defendant for obstruction placed across right-of-way but did not prosecute suit for over five
years and on motion of defendant action was dismissed with prejudice, plaintiffs were
precluded from bringing new action when defendant again placed obstruction on
right-of-way, since the causes of actions were the same.
Affirmed.
John Chrislaw, of Minden, for Appellants.
Belford & Anglim, and Samuel W. Belford, of Reno, for Respondent.
1. Judgment.
Dismissal of an action under rule concerned with dismissal of actions for want of prosecution can
preclude a subsequent action based on same claim for relief. NRCP 41(e).
2. Judgment.
Rule that same cause of action exists when there is identity of facts essential to maintenance of the two
actions does not mean that when facts are not identical the causes of action are not the same.
3. Judgment.
Dismissal of action under rule concerned with dismissal of actions for want of prosecution, with prejudice
has effect of adjudication on merits. NRCP 41(e).
4. Judgment.
Where plaintiffs brought prior action against defendant for obstruction placed across right-of-way
allegedly owned by them but did not prosecute suit for over five years and on motion of defendant action
was dismissed with prejudice, plaintiffs were precluded from bringing new action when defendant again
placed obstruction on right-of-way since causes of action were the same.
placed obstruction on right-of-way since causes of action were the same. NRCP 41(e).
OPINION
This is an appeal from the granting of summary judgment against appellants on the ground
that this suit was barred under NRCP Rule 41(e), as involving the same claim for relief as an
earlier suit dismissed under the mandatory provision of Rule 41(e) for want of prosecution.
On June 4, 1957, appellants brought suit against respondents praying relief from an
obstruction placed across a right of way allegedly owned by the appellants. The same day, the
trial court issued a temporary restraining order requiring respondent to remove the
obstruction. By stipulation of the parties, this restraining order was allowed to remain in
effect until final disposition of the case.
On August 22, 1962, the trial court, pursuant to a motion by respondent, dismissed the
action and dissolved the restraining order on the ground that appellants had failed to
prosecute the suit within a five-year period. No appeal was taken from that dismissal.
Nine days later respondent erected the obstruction in the exact same location and
appellants again filed suit. On November 30, the trial court granted summary judgment in
favor of respondent. An appeal was taken, but the parties stipulated before argument that this
Court could reverse the order of the trial court, so the order was reversed.
On remand, respondent again moved for summary judgment.
1
The court again granted
summary judgment on the basis that the action was barred because the previous suit instituted
in 1957 and dismissed in 1962 for want of prosecution was the same and thus barred
under NRCP Rule 41 {e).
____________________

1
Between the time of this Court's reversal pursuant to stipulation and the time of retrial, this Court decided
Dubin v. Harrell, 79 Nev. 467, 386 P.2d 729 (1963) clarifying the effect of a dismissal for want of prosecution
under NRCP Rule 41(e).
1962 for want of prosecution was the same and thus barred under NRCP Rule 41 (e). From
the summary judgment, this appeal is taken.
[Headnote 1]
1. It is clear under Nevada law that a dismissal under NRCP Rule 41(e) can preclude a
subsequent action based on the same claim for relief. Dubin v. Harrell, 79 Nev. 467, 386 P.2d
729 (1963).
2
The trial court, when dismissing the first action, dismissed with prejudice;
therefore, the sole issue is whether the 1962 action was, in fact, the same as the 1957 action.
2. Appellants conceded on oral argument that the same obstruction was involved in both
suits, that the right of way in issue was the same in both actions, and that the basic
controversy in the first action was whether respondent had a right to obstruct access to the
parcel of land.
Appellants contend, however, that the obstruction which is the subject of the later action
was separate and distinct from the obstruction in the prior case because it was erected at a
different time. Therefore, it is argued, under the test of identity of causes applied in Silverman
v. Silverman, 52 Nev. 152, 283 P. 593 (1930)that the same cause of action exists when
there is identity of the facts essential to the maintenance of the two actionstwo separate
actions exist in the instant case.
[Headnote 2]
The logic of the Silverman test is undisputed; however, the converse of this rulenamely,
that when the facts are not identical, the causes of action are not the samedoes not
necessarily follow.
[Headnotes 3, 4]
But since a dismissal under 41(e) with prejudice has the effect of an adjudication on the
merits, and since appellants have stipulated that the issue in the former case was the
respondent's right to obstruct, a challenge to that right is precluded in the subsequent
action.
____________________

