Nevada Reports 1963 (79 Nev.) PDF

79 Nev.
1, 1 (1963)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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VOLUME 79
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79 Nev. 1, 1 (1963) Kelly v. Murphy
JOHN E. KELLY, Petitioner, v. EUDORA V. MURPHY, County Clerk of Nye County;
ANDREW M. EASON, Chairman, Nye County Commissioners; NICK G. BANOVICH, Nye
County Commissioner; and RALPH LISLE, Nye County Commissioner, Respondents.
No. 4587
January 2, 1963 377 P.2d 177
Original proceedings in mandamus.
Proceedings to compel county clerk to issue petitioner a certificate of election as district
attorney. The county clerk and county commissioners moved to dismiss the petition. The
Supreme Court held that under statute requiring Secretary of State to promulgate rules and
regulations for conduct of elections in all counties, telephone directions from the Secretary of
State as to the manner of conducting a recount was not a "promulgation," and hence
subsequent recount was a futile act undertaken without lawful authorization.
manner of conducting a recount was not a promulgation, and hence subsequent recount was
a futile act undertaken without lawful authorization.
On motion to dismiss; motion granted.
[Rehearing denied January 16, 1963]
Harry E. Claiborne and John E. Kelly, of Las Vegas, In Propria Persona, for Appellant.
William P. Beko, District Attorney, Nye County and John C. Bartlett, Deputy District
Attorney, Nye County, for Respondents.
1. Elections.
Under statute requiring Secretary of State to promulgate rules and regulations for conduct of elections in
all counties, telephone directions from Secretary of State as to manner of conducting recount for election of
district attorney was not a promulgation, and hence subsequent recount was a futile act undertaken
without lawful authorization. NRS 34.160, 293.247, 293.393, subd. 3.
2. Officers.
A promulgation usually connotes an official public declaration.
OPINION
Per Curiam:
This mandamus proceeding involves the November 6, 1962 election for the office of Nye
County District Attorney. Kelly, the petitioner, seeks to compel the Nye County Clerk to issue
him a certificate of election (NRS 293.393(3)); annul the certificate of election heretofore
issued Beko, petitioner's election opponent, and asks that the Nye County Commissioners be
directed to declare Kelly the elected Nye County District Attorney. The Nye County Clerk
and Commissioners have moved to dismiss the petition, primarily because of this court's
opinion in Beko v. Kelly, 78 Nev. 489, 376 P.2d 429, regarding the same candidates and
election. We believe that their motion to dismiss must be granted.
The returns of the election, showing Beko to be the winner, were canvassed by the County
Commissioners, the results declared, and an abstract of votes duly transmitted to the
Secretary of State.
the results declared, and an abstract of votes duly transmitted to the Secretary of State.
Thereafter, and pursuant to Kelly's demand, a recount was had during which certain ballots
were rejected, resulting in a majority for Kelly. Subsequently, the County Commissioners
disapproved the rejection of such ballots by the recount board, and again declared Beko to be
the duly elected Nye County District Attorney.
1
It is Kelly's position that the recount board
was regularly and lawfully constituted; and that its determination that he won is final; that the
County Clerk, therefore, must issue a certificate of election to him as an act which the law
especially enjoins as a duty resulting from office. NRS 34.160.
[Headnotes 1, 2]
In Beko v. Kelly, supra, we said, inter alia: The so-called recount board in the present
case was appointed without statutory authorization of any kind whatsoever.
The number of members constituting the board, its organization, its duties, its meetings,
the manner of its appointment, are all unprovided for in the election law. Notwithstanding
such language, Kelly urges that NRS 293.247 requiring the Secretary of State to promulgate
rules and regulations for the conduct of primary and general elections in all counties has
application here, and that the telephone directions from the Secretary of State as to the
manner of conducting the recount was a promulgation of rules and regulations within the
meaning of the statute.
2
We cannot agree. In May 1962, the Secretary of State issued a
printed pamphlet entitled "Rules and Regulations for the Conduct of Primary and General
Elections in all Counties of the State of Nevada," for the express purpose of complying
with the provisions of NRS 293.247 requiring that such be done.
____________________