2
The rule of Dubin v. Harrell was subsequently made a part of Rule 41(e) by the addition of the following
phrase: A dismissal under this subdivision (e) is a bar to another action upon the same claim for relief against
the same defendants unless the court otherwise provides.
case was the respondent's right to obstruct, a challenge to that right is precluded in the
subsequent action.
Therefore, the trial court did not err in granting summary judgment because the pleadings,
in view of the stipulations and concessions made by appellants, indicate that the same claim
for relief was involved in both actions.
Affirmed.
____________
81 Nev. 661, 661 (1965) Girola v. Roussille Pioneer Title Ins. Co.
HENRY GIROLA and DIANE LINK GIROLA, Appellants, v. ROGER ROUSSILLE,
PIONEER TITLE INSURANCE CO. OF NEVADA, KENNETH F. JOHNSON, KATHRYN
H. JOHNSON, and TRANS-SIERRA CORPORATION, Respondents.
No. 4840
December 16, 1965 408 P.2d 918
Bowen, Judge.
Suit by plaintiffs claiming to be the owners of certain land, wherein defendants moved for
summary judgment. From a summary judgment in favor of defendants entered by the lower
court the plaintiffs appealed. The Supreme Court, Thompson, J., held that even if Supreme
Court were empowered to distort the record, it could not deem defendants' motion, and the
summary judgment entered thereon to be a motion to dismiss for lack of jurisdiction over
subject matter and an order dismissing the plaintiffs' case for that reason, since a motion to
dismiss on that ground, had one been presented, could not legally have been granted.
Affirmed.
Alex. A. Garroway, of Reno, for Appellants.
Sidney W. Robinson, of Reno, for Respondents.
Even if Supreme Court were empowered to distort the record, it could not deem defendants' motion for
summary judgment in suit involving title to realty, and the summary judgment entered thereon to be
a motion to dismiss for lack of jurisdiction over subject matter and an order
dismissing the plaintiffs' case for that reason, since a motion to dismiss on that
ground, had one been presented, could not legally have been granted.
entered thereon to be a motion to dismiss for lack of jurisdiction over subject matter and an order
dismissing the plaintiffs' case for that reason, since a motion to dismiss on that ground, had one been
presented, could not legally have been granted. NRS 13.010; NRCP 12(b) (1): Const. art. 6. 6.
A motion to dismiss may be utilized when lack of jurisdiction over the subject matter appears on the face
of the pleading. NRCP 12(b) (1).
Since subject matter of suit was title to realty, and since the Constitution invests the district court with
original jurisdiction of cases involving title to realty, a motion to dismiss for lack of jurisdiction was not
available to defendants. NRCP 12(b) (1); Const. art. 6, 6.
OPINION
[Headnote 1]
Henry and Diane Girola commenced suit in the district court, claiming to be the owners of
certain land in Washoe County, Nevada. Each defendant, by answer, denied that claim, and
later moved for summary judgment. Their motion was granted, judgment entered, and this
appeal followed. The district court ruled as it did because it was clear from the
uncontroverted facts offered by affidavit in support of the motion that Henry and Diane
Girola did not own the property involvedtitle thereto was vested in another. Indeed, on this
appeal the Girolas concede that their claim of ownership was wholly without support in the
record before the lower court. They ask, however, that we deem the defendants' motion for
summary judgment, and the summary judgment entered thereon, to be a motion to dismiss for
lack of jurisdiction over the subject matter (NRCP 12(b) (1)) and an order dismissing their
case for that reason.
1
Even if we were empowered so to distort the record {a matter on
which we express no view), we could not do so here, because a motion to dismiss on that
ground, had one been presented, could not legally have been granted.
____________________

1
By statements in their appellate briefs, the Girolas disclose their concern. They tell us that another case is
pending between the same parties and involving title to the same real property. They are fearful that the
summary judgment in this case may be res judicata of the issues in that suit, whereas an order dismissing their
claim might not be. We intimate no opinion on this question, as we are not concerned with it on this appeal.
tort the record (a matter on which we express no view), we could not do so here, because a
motion to dismiss on that ground, had one been presented, could not legally have been
granted.
[Headnotes 2, 3]
A motion to dismiss under Rule 12(b) (1) was not available to the defendants here. That
motion may be utilized when a lack of jurisdiction over the subject matter appears on the face
of the pleading. The subject matter of this lawsuit is title to real property. Nev. Const.Art. 6,
6, invests the district court with original jurisdiction of all cases at law which involve the
title or the right of possession to, or the possession of real property. The Girolas asserted title
to, and ownership of, real property. The action was commenced in the proper court. NRS
13.010. To contend that the lower court should have treated the defendants' motion for a
summary judgment as a motion to dismiss for lack of jurisdiction over the subject matter, is
absurd.
Affirmed.
____________
81 Nev. 663, 663 (1965) McNeeley v. State
CHARLES EARL McNEELEY and ROBERT E. JOHNSON,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 4879
December 22, 1965 409 P.2d 135
The defendants were convicted in the trial court of second-degree burglary, and they
appealed. The Supreme Court, Zenoff, D. J., held that breaking was not necessary element
of crime of burglary defined by statute as entering building with intent to commit grand or
petit larceny or any felony, and requested instruction that breaking was a necessary element to
be proved was properly refused.
Affirmed.
Harry A. Busscher, of Reno, for Appellants.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Herbert F.
Ahlswede, Deputy District Attorney, and Gene Barbagelata, Deputy District Attorney,
Washoe County, for Respondent.
1. Criminal Law.
Defendants who did not testify during trial were not entitled to instruction to effect that no lack of
testimony of defendant would supply failure of proof by state so as to support by itself finding against
defendants on any essential element, in absence of statute providing that failure to testify shall not create
presumption against defendant. Const. art. 1, 8; NRS 175.175 and subd. 1.
2. Burglary.
Breaking was not necessary element of crime of burglary defined by statute as entering building with
intent to commit grand or petit larceny or any felony, and requested instruction that breaking was a
necessary element to be proved was properly refused. NRS 205.060.
3. Burglary.
Defendants who were found hiding in store in which door had been forced open and who were charged
with burglary were not entitled to instruction charging that mere presence at scene of crime does not justify
inference of participation or guilty, in view of statute providing that everyone who shall unlawfully break
and/or enter shall be deemed to have done so with intent to commit grand or petit larceny or felony in the
building unless satisfactory testimony explains breaking and/or entry to have been made without criminal
intent. NRS 205.060, 205.065.
4. Criminal Law.
Prosecutor's questions in closing argument as to whether there was any evidence that a defendant did not
have certain gloves on inside store allegedly burglarized and whether there was any evidence that
defendants were not in the store and prosecutor's statement that there were two individuals found in the
store and there was no explanation were not prejudicial to defendants who were arrested after being found
hiding in store in which door had been forced open. NRS 205.060, 205.065.
OPINION
On Sunday, July 5, 1964, at approximately 2:55 p.m., responding to a burglar alarm and a
telephone call, the Reno police searched the premises of Menards, a downtown clothing
store.
Reno police searched the premises of Menards, a downtown clothing store. That search
revealed a door that had been forced open and the appellants hiding within the store.
Appellants were arrested, subsequently tried and found guilty of burglary in the second
degree. From that conviction, this appeal is brought.
[Headnote 1]
1. Since appellants did not testify during the trial, the court instructed the jury that In
accordance with a right guaranteed by the constitution of the State of Nevada, no person can
be compelled, in a criminal action, to be a witness against himself. This charge conforms to
the language and with the requirements of Art. 1, Sec. 8, of the Nevada Constitution, and
NRS 175.175.
1

Appellants assert as one ground of error, however, the denial of their request that the jury
be further instructed that In deciding whether or not to testify, the defendants, or either of
them, may choose to rely on the state of the evidence and upon the failure, if any, of the state
to prove every essential element of the charge against them, and no lack of testimony on the
part of either defendant will supply a failure of proof by the state so as to support by itself a
finding against the defendants, or either of them, on any such essential element. Bruno v.
United States, 308 U.S. 287 (1939), is cited as authority in asserting error of the court.
The Bruno case, supra, is inapplicable to the case presently before this court, for it raised
no constitutional issue. A federal statute providing that failure to testify shall not create any
presumption against a defendant compelled the requested additional instruction in Bruno. We
have no similar statute in Nevada.
The United States Supreme Court has stated: What the jury may infer given no help from
the court is one thing.
____________________

1
No person * * * shall * * * be compelled, in any criminal case, to be a witness against himself * * *.
Nev.Const.Art. 1. Sec. 8.
No instruction shall be given relative to the failure of the person charged with the commission of crime or
offense to testify, except, upon the request of the person so charged, the court shall instruct the jury that, in
accordance with a right guaranteed by the Constitution, no person can be compelled, in a criminal action, to be a
witness against himself. NRS 175.175(1).
thing. What they may infer when the court solemnizes the silence of the accused into
evidence against him is quite another. * * * We reserve decision on whether an accused can
require, as in Bruno v. United States, 308 U.S. 287, that the jury be instructed that his silence
must be disregarded. Griffin v. California, 380 U.S. 609 (1965). See also Fernandez v. State,
81 Nev. 276, 402 P.2d 38 (1965).
The instruction given was in the constitutional and statutory language and it was proper
and adequate.
[Headnote 2]
2. Appellants also assign as error the failure of the trial court to instruct the jury that a
breaking was a necessary element of the crime of burglary and must be proved. No such
requirement is found in the statute defining that crime.
2

Appellants contend that Smith v. District Court, 75 Nev. 526, 347 P.2d 526 (1959),
recognizes that the common-law necessity for a showing of a breaking has been retained
although it is not found in NRS 205.060. We find the contrary to be true. The issue in the
Smith case, supra, was whether the open portion of a pickup was within the statutory
contemplation of a vehicle. The dictum in that case resulting from a quotation from State v.
Petit, 72 P. 1021 (Wash. 1903), we find, does not establish the requirement of a breaking.
That quotation served as an illustration on the issue of legislative intent regarding the subject
of an unlawful entry; it did not concern itself with the means employed in gaining entry.
The common-law vestige of breaking as an element in the crime of burglary was
eliminated from Nevada law by the case of State v. Watkins, 11 Nev. 30 (1876), decided
under a statute that ostensibly required forcible breaking and entering in burglary. Since that
case, the legislature has rewritten the statute omitting any requirement of breaking. We
therefore conclude that
____________________

2
Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, bar, stable,
outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or housetrailer, or railroad car, with
intent to commit grand or petit larceny, or any felony, is guilty of burglary. NRS 205.060.
the element of breaking no longer need be shown. The trial court was correct in its refusal of
this instruction.
[Headnote 3]
3. Appellants further assign as error the court's refusal to give an instruction charging that
mere presence at the scene of the crime does not justify any inferences of participation in the
crime or of guilt. They disregard, however, NRS 205.065 creating such an inference.
3

Statutory establishment of inferences similar to NRS 205.065 have been held by the
United States Supreme Court to be constitutionally permissible. United States v. Gainey, 380
U.S. 63 (1965); United States v. Romano, 86 S.Ct. 279 (1965). Thus, no error results from
the refusal to give appellants' proposed instruction.
[Headnote 4]
4. Appellants' final specification of error is that the trial court erred in refusing to grant a
mistrial after prejudicial remarks were made in the prosecutor's closing argument referring to
the defendants' failure to testify.
The alleged prejudicial remarks are as follows: (1) Is there any evidence that Mr.
McNeely did not have these gloves on inside the store? Is there any evidence that Mr.
McNeely or Mr. Johnson were not in that store? (2) There are the two individuals who were
found in there (indicating) and we have no explanation.
We believe the instant case fits squarely within the doctrine announced by this court in
Fernandez v. State, supra, and thus the remarks were not prejudicial. And in United States v.
Gainey, supra, the United States Supreme Court stated: Furthermore, in the context of the
instructions as a whole, we do not consider that the single phrase, 'unless the defendant by
the evidence in the case and by proven facts and circumstances explains such presence to
the satisfaction of the jury,' can be fairly understood as a comment on the petitioner's
failure to testify."
____________________