1
The recount proceeding is more particularly set forth in Beko v. Kelly, supra, and need not here be repeated.

2
According to the petition herein, the Secretary of State, by telephone, advised the County Clerk that the
recount board was to be composed of five members who need not be registered voters of Nye County; that the
Clerk and Commissioners were to be present as non-members; that the candidates were to be present; that the
County Clerk was to administer an oath of office; that the counting should be commenced within three days after
demand, and completed within three days after it is begun; and that the recount board should be appointed by the
County Clerk, and that the candidates should stipulate, if possible, to such members as the Clerk anticipated
appointing.
Rules and Regulations for the Conduct of Primary and General Elections in all Counties of
the State of Nevada, for the express purpose of complying with the provisions of NRS
293.247 requiring that such be done. There is nothing in the rules and regulations thus
promulgated governing recount. The oral communication from the Secretary of State was not
the promulgation of a rule and regulation within the contemplation of NRS 293.247. The
promulgation occurred in May 1962 when the Secretary of State issued the printed
pamphlet which was thereafter conveniently available to all members of the public wishing to
read its provisions. A promulgation usually connotes an official public declaration. Black's
Law Dictionary, 4th ed. A private telephone conversation does not suffice.
We conclude that the so-called recount was a futile act, undertaken without lawful
authorization. Accordingly, no duty devolved upon the Nye County Clerk by reason of said
recount, and mandamus will not lie. The respondents' motion to dismiss Kelly's application
for mandamus must be, and is, granted.
____________
79 Nev. 4, 4 (1963) Harmon v. Tanner Motor Tours
HARLEY E. HARMON, ARTHUR OLSEN, LOU F. LaPORTA, ROBERT T. BASKIN and
NORMAN WHITE, Successors by Election to HARLEY E. HARMON, ARTHUR OLSEN
and CLESSE M. TURNER, as the BOARD OF CLARK COUNTY COMMISSIONERS, the
Governing Body of Clark County, Nevada, and LAS VEGAS-TONOPAH-RENO STAGE
LINES, INC., a Nevada Corporation, and SEBASTIAN F. MIKULICH, Appellants, v.
TANNER MOTOR TOURS OF NEVADA, LTD., a Nevada Corporation, Respondent.
No. 4531
January 8, 1963 377 P.2d 622
Appeal from judgment of the Eighth Judicial District Court, Clark County; David Zenoff,
Judge.
Action by motor carrier to enjoin interference with exclusive franchise granted to it by
board of county commissioners and for specific performance of agreement. The lower court
entered a judgment in favor of the plaintiff motor carrier and the defendants appealed. The
Supreme Court, Thompson, J., held that the agreement between board and plaintiff carrier,
arising from board's acceptance of plaintiff carrier's bid for providing limousine service for
airport, was capable of being specifically enforced.
Judgment affirmed.
[Rehearing denied February 13, 1963]
Foley Brothers, of Las Vegas; Richard Hanna and Robert F. List, of Carson City, for
Appellants Las Vegas-Tonopah-Reno Stage Lines, Inc., and Sebastian F. Mikulich.
John F. Mendoza, District Attorney, Clark County, for Appellants County Commissioners.
George Rudiak, of Las Vegas, for Respondent.
1. Appeal and Error.
Where coappellant had duly perfected its appeal and within time designated by appeal all parties had
stipulated that appeals of both appellants could be consolidated, effect of one appellant's notice of appeal
would be deemed to be an irregularity which was not jurisdictional in nature, and motion to dismiss appeal
of appellant which filed defective notice of appeal would be denied and its motion to adopt briefs of
coappellant would be granted.
2. Statutes.
Statute requiring county commissioners to advertise for bids in letting contracts which exceed $1,000 and
to let the same to the lowest responsible bidder is inconsistent with statute permitting county
commissioners, in operating airport, to enter into contracts and leases for services which shall be
reasonable and uniform, and the statutes may not be read in pari materia. NRS 244.315 and subd. 3,
496.090.
3. Aviation.
Contract to supply ground transportation service to municipal airport is governed by provisions of
Municipal Airports Act and excluded from statute requiring county commissioners to advertise for bids in
letting contracts which exceed $1,000 and to let the same to the lowest responsible bidder. NRS 244.315
and subd. 3, 496.090.
4. Aviation.
Board of county commissioners may use bidding process to consummate contract for airport ground
transportation service without regard to statute requiring county commissioners, in case of ordinary
contracts exceeding $1,000, to advertise for bids and to let the same to the lowest responsible bidder. NRS
244.315.
5. Aviation; Frauds, Statute of.
Where board of county commissioners advertised for bids for furnishing of ground transportation at
airport and motor carrier submitted proposal which was accepted by the board, advertisement, proposal and
acceptance established meeting of minds as to parties, subject matter, consideration and contract terms, and
was legally sufficient to satisfy statute of frauds, as other relevant provisions would be supplied by
reference to written agreements under which motor carrier had been furnishing transportation.
6. Aviation.
Finding that board of county commissioners contemplated that formal contract for exclusive limousine
service at airport would contain all of terms of old contract between successful bidder and the board,
except to the extent that it would be modified by bid, was supported by substantial evidence.
7. Aviation.
Conduct of airport manager, as agent of board of county commissioners, in accepting payment of
guaranteed annual sum by motor carrier whose bid for providing limousine service for airport had been
accepted, and county's acceptance of payment could be deemed to be conduct of board even though it had
been negotiating with another carrier for such service.
8. Frauds, Statute of.
Party who was stranger to agreement between board of county commissioners and motor carrier was
without standing to seek declaration that agreement did not satisfy statute of frauds, which was a personal
defense that was available only to contracting parties or their successors in interest. NRS 111.220, subd.
1.
9. Estoppel.
Board of county commissioners, which had accepted motor carrier's bid for providing limousine service
for airport and which had assured carrier that a formal written agreement would be prepared for signature,
was estopped to assert statute of frauds as defense against carrier which, in reliance on board's statement,
continued to provide service, and paid minimum guarantee under accepted bid and purchased new
equipment. NRS 111.220, subd. 1.
Generally, in absence of fraud, a promise to reduce agreement to writing is not, standing alone, basis for
invoking an estoppel against raising statute of frauds in defense.
estoppel against raising statute of frauds in defense. NRS 111.220, subd. 1.
Generally, part performance of an agreement within one year provision of statute of frauds, without more,
will not preclude bar of statute. NRS 111.220, subd. 1.
Where there is both a promise to reduce a writing to agreement and a part performance by promisee,
estoppel is properly invoked against raising defense of statute of frauds and main agreement is enforced.
NRS 111.220. subd. 1.
13. Equity.
Legal remedy of action for breach of contract was not adequate for motor carrier whose bid for a 10-year
exclusive franchise for providing limousine service for airport had been accepted by board of county
commissioners which was to receive payment predicated upon gross receipts.
14. Specific Performance.
Where specific performance is sought, a clear understanding of terms of contract is normally required,
and contract must be reasonably certain as to subject matter, its stipulations, its purposes, its parties and
circumstances under which it was made.
Agreement between motor carrier and board of county commissioners, arising on board's acceptance of
carrier's bid to provide limousine service for airport, was sufficiently precise to be specifically enforced.
If agreed exchange can, with substantial certainty, be guaranteed to both parties, unavailability of remedy
of specific performance to one of the parties is not basis for denying it to the other.
Finding that agreed exchange, that is motor carrier's payment and service at airport in return for exclusive
franchise from board of county commissioners, could be guaranteed by each party with substantial certainty
was supported by evidence in carrier's action for specific performance.
18. Injunction.
Injunctive relief was available to prohibit interference with motor carrier's exclusive franchise which was
a property right.
19. Jury; Trial.
Board of county commissioners and competing motor carrier, against whom plaintiff motor carrier sought
equitable relief of injunction and specific performance, were not entitled to jury trial as matter of right, and
trial court did not abuse discretion in refusing request for advisory jury. NRCP 39(c).
20. Trial.
Request for advisory jury as to issues to which parties are not entitled to jury as matter of right is
addressed to trial court's discretion. NRCP 39(c).
OPINION
By the Court, Thompson, J.:
This litigation came about as the result of a dispute over which one of two competing
common carriers has the exclusive limousine ground transportation franchise for servicing the
Las Vegas airport. Las Vegas-Tonopah-Reno Stage Lines, Inc. (LTR) and Tanner Motor
Tours of Nevada, Ltd. (Tanner) each claim such franchise because of certain action taken by
the Board of Clark County Commissioners (Board) as the governing authority of the Las
Vegas airport. Tanner's claim is based upon a bid submitted pursuant to invitation, and the
Board's acceptance thereof on November 9, 1959. LTR's claim is based upon a written
agreement with the Board, made April 1, 1960, despite its prior acceptance of the Tanner
proposal. The lower court found in favor of Tanner. The judgment entered directed the Board
to execute and specifically perform a written contract with Tanner; nullified the written
contract which the Board had made with LTR; and enjoined LTR from interfering with the
exclusive franchise in Tanner thus adjudged. LTR and the Board appeal. Before considering
the merits we must dispose of a preliminary motion.
[Headnote 1]
I. Tanner's motion to dismiss the Board's appeal. The Board's notice of appeal was
defective under NRCP 72(b) and 73(b) in that it did not purport to appeal from any
appealable order or judgment. The appeal was taken from the findings of fact and conclusions
of law. Such defect is the basis for Tanner's motion to dismiss the Board's appeal. Were the
Board the sole appellant, and the record otherwise silent, we would grant the motion.
However, such is not the case before us. The coappellant LTR properly perfected its appeal.
In addition, the record discloses that, within the time designated by NRCP 73{a) for
taking an appeal, all parties, i.e., Tanner, LTR and the Board, stipulated that the appeals
of LTR and the Board could be consolidated. Cf. Commercial Credit v. Matthews, 77 Nev.
377
coappellant LTR properly perfected its appeal. In addition, the record discloses that, within
the time designated by NRCP 73(a) for taking an appeal, all parties, i.e., Tanner, LTR and the
Board, stipulated that the appeals of LTR and the Board could be consolidated. Cf.
Commercial Credit v. Matthews, 77 Nev. 377, 365 P.2d 303. As the jurisdiction of this court
over the subject matter of the case was properly invoked by the appeal of LTR, we shall deem
the defect of the Board's notice of appeal to be an irregularity, not jurisdictional in nature.
Misner v. Stange, 208 Mich. 680, 176 N.W. 417. We therefore deny Tanner's motion to
dismiss the Board's appeal. Having thus concluded to entertain the Board's appeal, we shall
also grant its motion to adopt the briefs of its coappellant LTR.
II. Basic questions to be resolved. We believe that the judgment below must be affirmed.
There are multiple issues. For clarity, the factual information necessary to the determination
of each issue will be related as that issue is discussed. Five major and numerous subsidiary
points are raised, the major ones being: First, does NRS 244.315, requiring the Board (County
Commissioners) to advertise for bids in letting contracts where the aggregate thereof exceeds
$1,000, apply to an exclusive franchise to furnish ground transportation service to the Las
Vegas airportor, is this subject governed by the Municipal Airports Act, NRS
496.010-496.290? Second, was an exclusive franchise granted Tanner by the Board, i.e., did
those parties enter into an agreement? Third, was the memorandum of agreement,
expressing the consideration, legally sufficient to satisfy the statute of frauds, NRS 111.220?
Fourth, was the agreement properly the subject of a judgment directing its specific
performance? Fifth, were the Board and LTR entitled to a jury trial as a matter of right? We
turn to discuss these questions.
1. The Municipal Airports Act governs. From January 1, 1949 through October 20, 1959,
Tanner, pursuant to a written agreement with the Board granting it an exclusive franchise, had
provided all forms of ground transportation service to the Las Vegas airport.
On September 21, 1959, the Board directed its clerk to publish an invitation for bids for the
limousine franchise at said airport, such bids to be opened on October 20, 1959. In response
to such invitation LTR and Tanner (and one other with whom we are not concerned)
submitted written bids. LTR proposed to supply such service for a period of ten years, and
pay therefor a 15 percent commission on the moneys received to and from the airport. Tanner
offered to supply the service for a like period and pay for the franchise $3,600 per year, in
advance, or 10 percent of the gross proceeds, whichever is greater, to be adjusted annually on
the anniversary date of the contract. On October 29, 1959, the airport manager recommended
the Board's acceptance of the Tanner proposal. On November 9, 1959, the Board, by
resolution, and pursuant to the recommendation of the airport manager, accepted the Tanner
bid because it was the highest qualified bidder due to the fact that a minimum guarantee was
offered. What thereafter occurred will be subsequently referred to. For the purpose of
resolving the first question, the foregoing facts supply a sufficient background.
The Board and LTR contend that the Tanner bid was not submitted by the highest
responsible bidder within NRS 244.315(3) [requiring the contract to be let to the lowest
responsible bidder] believing that the term lowest responsible bidder must be construed to
mean the highest responsible bidder when the Board is receiving rather than paying out
money; that the bid of LTR would, in fact, produce more revenue, as indicated by the gross
proceeds of prior years; that there was no question as to the responsibility of the two
competitors, each being responsible, and concluding that the Board, as a matter of statutory
mandate, was required to accept the LTR bid. We need not determine such contentions for we
agree with the lower court and Tanner that the provisions of NRS 244.315 do not apply to
this case.
In Tanner Motor Tours v. Brown, 71 Nev. 73, 280 P.2d 291, we held that 1973, NCL
1929, prohibiting any member of a board of county commissioners from voting on a contract
extending beyond his term of office, was repealed by the Municipal Airports Act insofar as it
concerned activities covered by that act, and that a five-year contract to furnish ground
transportation service for the Las Vegas airport was, therefore, lawful.1 The Tanner Motor
Tours v. Brown decision is persuasive, though not absolute authority, for our view herein
that NRS 244.315 has no application. The Board and LTR insist that NRS 496.090 of the
Municipal Airports Act and NRS 244.315 can be read together, and each be given full
effect without doing violence to either; that such was not the case in Tanner Motor Tours
v. Brown.
repealed by the Municipal Airports Act insofar as it concerned activities covered by that act,
and that a five-year contract to furnish ground transportation service for the Las Vegas airport
was, therefore, lawful.
1
The Tanner Motor Tours v. Brown decision is persuasive, though
not absolute authority, for our view herein that NRS 244.315 has no application. The Board
and LTR insist that NRS 496.090 of the Municipal Airports Act and NRS 244.315 can be
read together, and each be given full effect without doing violence to either; that such was not
the case in Tanner Motor Tours v. Brown. We do not agree that the mentioned sections can
be read together. They are basically inconsistent.
[Headnotes 2-4]
NRS 496.090 permits the Board, in operating an airport, to enter into contracts and leases
and establish the terms and conditions and fix the charges, rentals or fees for the privileges
or services, which shall be reasonable and uniform for the same class of privilege or service
and shall be established with due regard to the property and improvements used and the
expenses of operation. Such is the statutory standard established to guide the Board in
making a contract or lease concerned with the operation of an airport. A simple example will
serve to prove that such standard is not compatible with the lowest responsible bidder
mandate of NRS 244.315(3). Suppose the limousine ground transportation service was
granted to more than one carrier, i.e., on a nonexclusive basis, the Board (though it chose not
to do so here) could lawfully enter into more than one contract for the supplying of such
service, if the fees fixed therefor were reasonable and uniform. Is it not apparent that, in such
supposed circumstance, the bidding provisions of NRS 244.315(3) could not apply? We think
so. The incompatibility of NRS 244.315 with NRS 496.090 is thus revealed, causing us to
conclude that they may not be read in pari materia. Indeed, NRS 224.315 applies to the letting
of all contracts except as otherwise provided by law."
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1
The ruling in Tanner Motor Tour's v. Brown his since been codified. See NRS 495.050 and 495.060.
otherwise provided by law. We believe that a contract to supply ground transportation
service to a municipal airport is squarely within the applicable provisions of the Municipal
Airports Act, and consequently excluded from NRS 244.315 by the express terms of the
latter. Accordingly, we hold that NRS 244.315 requiring the Board (County Commissioners)
to advertise for bids in letting contracts where the aggregate thereof exceeds $1,000, does not
apply to a contract to furnish ground transportation service to the Las Vegas airport.
2

2. The Board made an agreement with Tanner. Having initially decided to entertain the
Board's appeal (discussion, point 1, supra) we are compelled to resolve the questions as to
whether an agreement was made with Tanner and, if one was made, whether it satisfies the
statute of frauds and is properly the subject of a judgment directing its specific performance.
[Headnote 5]
We have related that the Board advertised for bids; that Tanner submitted its proposal and
that the Board, by resolution, accepted Tanner's offer on November 9, 1959. The
advertisement, proposal and acceptance established a meeting of the minds on the following
elementsthe parties, the subject matter, the consideration and the contract term.
Notwithstanding this fact, the Board urges that the so-called agreement is fatally deficient in
that it contains no reference to, nor provisions for, many essential and additional elements
necessary to a ground transportation franchise.
3
It directs our attention to the total absence of
provisions regarding the terminal points of service, maintenance of vehicles, the furnishing of
competent drivers, space at the terminal building, the keeping of books and records,
indemnification, assignability and sundry other items. The lower court supplied such absent
provisions by reference to the written agreement, as amended from time to time, under
which Tanner had been furnishing the ground transportation for many years.
____________________

2
Use of the bidding process as a means for consummating a contract for airport ground transportation service
is not precluded. Such a procedure may be selected by the Board without regard to NRS 244.315.