3
Every person who shall unlawfully break and enter or unlawfully enter any house, room, apartment,
tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle
trailer, semitrailer or housetrailer, or railroad car shall be deemed to have broken and entered or entered the
same with intent to commit grand or petit larceny or a felony therein, unless such unlawful breaking and entering
or unlawful entry shall be explained by testimony satisfactory to the jury to have been made without criminal
intent. NRS 205.065.
single phrase, unless the defendant by the evidence in the case and by proven facts and
circumstances explains such presence to the satisfaction of the jury,' can be fairly understood
as a comment on the petitioner's failure to testify.
Affirmed.
____________
81 Nev. 668, 668 (1965) Feder v. Weissman
JACK FEDER, LOUIS FEDER, HORTENCE GYLE, DOLLY SANDERSON, ETHEL
GRAYSON, Estate of DORA GOLDSTEIN, Deceased, and ELSIE GLASSNER, Appellants,
v. WILLIAM M. WEISSMAN and ELLICE E. DAVIDOW, Respondents.
No. 4913
December 29, 1965 409 P.2d 251
Gabrielli, Judge.
Estate proceeding wherein an appeal was taken from an order of the lower court holding
certain bequests of stock to be specific and adeemed by extinction. The Supreme Court, Badt,
J., held that bequests of stock were general so as not to be adeemed by extinction where two
of seven legatees were bequeathed both stock and cash, other five were bequeathed stock
only, four of seven bequests included anti-lapse provisions naming other legatees, and
remaining three bequests provided that should principal legatees predecease testatrix, stock
would be divided equally among surviving persons who had been bequeathed shares and to
no other beneficiaries.
Reversed.
Fry and Fry, of Reno, and Cerf, Robinson and Leland, of San Francisco, for Appellants.
William L. Hammersmith, of Reno, for Respondents.
1. Wills.
A specific bequest is a gift of a specific article or portion of testator's estate that is described by will in
manner that distinguishes it from other articles of same general nature.
2. Wills.
A general bequest is a gift payable out of general assets of estate, not amounting to a bequest of
particular thing or money.
3. Wills.
Specific bequests are adeemed by extinction; general bequests survive.
4. Wills.
Bequests of stock were general so as not to be adeemed by extinction where two of seven legatees were
bequeathed both stock and cash, other five were bequeathed stock only; four of seven bequests included
anti-lapse provisions naming other legatees, and remaining three bequests provided that should principal
legatees predecease testatrix, stock would be divided equally among surviving persons who had been
bequeathed shares and to no other beneficiaries.
OPINION
This is an appeal from an order granting final distribution of the estate of Rae L.
Weissman, deceased. Specifically, the appeal is taken from the court's determination of the
legal effect of Paragraphs Fourth to Tenth, inclusive, of the will of said testatrix.
The testatrix executed her will under date of September 19, 1962. In it she bequeathed ten
(10) shares of Union Oil of California stock to each of seven legatees, appellants here. At the
time of her death, on May 26, 1964, she did not own any of said stock. Her will was admitted
to probate August 17, 1964.
On January 28, 1965, the attorney for the estate sent out a letter to all beneficiaries of stock
under the will, stating that he regretted to inform them that there was no stock in the estate
and, therefore, there could be no distribution of shares of stock thus bequeathed.
At the hearing of the first and final account and petition for distribution held February 26,
1965, appellants, beneficiaries of the seven bequests of 10 shares of Union Oil stock each,
filed objections. No evidence was presented at the hearing, but a written memorandum of law
was submitted on behalf of each side on the question of law "where a bequest of 10
shares of stock is specific or general."
was submitted on behalf of each side on the question of law where a bequest of 10 shares of
stock is specific or general.
On March 2, 1965, the court filed its decree, settling the account of the executors, and
ordered final distribution, which decree included no distribution to such legatees. This
followed the holding of the district judge that the stock bequests were intended to be
specific and had been adeemed by extinction. The legatees who were thus affected appeal.
Appellants' opening brief presents four questions: (1) the nature of the stock bequests; (2)
whether they were adeemed; (3) who has the burden of proof in showing bequests are, in fact,
adeemed; and (4) who has the burden in showing stock bequests are specific. Respondents
reply that only the nature-of-the-bequests question was before the court in probate and thus
only it can be the subject of appeal. Be that as it may, our eventual conclusion that the
bequests are general, thus not adeemed, obviates the necessity of determining the other
questions.
It should first be noted that although each bequest contains the identical words, I give,
devise and bequeath to * * * 10 shares of Union Oil of California stock, there were some
significant variations. (1) To two of the seven legatees the testatrix bequeathed both the
shares of stock and $500 cash. (2) The other five legatees were bequeathed only the stock. (3)
Four of the seven stock bequests included an anti-lapse provision naming other legatees. (4)
The remaining three bequests provided that should the principal legatees predecease testatrix,
the stock would be evenly divided among the surviving persons who have also been
bequeathed 10 shares of Union Oil of California stock, and to no other beneficiaries named in
this will.
[Headnotes 1, 2]
A specific bequest is a gift of a specific article or portion of the testator's estate that is
described by the will in a manner that distinguishes it from other articles of the same general
nature. Atkinson, Wills, 732 (2nd Ed., 1953). A general bequest is a gift payable out of the
general assets of the estate not amounting to a bequest of a particular thing, money, or
fund. Id. 733.
general assets of the estate not amounting to a bequest of a particular thing, money, or fund.
Id. 733. The determination whether a bequest of securities is specific or general has become a
matter of great complexity.
1

[Headnotes 3, 4]
The classification of bequests as specific, demonstrative, or general carries with it
particular incidents of each classification. Specific bequests are adeemed by extinction;
general bequests survive. Fidelity Title & Trust v. Young, 101 Conn. 359, 125 A. 871. Did
Mrs. Weissman intend to bequeath her stock only on condition it was not otherwise disposed
of before her death? Obviously, her will does not expressly provide. Instead, we are forced to
rely on the various indicia of intent formulated through the years.
Whether a bequest of stock is specific or general becomes most pertinent in estate
distribution where a subsequent event changes conditions which existed at the time the will
was executed. These events take one of three forms: (1) accretion, where the stock described
at execution has increased its value or number of shares by the time of distributioni.e.,
through dividends or splits; (2) abatement, where the estate proves insufficient to meet
outstanding debts and bequests must give way along a set order of priority; and (3)
ademption, where the stock initially bequeathed no longer exists in the estate at time of
distribution.
2

Courts often say that the law leans against specific legacies, and to general ones. In re
Snyder's Estate, 217 Pa. 71, 66 A. 157 (1907). But neither the preference of the law, nor the
leaning of courts, extends to cases where the intention of the testator can be satisfactorily
ascertained."
____________________

1
When I recall what a multitude of judicial decisions I have, from time to time, examined in the
investigation of the matter here to be passed upon, and consider how full of bewildering refinements and
contradictions those decisions are, I can understand why Lord Thurlow held (a case involving classification of a
securities bequest) under advisement for two years * * *. Matter of Hastings, 6 Dem. 307, 312 (Surr.Ct.N.Y.
1887).