3
Had LTR alone appealed, its standing to raise the mentioned issue might be subject to question. However,
we do not decide the matter because the Board, as the other party to the alleged agreement with Tanner, may
properly raise all issues regarding the making and the enforceability thereof.
lower court supplied such absent provisions by reference to the written agreement, as
amended from time to time, under which Tanner had been furnishing the ground
transportation for many years. Whether it properly did so depends upon whether the evidence
will support a conclusion that the contracting parties (Board and Tanner) on November 9,
1959 (the date of the acceptance of Tanner's bid), intended to incorporate such provisions.
See: Reno Club v. Young Investment Co., 64 Nev. 312, 182 P.2d 1011, 173 A.L.R. 1145. We
believe that it does.
The resident manager of Tanner testified that, through conversations with the county
commissioners before November 9, 1959, he was led to believe that the new agreement
would be the same as the old agreement, except as modified by the terms of the invitation for
bids, and the bid submitted. One of the county commissioners testified that the advertisement
for bids was under the old contract. Some time after the acceptance of Tanner's bid by the
Board on November 9, 1959, the district attorney was instructed to prepare a written
agreement. During the course of a conversation with the commissioners about such written
agreement and when it would be ready for signing, the resident manager of Tanner was again
advised that the new contract would be the same as the old except as modified by the bid
itself. The foregoing evidence, without more, supplies a sufficient base for the following
finding of fact made by the lower court: It is a fact that both Plaintiff and Defendants Harley
E. Harmon, Arthur Olsen and Clesse M. Turner, as the Board of Clark County
Commissioners, contemplated that the formal contract for the exclusive limousine service at
said airport would contain therein all the terms of the old contract between said parties dated
December 28, 1948, except to the extent that the same should be modified by the bid of the
Plaintiff which was accepted by said Defendant on the 9th day of November 1959.
[Headnote 6]
Despite such finding, supported by substantial evidence, the Board direct our attention
to the paramount fact that it never executed a formal contract with Tanner, and argues
that it never intended to be bound by its resolution accepting Tanner's bid.
fact that it never executed a formal contract with Tanner, and argues that it never intended to
be bound by its resolution accepting Tanner's bid. Heavy reliance is placed upon Dolge v.
Masek, 70 Nev. 314, 268 P.2d 919, wherein we held that the parties were not bound by an
oral agreement because the record disclosed an intention that there would be no contract until
a written document was finally signed. We cannot agree that Dolge is applicable here. The
resolution of acceptance of the bid must be deemed evidence of an intent by the Board to be
bound thereby. To hold otherwise would render the proceedings (invitation for bids, their
reception, and the acceptance of one) meaningless and a sham. We hold, therefore, that
binding obligations arose from Tanner's bid and its acceptance by the Board, notwithstanding
the subsequent failure to prepare and sign the contemplated formal agreement. Garfielde v.
United States, 93 U.S. 242, 23 L.Ed. 779; L. G. Arnold, Inc. v. City of Hudson, 215 Wis. 5,
254 N.W. 108; cf. Micheletti v. Fugitt, 61 Nev. 478, 134 P.2d 99.
[Headnote 7]
We must consider one additional contention before leaving this topic and turning to the
next. The Board points out that the commencement date of the new agreement is not
mentioned in either the invitation for bids, the bid, the resolution of acceptance, nor, of
course, in the old agreement between the Board and Tanner. The absence of this provision is
urged as a bar to the existence of the claimed new agreement. Tanner concedes that a
commencement date is an essential term. However, it argues that subsequent conduct of the
parties is relevant to establish their intention as of November 9, 1959 regarding the
commencement date, and that such conduct determined that date to be December 1, 1959. We
agree with Tanner. On December 16, 1959, Tanner, by check, paid the County $3,600 as the
guaranteed annual payment under the new agreement covering limousine service for the
airport from December 1, 1959 to November 30, 1960. The check was delivered to the airport
manager who deposited it to the account of Clark County. Said payment was accepted and
retained by the County.
County. Thereafter Tanner changed its mode of payment to conform with its bid, and without
protest from the Board. Though the record contains evidence indicating that the Board was
not aware of such payment until April 1960, and that such payment was made at a time when
Tanner knew that the Board was negotiating with LTR (despite its acceptance of the Tanner
bid), such evidence serves only to create a conflict which the trial court resolved against the
Board. The conduct of the airport manager, as an agent of the Board, in accepting payment in
advance of the guaranteed annual sum as provided for in Tanner's bid and the County's
acceptance thereof may be deemed to be conduct of the Board.
4
Cf. Maurice L. Bein, Inc. v.
Housing Authority, 157 Cal. App.2d 670, 321 P.2d 753; County of Lincoln v. Fischer, 216
Or. 421, 339 P.2d 1084.
3. The statute of frauds problem. NRS 111.220(1) provides that every agreement which, by
its terms, is not to be performed within one year from the making thereof, shall be void,
unless such agreement, or some note or memorandum thereof, expressing the consideration,
be in writing and subscribed by the party charged therewith. The Tanner proposal which the
Board accepted was to provide limousine airport transportation service over a 10-year period.
It could not be performed within one year and is, therefore, squarely within the mentioned
statute. Cf. Stanley v. Levy & Zentner Co., 60 Nev. 432, 112 P.2d 1047, 158 A.L.R. 76.
[Headnotes 8, 9]
The Board and LTR ask us to declare that the request for bids, the bid of Tanner submitted
in response thereto, and the Board's acceptance of the Tanner proposal, when considered
together, are not legally sufficient as a note or memorandum expressing the consideration
of the alleged agreement to satisfy the statute of frauds. LTR, as a stranger to the alleged
agreement between the Board and Tanner, is without standing to seek such a declaration.
____________________

4
The airport manager was, in a very real sense, the right arm of the Board in supervising the airport. Books
and records regarding all fares received were to be made available for his inspection; he had authority to adopt
and enforce rules re parking, solicitation by taxis, etc.
seek such a declaration. The defense of the statute of frauds is personal, and available only to
the contracting parties or their successors in interest. Stitt v. Ward, 142 App.Div. 626, 127
N.Y.S. 351; Schuster v. Pennsylvania Turnpike Commission, 395 Pa. 441, 149 A.2d 447. Nor
shall we honor the Board's request in this regard, for the record contains substantial evidence
upon which to base an estoppel against the Board to assert such a claim.
[Headnotes 10-12]
Following acceptance of the Tanner bid, the Board assured Tanner that a formal written
agreement would be prepared for signature. In reliance, Tanner continued to provide
limousine service at the airport, paid $3,600 as the minimum guarantee for the ensuing year,
and purchased two new 1960 model limousines at the cost of about $9,000. We acknowledge
the general rule that, in the absence of fraud, a promise to reduce an agreement to writing is
not, standing alone, a basis for invoking an estoppel against raising the statute of frauds in
defense. Union Car Advertising Co. v. Boston Elevated Ry. Co., 26 F.2d 755, 58 A.L.R.
1007; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721. It is likewise
true, as a general rule, that part performance of an agreement within the one year provision
of the statute of frauds, without more, will not preclude the bar of the statute. Nehls v.
William Stock Farming Co., 43 Nev. 253, 184 P. 212, 185 P. 563. However, where both
occur, i.e., a promise to reduce an agreement to writing and part performance by the
promisee, an estoppel is properly invoked and the main agreement enforced. Seymour v.
Oelrichs, 156 Cal. 782, 106 P. 88; Alaska Airlines v. Stephenson, 217 F.2d 295, 15 Alaska
272; Interstate Co. v. Bry-Block Mercantile Co., 6 Cir., 30 F.2d 172; annot., 6 A.L.R.2d
1053. We conclude, therefore, that the Board, in the instant case, is estopped to rely upon
NRS 111.220 as a defense to this action.
4. Specific performance was proper. It is next urged upon us that the remedy of specific
performance is not available to Tanner because: there exists an adequate remedy at law for
breach of contract and damages; the alleged agreement between the Board and Tanner is too
uncertain to be specifically enforced; and, there is absent mutuality of remedy.
uncertain to be specifically enforced; and, there is absent mutuality of remedy. We do not
agree that the lower court erred in directing the Board to execute a formal contract with
Tanner and thereafter specifically perform the same.
5

[Headnote 13]
A. The legal remedy is not adequate. Equity has recognized that a contract awarding an
exclusive franchise is subject to specific performance at the instance of the franchise holder.
Fraser v. Cohen, 159 Fla. 253, 31 So.2d 463; Turner v. Hampton, 30 Ky.L. 179, 97 S.W. 761.
The legal remedy is deemed inadequate primarily because of the difficulty in fairly
determining damage. The case before us is exemplary in this respect. The franchise covers a
10-year period. The money to be paid the Board yearly is predicated upon gross receipts (with
a guaranteed minimum payment). What the future will reveal in this respect must await the
event; it cannot be forecast with any degree of certainty. Fleischer v. James Drug Stores, 1
N.J. 138, 62 A.2d 383. The inability of any court to make an appropriate damage award for
breach of contract, had Tanner requested same, is evident.
[Headnotes 14, 15]
B. The agreement is not uncertain. As this suit in equity is an affirmative proceeding to
procure the performance of obligations, a clear and precise understanding of the terms of the
contract is normally required. Annot., 65 A.L.R. 7, 102. The contract must be reasonably
certain as to its subject matter, its stipulations, its purposes, its parties and the circumstances
under which it was made. 4 Pomeroy, Equity Jurisprudence, p. 1042; cf. Dodge Bros. Inc. v.
Williams Estate Co., 52 Nev. 364, 287 P. 282. In our discussion under point two of this
opinion, relating to the terms of the agreement in question, it was pointed out wherein the
evidence supported the finding made below that the contracting parties intended to
incorporate the provisions of their prior written agreement, as amended from time to
time.
____________________