2
Generally, see Mechem, Specific Legacies of Unspecific ThingsAshburner v. MacGuire Reconsidered,
87 U.Pa.L.Ref. 546 (1939); Note. 36 Calif.L.Rev. 338 (1948); Note, 23 Cornell L.Q. 639 (1938); Note. 42
B.U.L.Rev. 385 (1962).
cases where the intention of the testator can be satisfactorily ascertained. Foote v.
Worthington, 39 Mass. (22 Pick) 299 (1839). The problem revolves around ascertaining that
intent.
The instant case is one of first impression in this jurisdiction but this court has emphasized
that the cardinal rule of interpretation of wills is to ascertain the intention of the testator,
Sharp v. First National Bank (Estate of Malone), 75 Nev. 355, 343 P.2d 572 (1959). We have
even disclaimed reasonableness of a provision as a guide to the testator's intentions so long as
the provision is valid and clearly shows such intention. Sarrazin v. First National Bank, 60
Nev. 414, 111 P.2d 49 (1941).
Here there is no clear showing of intent and we turn then to guidelines set forth by the
majority of courts, while frankly recognizing the fact that there is no pure and exact logic to
justify the guides thus fixed.
1. Probably the most uniform interpretation is given to words which indicate that the
testator owns or possesses the securities in question at the time he executed the will. A
reference to securities as belonging to the testator, a reference which may be by the use of
such word as my' or by some other expression which indicates ownership, shows that such
bequest is specific. 4 Page, Wills 1937, at 125 (Lifetime Ed. 1941). This distinction drawn
between my X shares and simply X shares without the possessive, seems to be at first
sight a rather remarkable distinction, but such seems to be the rule adopted by the courts * *
*. Norris v. Thomson, 15 N.J.Eq. 493, 495-496 (1863). No such terminology can be found in
the instant case with reference to the stock bequests. Thus the trial court here could not have
looked to the possessive words to find intent to make the stock bequests specific. Nor were
there other phrases used in connection with the stock from which the court could come to
such conclusion. No number appearing on the stock certificates was mentioned. There was no
reference to total value, which under some circumstances has been held to indicate intent for
specificity. Cf. In re Snyder's Estate, 217 Pa.
Pa. 71, 66 A. 157 (1907). Nor was the location of the securities' depositary described. Cf.
Heller v. National Bank of West Virginia, 33 F.Supp. 250 (1940). Nor was there any use of
the phrase rights and privileges in connection with the stock. Cf. Desoe v. Desoe, 304
Mass. 231, 23 N.E.2d 82 (1939). Nor was the bequest framed as a fractional portion of
testatrix' total holdings; it simply was stated in actual share numbers. Cf. In re Daly's Estate,
202 Cal. 284, 260 P. 296 (1927).
2. Some courts have been quick to consider as specific a bequest of stock not readily
obtainable on the open market. Thus In re Buck's Estate, 32 Cal.2d 372, 186 P.2d 708, 196
P.2d 769, the court said:
* * * [T]he stock of the Belridge Oil Company has never been traded or listed on any
stock exchange and there [have] been comparatively few sales of such stock. * * * The
testator was a director of Belridge Oil Company and a trustee under the voting trust and was,
of course, aware that the stock was closely held and not listed or traded on any stock
exchange, and that it would be impossible to acquire additional shares except at a price
disproportionate to their value.
The foregoing finds no application in the present situation, as Union Oil of California was
widely traded and listed on the New York Stock Exchange.
3. The courts are in conflict whether they should be influenced by the fact that the testator
owned at the time of execution of his will the total number of shares he actually disposed of
by his will. Tifft v. Porter, 8 N.Y. 516; also see 2 U. of Chi.L.Rev. 490 (1934). Perhaps it is
logical to recognize in the identity of the amount owned and the amount given at least some
indication of testamentary intent to make the bequest specific. However, such does not arise
in the present case. The testatrix bequeathed only a portion of the shares she actually owned
at time of execution. Thus even accepting such a test, such theory of the correlation to total
holdings does not exist here.
4. Apparently the strongest test upon which the trial court could have relied to find the
testator's intent to make the bequests specific was the mixed bequest test, in which
testamentary intent has been gleaned from an individual legatee's receiving both stock
and money.
test, in which testamentary intent has been gleaned from an individual legatee's receiving both
stock and money. Under such circumstances it is sometimes presumed that the testator
intended the bequest of stock to be specific.
[W]here there is a bequest of stock and money, and the testator at the time of making his
will owned stock of the kind bequeathed, such separation of the bequest into stocks and
money has been considered as showing an intent a make the bequest of the stock specific. 18
Am. & Eng. Enc. Law (2d Ed.), p. 715; Douglass v. Douglass, 13 App.D.C. 21; Metcalf v.
First Parish, 128 Mass. 370; Kermode v. McDonald, 3 Ch.Div. 584; White v. Winchester, 6
Pick. 48. New Albany Trust Co. v. Powell, 29 Ind.App. 494, 64 N.E. 640 (1902).
In the case of Fidelity National Bank & Trust Co. v. Hovey, 319 Mo. 192, 5 S.W.2d 437
(1928), the court quoted extensively from New Albany, supra, as well as other sources:
In Kermode v. MacDonald, L.R. 3 ch. 584, 586, approvingly cited by Gray, C.J., in
Metcalf v. Framingham Parish (128 Mass. 370), the testatrix by her will bequeathed to Mary
Griffith the interest, profits, or produce of the sum of 300 British, or thereabouts, invested by
testatrix in the General Steam Navigation Company, London, and also the interest of 200
British, for her life, and upon her decease the testatrix desired that the said principal sum of
500' should be equally divided among the children of Mary Griffith. Said Lord Cains, L.C.:
It seems to me impossible to treat this legacy of 300 otherwise than as a specific legacy
of the interest which the testatrix had in the General Steam Navigation Company. This is
made clear by the contrast between this and the following bequest, which is intended to be a
legacy in gross, and simply pecuniary.'
In Douglass v. Douglass, 18 App.D.C. 21, 29, the testator by the third paragraph of his
will bequeathed to his wife ten thousand dollars in registered United States bonds, and ten
thousand dollars in lawful money, the latter to be derived from my other property not
mentioned in the foregoing.' It was ruled by the Court of Appeals of the District of
Columbia that the bequest of the United States bonds was specific, and not general.
mentioned in the foregoing.' It was ruled by the Court of Appeals of the District of Columbia
that the bequest of the United States bonds was specific, and not general. Said that court:
Conceding that the word registered, as description of the bonds, would not necessarily
render the legacy specific, and giving due weight to the omission of the specially descriptive
my, still, in our opinion, an intention to make the legacy specific appears from the
immediately succeeding additional bequest of another $10,000 in lawful money. Then, as if
to render this indication of intention clear, the testator adds the remaining words of the
sentence: The latter to be derived from my other property not mentioned in the foregoing;
that is say, from property not before specifically bequeathed. Rejecting these last words, even,
the separation of the two bequests into the bonds which he then possessed, on the one hand,
and into money, on the other, considered in connection with the general scheme of the will,
would, as intimated above, be sufficient of itself to indicate the intention to make the first one
specific.' (5 S.W.2d at 444).
The foregoing quotation is submitted as an illustration of what we have called the
difficulty in following the reasoning under which the various tests of a specific or general
legacy are applied. It does not, however, affect the conclusion reached by us. See the
extensive article on stock bequests in 43 Iowa L.Rev. 467 (1958), where the author cites 13
cases in support of the mixed bequest test as an indication of testamentary intent to make
the bequest specific. However, an analysis discloses that these cases had, in addition to a
mixed bequest, other features which could have led to a conclusion that a specific bequest
was intendedor the case was primarily concerned with accretion or abatement, where courts
generally lean toward specificity so as to favor designated legatees.
Here, the lone indication of intended specificity was in Mrs. Weissman's mixing two of the
stock bequests with monetary gifts. Such mixtures in the same legatee are construed as
effecting a distinction between the two assets: since a monetary gift is always general, the
bequest of stock is considered specific.
bequest of stock is considered specific. However, the mixed nature of the two bequests here is
the only evidence of specificity, and we emphasize the fact that just two of the seven bequests
have even this mixture. [W]e see no reason why the usual presumption that identical
descriptive terms contained in the same will are intended to refer to the same subject-matter
should not have its effect. Fidelity Title & Trust v. Young, 101 Conn. 359, 125 A. 871.
There, one bequest contained an anti-ademption provision as to testator's wife and daughter
while an otherwise identical bequest to a friend was bare. The court, considering disposition
of a stock split, held both bequests specific. Here, all seven of Mrs. Weissman's stock
bequests were identically worded. Five were bereft of any indicia of specificity; therefore they
are general and not adeemed by extinction. We see no indication that Mrs. Weissman
intended otherwise for the two mixed-bequests.
Finally, we note that all seven bequests of stock contained anti-lapse provisions which
served to keep the shares from residuary legatees. Absent express wording contra, it seems
incongruous that testatrix allowed for survival of her stock bequests in one
conditionlapsebut intended to abandon the same bequests in the event of another
conditionextinction. Had testatrix wanted to change or modify the stock bequests
subsequent to execution she could have revoked or amended her will. This she did not do. It
therefore seems reasonable under the instant facts to conclude she would have intended at
execution that her stock bequests survive extinction.
Reversed.
____________
81 Nev. 677, 677 (1965) Hudson v. City of Las Vegas
JOSEPH HICKS HUDSON, Petitioner, v.
CITY OF LAS VEGAS, NEVADA, Respondent.
No. 5012
December 30, 1965 409 P.2d 245
Proceedings to restrain municipal court from proceeding, without a jury, with petitioner's
trial for violation of city ordinance. The Supreme Court, Badt, J., held that although conduct
constituting ordinance violation with which petitioner was charged was also made punishable
under state statute whereunder trial by jury was permitted, trial of ordinance violations
summarily in municipal court without jury did not deprive petitioner of procedures
guaranteed him in trial of justice's court, including jury trial.
Petition denied and proceedings dismissed.
Robert L. Reid, of Las Vegas, for Petitioner.
Sidney R. Whitmore, City Attorney, James M. Bartley, Deputy City Attorney, Las Vegas,
for Respondent.
1. Jury.
Although United States Constitution specifically provides for trial by jury, such right to jury trial does not
include trial of numerous offenses commonly described as petty which were summarily tried without a jury
by justices of peace in England and by police magistrates or corresponding judicial officers in colonies.
U.S.C.A. Const. art. 3, 2; Amend. 6.
2. Jury.
Provision of state constitution that right of trial by jury shall be secured to all and remain inviolate
forever refers to right of trial by jury as it existed at time of adoption of state constitution and does not
confer any right thereto which did not exist at that time. Const. art. 1, 3.
3. Jury.
There is no statutory guarantee of trial by jury when municipal ordinances and state statutes coincide.
4. Jury.
Although conduct constituting ordinance violation with which petitioner was charged was also made
punishable under state statute whereunder trial by jury was permitted, trial of ordinance violation
summarily in municipal court without jury would not deprive petitioner of procedures guaranteed him in
trial in justice's court, including jury trial.
5. Criminal Law.
Every crime punishable by a fine of not more than $500 or by imprisonment in county jail for not more
than six months is a misdemeanor.
6. Criminal Law.
Every crime which may be punished by death or imprisonment in a state prison is a felony.
7. Criminal Law.
Every crime which may not be punished by death or imprisonment in a state prison and which is not
punishable by a fine of not more than $500 or by imprisonment in county jail for not more than six months
is a gross misdemeanor. NRS 193.120.
OPINION
Petitioner, Joseph Hicks Hudson, seeks a writ of prohibition from this court to restrain the
municipal court of the City of Las Vegas from proceeding, without a jury, with his trial for
violation of a city ordinance. He contends that the municipal court is without jurisdiction to
proceed in that he is entitled under the Constitution to a jury trial since he is charged with a
misdemeanor under the municipal ordinance of Las Vegas, and the same offense is covered
by a state statute.
Petitioner was arrested July 24, 1965, in the City of Las Vegas, Clark County, Nevada, and
charged with violating a municipal ordinance. The ordinance incorporates by reference
certain acts which had been declared misdemeanors by the state and makes them
misdemeanors under local law.
1