5
Again we doubt LTR's standing as a stranger to the contract, to raise this issue, but do not decide the point
because the coappellant Board does have standing.
intended to incorporate the provisions of their prior written agreement, as amended from time
to time. That agreement is specific, detailed and certain. Hence, there can be no problem in
this regard.
C. Regarding mutuality. In Turley v. Thomas, 31 Nev. 181, 101 P. 568, involving different
circumstances, we considered whether mutuality of remedy need exist as a condition to
granting specific performance. In that case, specific performance was decreed even though
mutuality was not present. The rule of mutuality of remedy as declared in Fry on Specific
Performance 286 (3d ed.), to which the opinion made reference, was not followed. The
Turley decision reflects one of the many exceptions to the mutuality of remedy rule.
Whether that rule has validity today is doubtful. Justice Cardozo, in Epstein v. Gluckin, 233
N.Y. 490, 135 N.E. 861, 862, made this observation: If there ever was a rule that mutuality
of remedy existing, not merely at the time of the decree, but at the time of the formation of
the contract, is a condition of equitable relief, it has been so qualified by exceptions that,
viewed as a precept of general validity, it has ceased to be a rule today, * * *. What equity
exacts today as a condition of relief is the assurance that the decree, if rendered, will operate
without injustice or oppression either to plaintiff or defendant. * * *. Mutuality of remedy is
important insofar only as its presence is essential to the attainment of that end. The formula
had its origin in an attempt to fit the equitable remedy to the needs of equal justice. We may
not suffer it to petrify at the cost of its animating principal.
[Headnotes 16, 17]
The following authorities are in accord with Justice Cardozo's observation, and represent
the modern view, which we believe sound: Fleischer v. James Drug Stores, 1 N.J. 138, 62
A.2d 383; Sharpless-Hendler Ice Cream Co. v. Davis, 16 Del.Ch. 315, 147 A. 305; Driebe v.
Fort Penn Realty Co., 331 Pa. 314, 200 A. 62, 117 A.L.R. 1091; Guzzi v. Czaja, 163
Pa.Super. 597, 63 A.2d 426; Cities Service Oil Co. v. Kuckuck, 221 Wis. 633, 267 N.W. 322;
VanZandt v. Heilman, 54 N.M. 97, 214 P.2d S64, 22 A.L.R.2d 497; Temple Enterprises v.
Combs, 164 Or. 133, 100 P.2d 613, 12S A.L.R. S56; 3 Williston, Contracts, 2567 { 1442,
Rev.Ed.); Restatement, Contracts 372 {1932).
864, 22 A.L.R.2d 497; Temple Enterprises v. Combs, 164 Or. 133, 100 P.2d 613, 128 A.L.R.
856; 3 Williston, Contracts, 2567 ( 1442, Rev.Ed.); Restatement, Contracts 372 (1932).
We adopt the Restatement view (supra) and hold that if the agreed exchange can, with
substantial certainty, be guaranteed to both parties, the fact that the remedy of specific
performance is not available to one of the parties is not a basis for denying it to the other
party.
6
In the instant case, the record supports a conclusion that the agreed exchange
(Tanner's payment and service in return for an exclusive franchise) can be guaranteed each
party with substantial certainty.
[Headnote 18]
Thrown in as a part of the general contention that equitable remedies were not available to
Tanner, is the Board's claim that injunctive relief was improper. Again, we cannot agree. An
exclusive franchise is a property right. Injunctive relief is available to prohibit interference
with it. Conway v. Taylor, 66 U.S. (1 Black) 603 (1861), 17 L.Ed. 191; Montgomery
Enterprises v. Empire Theatre Co., 204 Ala. 566, 86 So. 880, 19 A.L.R. 987; Vicksburg
Waterworks Co. v. Vicksburg, 185 U.S. 65, 22 S.Ct. 585, 46 L.Ed. 808; Boise Street Car Co.
v. Van Avery, 61 Idaho 502, 103 P.2d 1107. Equitable intervention is needed to protect the
vitality of an exclusive franchise, for the moment the right becomes common the franchise
ceases to exist.
5. The denial of a jury trial was not error. This action was commenced by Tanner seeking
injunctive relief against LTR prohibiting interference with the alleged agreement between
Tanner and the Board, and directing the Board to execute a formal agreement with Tanner
and thereafter specifically perform the same. Pursuant to NRCP 39, the Board and Tanner
each demanded a jury trial of all issues so triable as a matter of right, and also of all issues
not so triable.
____________________

6
Though not expressed by brief or otherwise, the Board presumably contends that it could not have obtained
specific performance because of the difficulty encountered in supervising and enforcing performance by Tanner
over a 10-year period. Because of our holding regarding the mutuality of remedy rule, we need not discuss
such presumed contention.
of right, and also of all issues not so triable. The lower court denied their demand. Such
denial is assigned as error.
In support of the claimed error, comfort is sought from the United States Supreme Court
opinion of Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44. That case is not
in point, for the complaint therein sought, among other relief, a money judgment for breach of
contract for which an adequate legal remedy existed. Because of this, the court held that a
jury trial demand as to that claim for relief should have been honored, and reversed the cause.
[Headnotes 19, 20]
The case before us is quite different. The complaint seeks only equitable relief. We have
already held that the necessary prerequisite to the existence of an equitable remedy, the
absence of an adequate remedy at law, is present in this case. Under such circumstances, the
Board and LTR were not entitled to a jury trial as a matter of right. Cf. Musgrave v. Casey, 68
Nev. 471, 235 P.2d 729; Lake v. Tolles, 8 Nev. 285; Crosier v. McLaughlin, 1 Nev. 348.
Further, the request for an advisory jury (as to all issues to which they were not entitled to a
jury as a matter of right) is addressed to the trial court's discretion. NRCP 39(c). Thus, we
find no merit in this assignment of error.
We have mentioned herein that on April 1, 1960 the Board and LTR executed a formal
written agreement granting the latter the exclusive limousine ground transportation franchise
servicing the Las Vegas airport. The judgment below declared said agreement null and void
and of no effect whatever.
7
We agree that the Board-LTR agreement is not effective to grant
LTR the franchise in question. However, we express no opinion as to possible liabilities
resulting from its execution.
The judgment below is affirmed.
Badt, C. J., and McNamee, J., concur.
____________________

7
The judgment relates the date of the agreement to be March 8, 1960. We find only an agreement in the
record dated April 1, 1960.
____________
79 Nev. 21, 21 (1963) Ex Parte Becker
In the Matter of the Petition of ALFRED BECKER
for Review of Bar Examination, 1962.
No. 4579
January 10, 1963 377 P.2d 631
Proceeding in the matter of the application of Alfred Becker for a license to practice law.
Original proceeding on petition for review of recommendation of the Board of Bar
Examiners that applicant be denied admission to the State Bar because of failure to obtain a
passing grade in bar examination. The Supreme Court held that on such petition to review an
examination of all of applicant's answers to all questions in the examination would not be
undertaken, and that failure to pass the examination was proper basis for determination of
academic qualifications.
Petition denied.
Petitioner in Pro. Per.
Howard L. Cunningham, Chairman, Board of Bar Examiners, and Robert R. Herz,
Executive Secretary, State Bar of Nevada, of Reno, for State Bar of Nevada.
1. Attorney and Client.
Embellishment of charge of improper grading of applicant's bar examination by denominating such
alleged improper grading fraud, imposition and coercion, added nothing to relief sought of regrading by the
Supreme Court.
It would not be determined whether there was a violation of Supreme Court Rules in submitting certain
questions in a bar examination where record established that applicant for admission would have failed to
pass the examination even though given a grade of 100 percent on the questions of which complaint was
made. SCR 52(2)(f).
Rules of the Supreme Court do not require that a model answer to a question in a bar examination be
available for comparison purposes or otherwise.
Applicant's failure to pass bar examination was a proper basis for adverse determination of his academic
qualifications.
On a petition to review recommendation of Board of Bar Examiners that an applicant be denied
admission to the State Bar because of failure to obtain a passing grade in a bar
examination, Supreme Court would not undertake to examine all of applicant's
answers to all questions in the examination.
Bar because of failure to obtain a passing grade in a bar examination, Supreme Court would not undertake
to examine all of applicant's answers to all questions in the examination.
OPINION
Per Curiam:
This is a petition for review of the recommendation of the Board of Bar Examiners that
Alfred Becker be denied admission to the State Bar of Nevada.
It is alleged therein that petitioner formally prepared for the practice of law at Brooklyn
Law School where he received the degrees of Bachelor of Laws and Master of Laws; that he
successfully passed the New York State Bar examination and is now a member in good
standing of the Bar in that state; that he has been a bona fide resident of Nevada since April
1959; that he took the 1960, 1961 and 1962 Nevada State Bar examinations and failed to pass
the written examination each time; and that he received the grade of 71.36 percent in the 1962
Nevada State Bar examination. All of the foregoing allegations are admitted by the
respondent Board of Bar Examiners.
Petitioner also alleges that he was prevented from passing the 1962 Nevada State Bar
examination: (a) through the fraud and imposition of the Board of Bar Examiners in that said
Board had arbitrarily, unjustly, and in a discriminatory manner determined in advance the
number of applicants who should be permitted to pass the examination and selected questions
to be propounded to applicants of such a nature that, rated on an arbitrary, unreasonable and
abstract scale of 100 percent, it was possible to pass or reject at will any number of applicants
taking the examination, and that the Board of Bar Examiners had thus refused to consider all
the qualifications of your petitioner for admission to the Nevada Bar; (b) through the
imposition of the Board of Bar Examiners in that it appeared that two of the questions
required a memorized knowledge of statutes or local law in violation of Rule 52(2)(f)
Supreme Court Rules;1 {c) through the coercion of the Board of Bar Examiners in that
because no model answer was available, petitioner could not compare his answers to any
model, and for such reason he was coerced into accepting the abstract statement of the
Board that he failed to pass the written examination; {d) through the imposition and
coercion of the Board in that some examiners graded the examination papers more
severely than others and hence "the examination subjects were not graded on the same
degree of difficulty or the same standards of excellence"; {e) in that the gradings of his
answers in the 1962 examination were unjustly severe and that he has been made a
victim of unfairness, arbitrariness, fraud and dishonesty in the marking and grading of his
papers; and {f) through the coercion and imposition of the Board in that the examination
taken by him was not properly designed to determine his academic fitness to become a
member of the Nevada Bar.
Court Rules;
1
(c) through the coercion of the Board of Bar Examiners in that because no
model answer was available, petitioner could not compare his answers to any model, and for
such reason he was coerced into accepting the abstract statement of the Board that he failed to
pass the written examination; (d) through the imposition and coercion of the Board in that
some examiners graded the examination papers more severely than others and hence the
examination subjects were not graded on the same degree of difficulty or the same standards
of excellence; (e) in that the gradings of his answers in the 1962 examination were unjustly
severe and that he has been made a victim of unfairness, arbitrariness, fraud and dishonesty in
the marking and grading of his papers; and (f) through the coercion and imposition of the
Board in that the examination taken by him was not properly designed to determine his
academic fitness to become a member of the Nevada Bar. All of the further allegations
contained in this paragraph were denied. No evidence was presented in support of these
allegations.
[Headnote 1]
In essence, the complaint of petitioner is that his examination was graded improperly and
he seeks a regrading by this court. The embellishment of the charge of improper grading by
denominating it fraud, imposition and coercion adds nothing to the nature of the relief sought.
Ex parte Chachas, 78 Nev. 102, 369 P.2d 455.
[Headnote 2]
We need not determine whether there was a violation of Rule 52(2)(f) Supreme Court
Rules, because the records on file with this court establish that petitioner would have failed to
pass the Bar examination even though given a grade of 100 percent on each of the two
questions of which he complains.
____________________

1
Rule 52 delineates the type and the subjects of the Bar examination, and 2(f) thereof states in part * * *
but no questions will be asked calling for memorized knowledge of statutes or local law * * *.
[Headnote 3]
Petitioner's complaint that no model answer was available is without merit, because our
rules do not require that a model answer be available for comparison purposes or otherwise.
[Headnote 4]
The failure of petitioner to pass the examination was the sole basis of the Board's
recommendation that he be denied a license to practice. This is a proper basis for
determination of the academic qualifications of an applicant. In re Myles, 64 Nev. 217, 180
P.2d 99.
[Headnote 5]
On a petition in this court to review the recommendation of the Board of Bar Examiners
that petitioner be denied admission to the State Bar of Nevada because he failed to obtain a
passing grade in a Bar examination, we will not undertake to examine all of the petitioner's
answers to all of the questions in the examination. Ex parte Reid, 76 Nev. 76, 349 P.2d 446;
In re Hughey, 62 Nev. 498, 156 P.2d 733.
The petition for review is denied.
____________
79 Nev. 24, 24 (1963) State v. Nystedt
THE STATE OF NEVADA, Appellant, v.
ROBERT O. NYSTEDT, Respondent.
No. 4512
January 16, 1963 377 P.2d 929
Appeal from the Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Defendant was acquitted of charges of incest and rape. The lower court rendered
judgment, and the state appealed. The Supreme Court, McNamee, J., held, inter alia, that
excluding evidence that previously defendant allegedly had committed other offenses
involving a minor other than the minor involved in the offenses for which he was being tried
was not abuse of discretion, in view of the prejudicial nature of such evidence.
Affirmed.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Herbert F.
Ahlswede, Chief Deputy District Attorney, Washoe County, for Appellant.
Stanley H. Brown and Peter Echeverria, of Reno, for Respondent.
1. Criminal Law.
Offer of proof should state specific purpose for which such offer is made.
2. Criminal Law.
In prosecution for incest and rape, excluding evidence that previously defendant allegedly had
contributed to delinquency of a minor, had been accomplice in act of sodomy accompanied by act
contributing to delinquency of a minor, and had committed act of sodomy, each such offense allegedly
involving a minor other than minor involved in offenses for which defendant was on trial, was not abuse of
discretion, in view of prejudicial nature of such evidence, since balance thus struck by trial judge between
prejudice and probative weight was not manifestly wrong.
3. Criminal Law.
Proof of distinct independent offense is inadmissible, except where it tends to establish motive, intent,
absence of mistake or accident, common scheme or plan, or identity of person charged.
4. Criminal Law.
Even where relevancy under exception to general rule may be found, fair trial demands exclusion of
evidence of distinct independent offense, where by virtue of its prejudicial nature, such evidence is more
likely to distract from essential issue than to bear upon it, and determining whether admission of such
evidence will interfere with fair trial requires exercise of judicial discretion of trial judge.
5. Costs.
Attorneys appointed by trial court to defend one charged with incest and rape were entitled to additional
compensation for legal services rendered in reviewing court upon appeal by state after acquittal, such
compensation to be graduated on scale corresponding to sums allowed for services in trial court. NRS
7.260, subd. 3, 177.065, subd. 2.
OPINION
By the Court, McNamee, J.:
Respondent was acquitted in the lower court of the charges of incest and rape under an
information which alleged that in May 1961 he had had sexual intercourse with his natural
daughter of the age of 16 years.
with his natural daughter of the age of 16 years. Pursuant to NRS 177.065 the State has
appealed, specifying three errors at law committed in the court below.
During the trial, the lower court denied the State's offer to prove through its witness,
respondent's 17 year old son, that prior to the commission of the offenses charged,
respondent: (1) in April 1957 contributed to the delinquency of a minor other than the minor
involved in the offenses with which respondent was charged; (2) in the summer of 1957
respondent was an accomplice in an act of sodomy accompanied by an act contributing to the
delinquency of a minor, neither of which concerned the minor involved in the offenses with
which he was charged; and (3) at an unspecified date respondent committed sodomy with a
minor other than the minor involved in the offenses with which he was charged.
The State's purpose for the offers of proof 1 and 2 does not appear in the transcript. As to
offer of proof 3, the State stated that the purpose of this offer was to show a common scheme
on the part of the respondent and respondent's motive for the commission of the acts of which
he stands charged.
[Headnotes 1, 2]
Although we could sustain the action of the trial court in denying offers 1 and 2 for the
reason that they failed to contain a statement of the specific purpose for which these offers
were made, 1 Wigmore, Evidence 17 (3rd ed. 1940), we hold that it was not error for the
trial court to deny the three offers of proof under our decision in the case of Nester v. State,
75 Nev. 41, 334 P.2d 524.
[Headnote 3]
In Nester, we stated the general rule that on the trial of a person accused of crime, proof of
a distinct independent offense is inadmissible, and then cited the five exceptions thereto, to
wit, when the other crime tends to establish motive, intent, the absence of mistake or
accident, a common scheme or plan embracing the commission of two or more crimes so
related to each other that proof of one tends to establish the others, and the identity of the
person charged.
that proof of one tends to establish the others, and the identity of the person charged.
[Headnote 4]
Even if we were in accord with the State's position that such proffered testimony was
admissible under one of the exceptions to the general rule forbidding evidence of a separate
and distinct offense, and if we disregarded the element of remoteness, error would not be
declared, because of a trial court's discretionary power to preclude jury knowledge of such
prejudicial material. To state it differently: The fact that the reception of such evidence under
some cases may not be considered error does not mean that the refusal to receive it is error.
All of the authorities consider only the question of whether error occurred in receiving such
evidence. As stated in Nester, 75 Nev. 41, 54, 334 P.2d 524, 531: Even where relevancy
under an exception to the general rule may be found, fair trial demands that the evidence not
be admitted in cases where, by virtue of its prejudicial nature, it is more likely to distract from
the essential issue than to bear upon it.
Whether, under the circumstances, admission of the evidence interferes with fair trial, can
hardly be determined by fixed rule of law. It would seem to require, instead, the exercise of
judicial discretion of the trial judge.
As in that case, we cannot say that the balance struck by the trial judge between prejudice
and probative weight was manifestly wrong.
[Headnote 5]
The two attorneys for respondent were appointed by the trial court to defend respondent in
that court, and they were allowed fees for their services therein. Because of the State's appeal
after acquittal, they were not compelled to follow the case to this court without compensation.
They have performed satisfactorily the legal services required of them in this court. Pursuant
to subsection 2 of NRS 177.065 they are entitled to further compensation.
The rulings of the lower court upon the questions of law submitted to this court are
affirmed, and the lower court is directed to give each of respondent's attorneys the certificate
specified in subsection 3 of NRS 7.260 to enable them to recover an enlarged compensation
to be graduated on a scale corresponding to the sums already allowed.
Affirmed.
Badt, C. J., and Thompson, J., concur.
____________
79 Nev. 28, 28 (1963) Ex Parte Kellar
In the Matter of the Petition of CHARLES L. KELLAR to Review the Recommendation of
the Board of Bar Examiners That He Be Denied Admission to the State Bar of Nevada.
No. 4577
January 21, 1963 377 P.2d 927
On preliminary motions to disclose confidential material, to strike averments of
respondent's answer, and for particulars.
Proceeding on petition to review recommendation of the Board of Bar Examiners that
petitioner be denied admission. On preliminary motions of petitioner the Supreme Court held
that where every subject of significance contained in confidential written reports concerning
character of petitioner had been referred to in hearing, motion to disclose confidential written
reports would be denied by Supreme Court.
Motions denied.
[Rehearing denied February 18, 1963]
Bert Goldwater, of Reno, and Howard W. Babcock, of Las Vegas, for Petitioner.
Howard L. Cunningham and Robert R. Herz, of Reno, for Respondent Board of Bar
Examiners.
Where every subject of significance contained in confidential written reports concerning character of
applicant for admission to bar had been referred to in hearing accorded applicant, applicant's motion to
disclose confidential written reports would be denied. SCR 57.
Motion by applicant, petitioning for review of Board of Bar Examiners' denial of application for
admission to practice law, to strike averments regarding statements applicant made to press after Board had
recommended denial of application, would not be granted as Supreme Court preferred to have all
information which might be relevant to issues. SCR 57.
Recommendation of Board of Bar Examiners that applicant be denied admission to practice of law was of
sufficient particularity to apprise applicant of reasons for Board's conclusion and his motion to require
Board, in hearing on petition for review of recommendation, to specify with particularity facts supporting
its recommendation would be denied. SCR 57.
OPINION
Per Curiam:
Charles L. Kellar, an applicant for admission to the bar of Nevada, received a passing
grade on the 1961 bar examination. He has petitioned this court to review the
recommendation of the Board of Bar Examiners that he be denied admission to practice law
in Nevada for failure to meet requisite character standards. S.C.R. 57. The Board has
answered such petition. This opinion is directed to three preliminary motions presented by
Kellar.
[Headnote 1]
1. The motion to disclose confidential written reports. The Board requested the National
Conference of Bar Examiners to furnish a character report regarding Kellar. It did so upon the
express understanding that such report was confidential and for sole use by the Board and this
court. The record before us also contains confidential written material from other sources.
Keller asks that all confidential written material be revealed to him, notwithstanding the
provision of S.C.R. 57{2) reading: "If an applicant has failed to qualify in the opinion of
the board of bar examiners by reason of failure to meet the character standards required
by the board of bar examiners, the applicant shall be entitled to review all of the reports
regarding his character submitted by the board of bar examiners except confidential
reports."
S.C.R. 57(2) reading: If an applicant has failed to qualify in the opinion of the board of bar
examiners by reason of failure to meet the character standards required by the board of bar
examiners, the applicant shall be entitled to review all of the reports regarding his character
submitted by the board of bar examiners except confidential reports.
We have examined the entire record herein with great care. Much of the confidential
information reflects favorably upon Keller's character and fitness to practice law. Some of it
is of such a nature as to indicate the advisability of further inquiry of the applicant about the
subject matters contained therein. Such inquiry was made during the course of hearings
conducted by the local administrative committee of the Clark County Bar Association on
January 8 and March 21, 1962 and by the Board of Bar Examiners on July 12 and 13, 1962.
Thus, Kellar has already been granted the opportunity to explain and discuss such matters and
has done so in considerable detail at said hearings. Our study of the record reveals that every
subject of significance contained in the confidential reports and touching upon Kellar's
character and fitness to practice law in Nevada was referred to during the mentioned hearings
and is, therefore, contained in the nonconfidential or open record of this matter. Under such
circumstances, we deny Kellar's motion to disclose the confidential written reports. Cf.
Application of Guberman, 90 Ariz. 27, 363 P.2d 617; Application of Warren, 149 Conn. 266,
178 A.2d 528.
[Headnote 2]
2. Motion to strike certain averments of the Board's answer. We are requested to strike
from the Board's verified answer the fourth and sixth defenses thereof. They relate to
statements made by Kellar to the press and during a television broadcast, which accuse the
Board of engaging in a course of conduct calculated to exclude negroes from the practice of
law in Nevada. It is alleged that the statements were misleading and false, and made at a
time when the instant proceeding was pending before this court; that the statements
reflect unfavorably upon the applicant's character as a lawyer and a man and are in
violation of Canon 20 of the Canons of Professional Ethics of the American Bar Association
as interpreted by the numerical opinions of the Standing Committee on Professional
Ethics of the American Bar Association.1
misleading and false, and made at a time when the instant proceeding was pending before this
court; that the statements reflect unfavorably upon the applicant's character as a lawyer and a
man and are in violation of Canon 20 of the Canons of Professional Ethics of the American
Bar Association as interpreted by the numerical opinions of the Standing Committee on
Professional Ethics of the American Bar Association.
1