The complaint charged petitioner with * * * a misdemeanor, to wit: Contributing to the
delinquency of a minor, * * * in that petitioner did * * * willfully and unlawfully cause or
tend to cause a person under the age of 18, to wit: One BARRY HUDSON, to become a
delinquent child as defined in NRS 201.090 (Sec. 8), by causing said Barry Hudson to be
found in the BLACK ORCHID BAR, located at 'H' and Owen Streets, where alcoholic
beverages are consumed, which occurred at approximately 11:00 PM, 7-24-1965, all of
which is contrary to the form, force, and effect of TITLE VI of Chapter I, Section 34, of the
Las Vegas City Code, and against the peace and dignity of the City of Las Vegas."
____________________

1
Las Vegas City Code: Sec. 6-1-34. STATE MISDEMEANORS: The commission of any act within the
Corporate Limits of the City, * * * which is made a misdemeanor by the Laws of the State is hereby declared to
be and shall constitute a misdemeanor.
the BLACK ORCHID BAR, located at H' and Owen Streets, where alcoholic beverages are
consumed, which occurred at approximately 11:00 PM, 7-24-1965, all of which is contrary to
the form, force, and effect of TITLE VI of Chapter I, Section 34, of the Las Vegas City Code,
and against the peace and dignity of the City of Las Vegas. (NRS 201.090-201.110).
2

Petitioner entered a plea of not guilty to the charge and filed a written request for a jury
trial. This request was denied by the Hon. Walter Richards, municipal judge, on August 20,
1965.
1. Petitioner asks this court to restrain the municipal court permanently from acting in this
matter. The basis of his argument is that since the municipal ordinance under which he is
charged is identical in language with that of the state statute, which allows a jury trial had he
been prosecuted by the state, he is constitutionally entitled to a jury trial. Since the municipal
court of Las Vegas does not hear jury trials, it is, he contends, without jurisdiction.
[Headnote 1]
Although the United States Constitution specifically provides for trial by jury,
3
such right
to a jury trial does not include the trial of numerous offenses, commonly described as petty,
which were summarily tried without a jury by justices of the peace in England and by police
magistrates or corresponding judicial
____________________

2
NRS 201.090. As used in NRS 201.090 to 110, inclusive, unless the context otherwise requires, a
dependent child' or delinquent child' means any person less than 18 years of age:
* * * * *

8. Who unlawfully visits a saloon where any spirituous, vinous or malt liquors are sold, bartered,
exchanged or given away.
NRS 201.110. Penalties. Any person who commits any act or omits the performance of any duty, which act
or omission causes or tends to cause or encourage any person under the age of 18 to become a dependent child'
or delinquent child,' as defined in NRS 261.090 to 201.110, inclusive * * *.