The basis for the motion to strike is that the alleged statements were made at a time
subsequent to the Board's recommendation to this court and cannot be deemed relevant as
they played no part in the Board's conclusion. The Board has resisted the motion to strike,
asserting that it should not be foreclosed from directing this court's attention to occurrences
believed relevant to the character of an applicant even though they happened after the Board's
recommendation was made. Cf. Application of Stone, 74 Wyo. 389, 288 P.2d 767. It is
obvious that the Board's recommendation against Kellar's admission to practice law could not
have been influenced by the matters sought to be stricken. However, it is equally apparent
that occurrences may take place during the interim between Board recommendation and final
court determination which may bear upon an applicant's qualifications and fitness to practice
law. As the responsibility for admission to the Bar of Nevada is ultimately ours, we prefer to
have all information which may be relevant to the issues presented. The allegations sought to
be deleted, if true, appear to be relevant. Whether they are true or false, partly correct and
partly incorrect, cannot be ascertained by us at this time. The interests of justice are best
served by denying the motion to strike and granting Kellar an opportunity to file herein a
verified responsive pleading to the said fourth and sixth defenses.2
____________________

1
By order of this court dated January 11, 1962, effective February 12, 1962, the Canons of Professional
Ethics of the American Bar Association, as amended, and as interpreted by the numerical opinions of the
Standing Committee of the American Bar Association, were adopted by reference and made additional rules of
professional conduct of the State Bar of Nevada. Canon 20 generally condemns publications by a lawyer as to a
pending court matter.
responsive pleading to the said fourth and sixth defenses.
2

[Headnote 3]
3. The motion to require the Board to specify particularly the facts supporting its
recommendation. The report of the Board, inter alia, states:
Your Board recommends that applicant CHARLES L. KELLAR (applicant No. 25) be
denied admission to the practice of law in the State of Nevada on the ground of failure to
meet character standards for admission to the bar.
A considerable portion of the applicant's testimony under oath before the Local
Administrative Committee for District No. 1 and before the Board of Bar Examiners was
evasive and inherently incredible. The applicant has practiced law in the State of Nevada in
violation of its statutes and rules of court. When questioned by the Local Administrative
Committee for District No. 1 and by the Board of Bar Examiners with regard to these
activities and other matters, the applicant was evasive and untruthful under oath. The
applicant used unethical tactics to coerce settlement of a lawsuit in which he had a financial
interest. Similar tactics have been used by him in conjunction with his application for
admission to the Bar. He was uncooperative with, and contemptuous and abusive towards,
both the Local Administrative Committee and the Board of Bar Examiners to such a degree
as to convince the Board that he lacks respect for law, for duly constituted authority and for
the institutions of government.
In the opinion of the Board the applicant if admitted to practice would not maintain the
respect due to the courts of justice and to the judicial officers, nor exhibit the fidelity,
honesty, trustworthiness, integrity, candor, and fairness necessary to uphold the dignity
and honor of the legal profession."
____________________

2
The second defense of the Board's answer contains a motion to strike allegations of the petition for review
that (a) petitioner is a Negro male and that his family consists of his wife and two children; (b) that the State Bar
of Nevada has never admitted a person of the Negro race to practice law during the 98 years of its existence. We
know that applicant is a Negro, and the record discloses the family unit. We know when the State Bar of Nevada
came into existence. Therefore, no purpose is served in ruling on this motion to strike and we decline to do so.
due to the courts of justice and to the judicial officers, nor exhibit the fidelity, honesty,
trustworthiness, integrity, candor, and fairness necessary to uphold the dignity and honor of
the legal profession.
We are requested to direct the Board to supply a bill of particulars as to each of the
ultimate fact conclusions quoted. The recorded nonconfidential proceedings before the
Administrative Committee and the Board relate to the subjects with which the Board's stated
conclusions deal. We do not view the report as a pleading. It is the Board's recommendation
and report, and is of sufficient particularity to apprise Kellar of the reasons for the Board's
conclusion that he be denied admission to practice. We presume that the briefs and oral
argument upon the merits will deal with the particular facts sought to be relied upon by each
side. Accordingly, this motion is denied.
____________
79 Nev. 33, 33 (1963) Freeman v. Freeman
ALICE FREEMAN, Appellant, v.
ALBERT FREEMAN, Respondent.
No. 4496
January 30, 1963 378 P.2d 264
Appeal from the Eighth Judicial District Court, Clark County; William P. Compton,
Judge.
Action by husband for divorce wherein wife filed a counterclaim for divorce. From a
judgment of the trial court granting wife a divorce, the wife appealed with respect to alimony
and the division of property. The Supreme Court, McNamee, J., held that court did not abuse
its discretion in failing to award permanent alimony to wife who lived with husband
something less than eight months before separating and who before marriage had been
employed as secretary and who planned to return to work after child born of the marriage
reached the age of two.
Affirmed.
Foley Brothers, of Las Vegas, for Appellant.
Harry E. Claiborne and John Manzonie, of Las Vegas, for Respondent.
1. Divorce.
A wife who has been granted a divorce is not entitled to alimony as a matter of law. NRS 125.150,
subds. 1, 5.
2. Divorce.
Power to grant permanent alimony is entirely statutory. NRS 125.150, subds. 1, 5.
3. Divorce.
Allowance of permanent alimony rests in sound discretion of trial court, which is to be exercised in light
of all surrounding circumstances. NRS 125.150, subds. 1, 5.
4. Divorce.
Court did not abuse its discretion in failing to award permanent alimony to wife who lived with husband
something less than eight months before separating and who before marriage had been employed as
secretary and who planned to return to work after child born of the marriage reached the age of two. NRS
125.150, subds. 1, 5.
5. Divorce.
Division of community property is within discretion of trial court. NRS 125.150, subd. 1.
OPINION
The parties hereto were married November 15, 1959. A child was born in June 1960.
Before the birth of the child the parties separated. On June 17, 1960, after the child was born,
the husband commenced this action for divorce on the ground of extreme cruelty. The wife
filed a counterclaim for divorce on the ground of extreme cruelty and the trial court granted
her the divorce.
1

The appeal taken by the wife is not from that part of the judgment which grants the
divorce,
2
but from those parts thereof relating to the division of property, support for the
wife and minor child, and from the denial of the wife's motion for a new trial.
____________________

1
The court found that the parties were each guilty of cruelty, each toward the other, however, the Defendant
was least at fault.

2
At the request of appellant the reporter's transcript of the testimony which forms a part of the Record on
Appeal does not contain the testimony pertaining to the grounds for divorce.
Appellant assigns as error:
1. The failure of the trial court to award alimony to the wife.
2. The trial court divided the property of the parties without considering the obligation of
the husband to support his wife and minor child, and refunded to him sums he had expended
for such support.
3. Respondent erroneously was awarded $2,000 as his sole and separate property when the
evidence showed that he had no such separate property.
4. The trial court erroneously determined that certain items of personal property were gifts
to the respondent rather than wedding gifts to the parties.
Appellant contends that the failure to award alimony is clearly an abuse of the court's
discretion, for the reason that the only discretion vested in the court appears to be to fix the
amount of alimony, and the court was compelled by law to make some award of alimony.
The only Nevada case cited in support of her contention is Cunningham v. Cunningham,
60 Nev. 191, 197, 102 P.2d 94, 105 P.2d 398, 400, where this court said:
The right of the wife, who has been given the divorce, to such support as to the court
shall appear adequate in view of the financial conditions of the parties, cannot be
questioned.
[Headnote 1]
In our opinion, these words mean simply that the action of the trial court in awarding
alimony in a proper case will not be disturbed on appeal. They do not mean that in all cases
where the wife is granted a divorce she is entitled to alimony as a matter of right.
[Headnote 2]
Permanent alimony in conjunction with an absolute divorce was entirely unknown to
either the common law or the ecclesiastical law. There is no such thing as a common-law
power to grant permanent alimony in connection with a divorce. The power to award
permanent alimony is wholly the creature of statute. Annot., 34 A.L.R.2d 313, 319 (1954).
The applicable Nevada statutes are as follows:
Subsection 1 of NRS 125.150 provides: 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."
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.
Subsection 5 of NRS 125.150 states in part: In the event alimony has been awarded to the
wife, or the court otherwise adjudicates the property rights of the parties * * * such alimony
so awarded, such adjudication of property rights * * * may nevertheless at any time thereafter
be modified by the court upon written stipulation * * *.
[Headnote 3]
It is clear from our statutes that, contrary to appellant's contention, a court is not compelled
by law in this state to make some award of alimony. The allowance of permanent alimony
rests within the sound discretion of the trial court to be exercised in the light of all
surrounding circumstances, and such allowances will not be disturbed on appeal.
[Headnote 4]
As heretofore stated, we do not have before us that part of the evidence pertaining to the
grounds for divorce and, consequently, we cannot ascertain whether such evidence was of a
nature which would tend to influence the court in the granting or denial of alimony. We do
know from the testimony of the wife that, aside from minor difficulties, respondent was a
good husband. Before her marriage to him she had previously been married to one Brodsky
and had a child by that marriage. Her marriage to Brodsky lasted three years. At the time of
its dissolution she did not ask for alimony, but was awarded $100 per month for support of
the Brodsky child. From the time of her divorce until her marriage to respondent she had been
employed as a secretary to the head of the advertising and publicity department of the Desert
Inn Hotel, in Las Vegas. When the Freeman baby reaches the age of two years, appellant
expects to return to work.
In view of the circumstances and the paucity of facts presented by the record we cannot
say that the trial court abused its discretion in failing to award permanent alimony to the
appellant.
[Headnote 5]
There is nothing in the record to sustain appellant's contention that the court divided the
property of the parties without considering the obligation of the husband to support his wife
and minor child. The evidence is in conflict whether the sum allotted to the husband from the
assets of the parties was his separate property or constituted a reimbursement to him for sums
he had expended for the support of his wife and child, and there was no affirmative showing
one way or the other whether the sums advanced by the husband constituted sums acquired
before marriage or were his earnings after marriage. Even if we assume that appellant is
correct in her contention that upon the record the sum allotted to the husband was community
property, it was still within the sound discretion of the trial court how the community
property should be distributed. NRS 125.150(1). Whether the items of personal property
awarded to the husband were personal gifts to him rather than wedding gifts to the parties
also was in conflict. The trial court heard the testimony of the witnesses and had before it
evidence not before us on appeal, and was better able to judge the facts than we are. The
decision of the trial court relating to the matters complained of therefore will not be
disturbed.
Affirmed. No costs are allowed, because appellant heretofore had been awarded
preliminary fees and expenses in this court.
____________
79 Nev. 38, 38 (1963) Eisentrager v. State
THOMAS ARTHUR EISENTRAGER, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 4545
February 1, 1963 378 P.2d 526
Appeal from judgment of the Eighth Judicial District Court, Clark County; John C.
Mowbray, Judge.
Defendant was convicted in the trial court of second degree murder and he appealed. The
Supreme Court, Thompson, J., held that neither unreasonable search nor unreasonable seizure
occurred in constitutional sense when police officers, upon landlord's request and without
search warrant, entered apartment, observed plain evidence of killing including body of
defendant's wife, who had been tenant, took control of premises and looked into closets and
drawers for implements and evidence of crime, and evidence found was admissible in
prosecution of defendant who had resided in that apartment.
Judgment affirmed.
[Rehearing denied March 4, 1963]
See also 76 Nev. 437, 357 P.2d 306.
Gordon L. Hawkins and Tad Porter, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City; Edward G. Marshall, District
Attorney, Clark County; and Charles L. Garner, Deputy District Attorney, Clark County, for
Respondent.
1. Searches and Seizures.
Although all evidence obtained by searches and seizures in violation of federal Constitution is
inadmissible in state court, determination of whether search and seizure was unreasonable requires careful
examination of circumstances in each case in light of nature and scope of right of privacy which Fourth
Amendment protects, and problem of what is reasonable or unreasonable official conduct is one of degree.
U.S.C.A. Const. Amend. 4.
Constitutional prohibition is not against search and seizure without warrant, but against unreasonable
search and seizure, and once it is determined that police officer's conduct is reasonable, it does not become
unreasonable, in constitutional sense, simply because it may have involved a civil trespass. NRS
179.010; U.S.C.A.Const. Amend. 4.
That parts of three days were required by police to search apartment in which defendant had resided and
in which body of defendant's wife had been discovered was unimportant with respect to question of
whether search was unreasonable. NRS 179.010, 259.050; U.S.C.A.Const. Amend. 4.
4. Criminal Law; Searches and Seizures.
Neither unreasonable search nor unreasonable seizure occurred in constitutional sense when police
officers, upon landlord's request and without search warrant, entered apartment, observed plain evidence of
killing including body of defendant's wife, who had been tenant, took control of premises and looked into
closets and drawers for implements and evidence of crime, and evidence found was admissible in
prosecution of defendant who had resided in that apartment. NRS 179.010, 259.050; U.S.C.A.Const.
Amend. 4.
5. Criminal Law.
Burden is upon party relying upon expert testimony to prove identity of object upon which testimony is
based but practicalities of proof do not require such party to negative all possibility of substitution or
tampering and he need only establish that it is reasonably certain that substitution, alteration or tampering
did not occur.
6. Criminal Law.
In absence of indication that medical technician, who extracted blood from defendant's arm and who had
sole possession of vial for approximately two minutes alone in adjoining room, substituted, altered,
changed or tampered with blood or may have been interested in doing so, evidence as to test made of blood
was admissible and doubt, if any, regarding its identity, went to its weight.
7. Criminal Law.
Proper foundation was established for admission into evidence of portion of pillow case, where mortician
in presence of police officer removed something that was around victim's neck and gave it to police officer
who marked it with his initial and later sent it to laboratory for analysis, which allegedly revealed that
stains of human blood on it were of same type as that of deceased, and opinion was given, based upon
microscopic comparison, that another portion of pillow case taken from drawer of apartment and item
found around decedent's neck were originally portions of same pillow case.
8. Criminal Law.
Reasonable diligence must be exercised to locate witness for use of his reported testimony in subsequent
trial of same cause. NRS 178.230.
9. Criminal Law.
Where police officers spent 16 to 24 man-hours attempting to locate witness, who had testified during
first trial of defendant, letter addressed to supposed permanent address of witness in Mexico was returned
and investigator from district attorney's office spent four days attempting to locate witness, reasonable
diligence was exercised to locate witness and it was not error to permit reading of absent witness' reported
testimony in second trial. NRS 178.230.
10. Criminal Law.
Error occurred when bailiff acting on his own volition permitted jury to have exhibit in jury room but
error was not prejudicial where exhibit was properly admitted into evidence. NRS 169.110, 175.390.
11. Homicide.
Although information charged death by striking victim on and about face, body and head, with hands, fist
and rolling pin and expert witness stated that victim died from two causes and that victim was helpless due
to multiple injuries and actual cause of death was due to strangulation, there was not a fatal variance
regarding cause of death between charge in information and proof adduced.
12. Homicide.
Whether cause of death of defendant's wife was the striking of wife on or about face, body and head, with
hands, fist and rolling pin as charged in information was jury question.
OPINION
During the afternoon of May 7, 1959, Mrs. Faber, the owner of the Alcazar Apartments,
and her friend, Mr. Moody, discovered a corpse in the closet of Apartment D. That evening,
Eisentrager, the appellant, turned himself in to the police. Subsequently a jury trial occurred,
and Eisentrager was found guilty of second degree murder. Judgment was pronounced and
sentence imposed. The assigned errors are separately discussed.
[Headnote 1]
1. The search and seizure of evidence.
During the trial 28 exhibits were received in evidence, over the defendant's objection that
they were gathered during the course of an unreasonable search, and in violation of his
constitutional rights. In 1961 the Supreme Court of the United States declared that all
evidence obtained by searches and seizures, in violation of the federal constitution, is by that
same authority inadmissible in a state court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6
L.Ed.2d 1081. However, it did not tell us what it is that makes a search or seizure
unreasonable. Accordingly, each case requires a careful examination of the circumstances in
the light of the nature and scope of the right of privacy which the fourth amendment
protects.
the right of privacy which the fourth amendment protects. In Wyatt v. State, 77 Nev. 490,
501, 367 P.2d 104, 110, we said: Even under the exclusionary rule where the search in
question is conducted without a warrant and without requesting permission to enter, the
criterion of whether the search is lawful is its reasonableness. As always, the problem of
what is reasonable or unreasonable official conduct is one of degree, and the circumstances
under which the question is posed are of endless variety.
The record before us reveals that Eisentrager and Ardis Mayo, the decedent, had occupied
Apartment D of the Alcazar Apartments since February 12, 1959. They were not married, but
held themselves out as man and wife. A bimonthly rent payment was due May 5, 1959, and
on that day the landlady called at the apartment and told Eisentrager that she would like to
speak to Ardis. She was informed that Ardis had gone to visit a girl friend and would be
available later. On the following day the landlady and Mr. Moody again called at the
apartment. As no answer was received, they entered to ascertain if the tenants had vacated.
No one was there, but personal effects were observed. Finally, on May 7, 1959, still anxious
to speak to Ardis Mayo, the landlady and Mr. Moody once more went to the apartment, let
themselves in, and upon a more thorough inspection, discovered a corpse (subsequently
identified as Ardis Mayo) in a closet covered by a blanket. The landlady asked Mr. Moody to
call the police, which he did. The police arrived soon thereafter. They saw the dead body,
observed a cloth material tied around the decedent's neck, as well as other physical facts
indicating that a killing had occurred. Investigation commenced immediately. On that day
drawings of the floor plan were made (Exhibits A, B), photographs taken (Exhibits C, D, E,
G-2, G-3, G-4, G-5), and sundry articles of personal property seized. Some of those articles
were in plain sight (Exhibit H, a rug; Exhibit M, portion of a pillow case). Others were
obtained by search (Exhibit I, rolling pin; Exhibit J, sport shirt; Exhibit K, towel; Exhibit L,
other half of pillow case).
of pillow case). The apartment was sealed to preclude entry by others. On the next day, May
8, the police reentered, continued their investigation, and seized additional items of evidence
(Exhibit O, towel; Exhibit P, bed leg; Exhibit Q, carpeting), all of which were in plain sight
except Exhibit N (trousers). The apartment was again sealed. On May 9 the police completed
their work at the apartment, seizing items of clothing of the deceased (Exhibits R, S, T, U, V)
which were in plain sight, and Exhibit W, a bath towel, the location of which is not disclosed
by the record.
1

It is reasonably clear that Mrs. Faber looked to Ardis Mayo for payment of rent.
Eisentrager was unemployed, and without funds. Indeed, on May 5 he had visited Ardis'
employer and obtained a $10 advance on her wages. He and Ardis had quarreled over his
inability to obtain work.
Eisentrager was not present at the apartment with the police at any time during their
investigation of the killing. The search and seizure was not incident to his arrest.
2
The police
did not obtain a search warrant. We are asked to declare the search and seizure unreasonable
in the constitutional sense. We decline to do so.
[Headnote 2]
The contention is initially made that the landlady had no authority to allow the officers to
enter the apartment. Our attention is directed to the cases of Klee v. United States, 9 Cir., 53
F.2d 58, and State v. Warfield, 184 Wis. 56, 198 N.W. 854. Such contention assumes the
existence of the relationship of landlord and tenant. Here, the rent was overdue. The rent
payer was dead. The so-called tenancy was, for all practical purposes, nonexistent. Surely,
when a landlady finds the corpse of her tenant in the apartment she may request the police to
investigate, and the police may respond to that request without first obtaining a search
warrant. Indeed, even in those cases not involving a homicide and where the
landlord-tenant relationship exists without question, entry, search and seizure with the
landlord's permission has been held reasonable under certain circumstances.
____________________

1
The remaining exhibits, blood and hair samples from the deceased, were not obtained at the apartment.

2
The arrest occurred when Eisentrager turned himself in to the police. NRS 171.230.
homicide and where the landlord-tenant relationship exists without question, entry, search
and seizure with the landlord's permission has been held reasonable under certain
circumstances. People v. Roberts, 47 Cal.2d 374, 303 P.2d 721. Whether a civil trespass was
committed is not of controlling significance. The constitutional prohibition is not against
search and seizure without a warrant, but against unreasonable search and seizure. United
States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653; Carroll v. United States,
267 U.S. 132, 147, 44 S.Ct. 280, 69 L.Ed. 543. Once it is determined that their conduct is
reasonable, it does not become unreasonable in the constitutional sense simply because it may
have involved a civil trespass. Cf. People v. Gorg, 45 Cal.2d 776, 291 P.2d 469.
[Headnote 3]
The appellant relies heavily upon United States v. Scott, D.C., 149 F.Supp. 837, where the
officers, unsolicited, went to the defendant's apartment to question him about a robbery. They
were admitted to the apartment building by the landlord. The door to the defendant's
apartment was ajar. The officers entered. The defendant was not present. They waited. How
different from the case at bar! Here, the police were present in the apartment by request. They
did not initiate entry, and the consequent search and seizurethe owner did. They did no
more than to respond to the owner's request for the investigation of circumstances explaining
the presence of a corpse. While in the apartment they were justified in making that kind of a
search reasonably connected with the purpose of their visitthe investigation of a homicide.
Indeed, we perceive no valid reason for a distinction between the sweep or scope of a search
and seizure made with a warrant, and one made in its absence.
3
In either instance the
constitutional issue is whether the search and seizure is unreasonable. Having observed the
corpse and other items of evidence which were in plain sight and properly seized, People v.
Roberts, supra, we do not deem it unreasonable for the officers to have opened a kitchen
drawer and a second closet in search for implements used or additional evidences of
crime. We are not here concerned with condoning the "lawless activities of law
enforcement officers," People v. Cahan, 44 Cal.2d 434, 445, 2S2 P.2d 905, 911-912, 50
A.L.R.2d 513, but, instead, with an evaluation of their response to the apartment owner's
request for an investigation.
____________________