3
Art. III, Sec. 2. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial
shall be held in the state where said crimes shall have been committed * * *.
Amendment VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury * * *.
officers in the colonies. District of Columbia v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 81
L.Ed. 843 (1937). And in Schick v. United States, 195 U.S. 65, 70, 24 S.Ct. 826, 49 L.Ed. 99
(1904), it was this history that led the Supreme Court to conclude that the intent [of the
framers] was to exclude from the constitutional requirement of a jury the trial of petty
criminal offenses. This right is applicable then only in those matters in which it existed
anciently under the common law. District of Columbia v. Clawans, supra; U.S. v. Barnett,
376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964); Town of Montclair v. Stanoyevich, 6 N.J.
479, 79 A.2d 288 (1951); State v. Cousins, 97 Ariz. 105, 397 P.2d 217 (1964); Callan v.
Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 32 L.Ed. 223 (1888).
[Headnote 2]
Article I, Section 3 of the Constitution of Nevada provides that the right of trial by jury
shall be secured to all and remain inviolate forever. This court has held that this refers to the
right of trial by jury as it existed at the time of the adoption of the Nevada Constitution, and
does not confer any right thereto where it did not exist at that time. Parus v. District Court, 42
Nev. 229, 174 P. 706 (1918); Ex parte Sloan, 47 Nev. 109, 217 P. 233 (1923); State v.
Steward, 74 Nev. 65, 323 P.2d 23 (1958). In State v. Ruhe, 24 Nev. 251, 52 P. 274 (1898),
this court, after discussing summary procedure before police judges, held that the
constitutional provision for a jury trial has not been considered as extending such right but
simply as confirming and securing it as it was understood at common law. The offense
charged in this complaint was unknown at common law. State v. Williams, 73 Wash. 678,
132 P. 415 (1913); People v. Caminiti, 28 N.Y.S.2d 133 (1941).
[Headnotes 3, 4]
2. Petitioner insists that since the same act (contributing to the delinquency of a minor) is
made punishable under state law, whereunder a trial by jury is permitted, NRS 186.010, the
charge in the municipal court summarily without a jury, deprives him of the procedures
guaranteed him in a trial in the justice's court, including a jury trial.
court, including a jury trial. In support of this contention, he cites State v. Hoben, 256 Minn.
436, 98 N.W.2d 813 (1959), and several other cases. These cases do not support his
contention since the position taken by the court in each instance is based on statutory rather
than constitutional mandate. In this case there is no statutory guarantee of trial by jury when
municipal ordinances and state statutes coincide.
In Ex parte Sloan, 47 Nev. 109, 217 P. 233 (1923), this court held that the same act could
constitute both an offense against the state and against a municipal corporation, either of
which could punish without violating any constitutional principles. This court there said:
The better doctrine therefore is that the municipality may exercise necessary implied
authority in police control, in imposing penal regulations consistent with the constitution and
laws of the state, although the act has been made a penal offense by statute.' 7 McQuillin's
Municipal Corporations (Supplement), Sec. 878.
* * * * *
Violations of municipal ordinances belong to that class of minor offenses which were in
general triable in a summary manner prior to the adoption of the several constitutions, and a
denial of a jury trial in such cases is not a violation of general constitutional provisions.
* * * * *

In adopting general legislation as to the same acts, the legislature has declared it to be in
the exercise of police powers of the state for the protection of the public health, peace, and
morals. Acts made penal for such purposes by municipal ordinances have always been
prosecuted without a jury under the common law. Id., at 119.
The court then cites with approval McInerney v. City of Denver, 17 Colo. 302, 29 P. 516
(1892):
A careful examination of authorities has led us to the conclusion that, both in this country
and in England, the transgression of municipal regulations enacted under the police power for
the purpose of preserving the health, peace and good order, and otherwise promoting the
general welfare within cities and towns had, for more than a century prior to the adoption
of our constitution, been generally prosecuted without a jury * * *."
the health, peace and good order, and otherwise promoting the general welfare within cities
and towns had, for more than a century prior to the adoption of our constitution, been
generally prosecuted without a jury * * *.
This indeed is supported by a majority of the jurisdictions. See Petty Federal Offenses
and Trial by Jury, 39 Harvard L.Rev. 917, by Felix Frankfurter and Thomas G. Corcoran for
an extensive and illuminating article; State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962);
State v. Lookabill, 176 Neb. 254, 125 N.W.2d 695, 126 N.W.2d 403 (1964); State v. Towne,
64 Wash.2d 581, 392 P.2d 818 (1964); Town of Montclair v. Stanoyevich, 6 N.J. 479, 79
A.2d 288 (1951); City of Oshkosh v. Lloyd, 255 Wis. 601, 39 N.W.2d 772 (1949).
3. Petitioner makes a valiant attempt to distinguish our statutory misdemeanors from
what the cases refer to as petty offenses under the common law, summarily tried without a
jury. In Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904), the majority
opinion of the court finds much significance in the fact that in the original draft of the United
States Constitution as reported by the committee the language was the trial of all criminal
offenses * * * shall be by jury, but by unanimous vote it was amended to read, the trial of
all crimes. It was then said: The significance of this change cannot be misunderstood. It
held that it was obvious that the intent was to exclude from the constitutional requirement of
a jury the trial of petty criminal offenses. Earlier the court had said that the nature of the
offense, and the amount of punishment prescribed, rather than its place in the statutes,
determine whether it is to be classed among serious or petty offenses,whether among
crimes or misdemeanors, and cited Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed.
223 (1888), as settling the matter.
[Headnotes 5-7]
By statute in Nevada all offenses recognized by the common law as crimes, and not
enumerated in NRS shall be punished: In the case of felonies by imprisonment in the state
prison for not less than one year and in cases of misdemeanors by imprisonment in the
county jail for not more than six months nor less than one month or by a fine not
exceeding $500 or both.
shall be punished: In the case of felonies by imprisonment in the state prison for not less than
one year and in cases of misdemeanors by imprisonment in the county jail for not more than
six months nor less than one month or by a fine not exceeding $500 or both. If committed to
the state prison the party upon whom the fine is imposed shall be imprisoned at the rate of
one day for each $2 until the fine is paid. When not sentenced to the state prison he is
committed to the county jail on the same basis. NRS 193.180. Every crime which may be
punished by death or imprisonment in a state prison is a felony. Every crime punishable by a
fine of not more than $500 or by imprisonment in a county jail for not more than six months
is a misdemeanor. Every other crime is a gross misdemeanor. NRS 193.120. Our statutes do
not use the term petty offense. The majority rule appears to equate petty offense with
misdemeanor. Therefore, petitioner's contention in this regard is without merit.
4. Petitioner cites a number of provisions of the criminal practice act from which he draws
the inference, or argues from analogy, that persons charged with a misdemeanor, as well as
those charged with the commission of a felony, are constitutionally and by statute entitled to a
jury trial. We have considered these contentions, as well as further arguments made in the
petitioner's opening and reply briefs, and find no merit in any of them.
The petition is denied and the proceedings dismissed.
Thompson, J. and Zenoff, D. J., concur.
____________

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