2
NRS 179.101 provided: A search warrant is an order in writing, in the name of the State of Nevada, signed
by a magistrate, directed to a peace officer, commanding him to search for personal property, or implements
used, or evidences of crime, and bring it before the magistrate.
of evidence which were in plain sight and properly seized, People v. Roberts, supra, we do
not deem it unreasonable for the officers to have opened a kitchen drawer and a second closet
in search for implements used or additional evidences of crime. We are not here concerned
with condoning the lawless activities of law enforcement officers, People v. Cahan, 44
Cal.2d 434, 445, 282 P.2d 905, 911-912, 50 A.L.R.2d 513, but, instead, with an evaluation of
their response to the apartment owner's request for an investigation. We believe their
response reasonable and in the line of duty. Furthermore, the circumstances reasonably
demanded that the officers take possession of the apartment and seal it to forbid tampering,
until their work was completed.
4
The fact that parts of three days were required to
accomplish their task is unimportant under these circumstances. Cf. Martin v. State, 217
Miss. 506, 64 So.2d 629, cited by appellant, where a return visit to search, without a warrant,
was found unreasonable under totally different conditions than presented here.
[Headnote 4]
We conclude that neither an unreasonable search nor an unreasonable seizure, in the
constitutional sense, occurs when police officers, upon the landlord's request and without a
search warrant, enter a deceased tenant's apartment, observe plain sight evidence of a killing,
take control of the premises, and look into closets and drawers for the implements and
evidences of the crime.
2. The foundation for Exhibits X, Y and M.
Exhibits X and Y are vials which purport to contain samples of Eisentrager's blood. He
had given written permission that his blood could be typed. In the presence of a police officer
(who testified), a technician at the hospital, by hypodermic needle, extracted blood from
Eisentrager's arm and placed the blood thus extracted in two vials. The technician went alone
to an adjoining room.
____________________

4
Cf. NRS 259.050 directing the coroner to go to the place where the body is and make an investigation,
where death has been occasioned by unnatural means.
Within a very short time (two or several minutes) he returned the vials containing blood to
the officer. The samples were later sent to the FBI laboratory, typed, and introduced in
evidence through the FBI agent who had made the analysis. The medical technician who
withdrew the blood did not testify. It is claimed that an adequate foundation for the
introduction of the vials was not established because there is not positive proof that the blood
samples which the technician took alone to the adjoining room were the same as those
returned a few minutes later to the officer.
[Headnotes 5, 6]
The burden is upon the party relying upon expert testimony to prove the identity of the
object upon which such testimony is based. However, the practicalities of proof do not
require such party to negative all possibility of substitution or tampering. He need only to
establish that it is reasonably certain that substitution, alteration, or tampering did not occur.
In the present case there is absolutely no indication that the medical technician, who had sole
possession of the vials for approximately two minutes, substituted, altered, changed or
tampered with their contents, nor is there the remotest suggestion that he may have been
interested in doing so. In such circumstances it was proper for the trial judge to admit the
evidence and let what doubt, if any, regarding its identity, go to its weight. People v. Riser, 47
Cal.2d 566, 305 P.2d 1; cases collected Annot., 21 A.L.R.2d 1216.
[Headnote 7]
Exhibit M is the portion of a pillow case which was supposed to have been around the
decedent's neck. Here again it is claimed that a foundation for its admission into evidence was
not established because it was never positively shown that Exhibit M was the object taken
from the decedent's neck. We believe that an adequate foundation appears in the record. The
mortician in the presence of a police officer removed the outer and undergarments from the
decedent and also something that was around her neck."
that was around her neck. The something was described to be a pillow case, or a towel,
something of that nature. In any event, it was given to a police officer who marked it with
his initials, and later sent it to the FBI laboratory for analysis. It was offered into evidence
through the FBI agent who had analyzed it, and who testified that stains of human blood, type
A, were on it. The deceased had the same blood type. Furthermore, Exhibit L, which was
taken from the kitchen drawer of the apartment, was received in evidence, and the FBI agent
gave his opinion, based upon a microscopic comparison, that the two exhibits, M and L, were
originally adjoining portions of the same pillow case. It is evident that a proper foundation
was established.
[Headnotes 8, 9]
3. The use of reported testimony was proper.
It is next urged that the foundation requirement of NRS 178.230,
5
providing for the use of
reported testimony in a subsequent trial of the same cause, was not met. The trial court
permitted the prosecution to read the testimony of a witness given during the first trial of this
defendant. It is claimed that the witness was not proven dead, nor beyond the jurisdiction of
the court. We find no merit to this contention. The record shows that two police officers had
spent a considerable amount of time, 16 to 24 man-hours, attempting to locate the witness
in Clark County. In addition, they corresponded with a district attorney's office in Arizona, in
which state the witness was supposed to have a permanent address, and were advised by an
Arizona sheriff of an address in Mexico for the witness. A letter was mailed to the Mexican
address, and returned. Also an investigator from the district attorney's office spent four
days attempting to locate the witness.
____________________

5
NRS 178.230 provides: Whenever, in any court of record, the testimony of any witness in any criminal
case shall be stenographically reported by an official court stenographer, and thereafter such witness shall die, or
be beyond the jurisdiction of the court in which the cause is pending, either party to the record may read in
evidence the testimony of the witness, which duly certified by the stenographer to be correct, or otherwise so
proved, in any subsequent trial of or proceeding had in the same cause, subject only to the same objection that
might be made if the witness were upon the stand and testifying in open court.
an investigator from the district attorney's office spent four days attempting to locate the
witness. It is frequently impossible to offer certain proof that a witness is either dead or
beyond the jurisdiction of the court. Reasonable diligence must be exercised to locate him.
Cf. People v. Raffington, 98 Cal.App.2d 455, 220 P.2d 967. Though the California statute
speaks in terms of due diligence, while the Nevada statute does not, nonetheless we deem
reasonable diligence or due diligence to be the foundation standard. In our view, the
record here reflects reasonable diligence, and it was not error to permit the reading of the
absent witness' prior reported testimony.
[Headnote 10]
4. Re the delivery of Exhibit M to the jury during its deliberations.
The bailiff, without court authorization or counsel's consent, responded to the jury's
request that it be permitted to have Exhibit M (the half of a pillow case found around
decedent's neck) in the jury room. The bailiff's conduct is cited as reversible error. NRS
175.390 reads: Upon retiring for deliberation, the jury may take with them:
1. All papers, except depositions which shall have been received as evidence in the case,
or copies of such public records or private documents given in evidence as ought not, in the
opinion of the court, to be taken from the person having them in possession.
2. The written instructions given, and notes of the testimony or other proceedings on the
trial, taken by themselves or any of them, but none taken by any other person.
We do not decide whether counsel's consent, court order, singly or together, had such been
present, could permit the jury to take an exhibit to the jury room. Without question, error
occurred in this case when the bailiff acted on his own volition. Yet we do not consider the
error to be prejudicial. NRS 169.110. Exhibit M was properly admitted into evidence. It is
permissible for the jury to observe and examine, during trial, exhibits which are properly in
evidence. Why a similar observation and examination should be deemed prejudicial just
because accomplished in the jury room, escapes us.
observation and examination should be deemed prejudicial just because accomplished in the
jury room, escapes us. In State v. Williams, 50 Nev. 271, 257 P. 619, we found no prejudicial
error in allowing the jury to take photographs which were properly received in evidence. We
reach the same conclusion here.
[Headnote 11]
5. The new trial motion was properly denied.
Before judgment and imposition of sentence, Eisentrager moved for a new trial. He
claimed, inter alia, that a fatal variance regarding the cause of death existed between the
charge of the information and the proof adduced. The information charged death by striking
the said Ardis Mayo on and about the face, body and head, with his hands, fist and a rolling
pin, being approximately ten inches in length and two inches in circumference. [radius] The
proof (according to appellant) established death by strangulation. Many authorities are cited.
We need not refer to them here. It is sufficient to note that the record contains ample evidence
from which the jury could believe the cause of death to be as charged in the information. The
expert opinion offered as to cause was:
I believe that this party died from two causes. I believe that the victim was, or the subject
was helpless due to multiple injuries and that the actual cause of death was due to
strangulation.
[Headnote 12]
The jury was at liberty to accept or reject all or a part of such opinion. There was much
other evidence to prove a beating by use of a rolling pin or similar object. The rolling pin was
found to have the decedent's hair on it. Indeed, the doctor's opinion as to the cause of death
could reasonably be construed to embrace two causes, beating and strangulation. We find no
variance, and hold this assigned error to be without validity.
Affirmed.
____________
79 Nev. 49, 49 (1963) City of Reno v. Matley
THE CITY OF RENO, NEVADA, Appellant, v. WAYNE C. MATLEY and ALOISE
MATLEY, His Wife, Et Al., Respondents.
No. 4541
February 4, 1963 378 P.2d 256
Appeal from judgment of the Second Judicial District Court, Washoe County; Taylor H.
Wines, Judge, presiding.
Suit to restrain city from constructing road on easement granted to city other than in
manner required by agreement and for declaratory relief. The trial court granted requested
relief, and the city appealed. The Supreme Court, Badt, C. J., held that city's covenant to
construct and maintain 80-foot street on easement granted by property owners was covenant
running with land, benefits of which could be enforced by property owners' successors in
interest, who took property by conveyance which included appurtenances.
Affirmed.
Roy Lee Torvinen, City Attorney, of Reno, for Appellant.
Sinai and Sinai, of Reno, for Respondents.
1. Covenants.
City's covenant to construct and maintain 80-foot street on easement granted by property owners was
covenant running with land, benefits of which could be enforced by property owners' successors in interest,
notwithstanding fact that agreement containing covenant was executed in April, 1956, whereas deed
conveying easement was not executed until June, 1961.
2. Covenants.
City's covenant to construct and maintain 80-foot street on easement granted by property owners was
covenant running with land, benefits of which could be enforced by property owners' successors in interest,
who took property by conveyance which included appurtenances.
3. Municipal Corporations.
City, which covenanted to construct and maintain 80-foot street on easement granted by property owners,
could not construct such street so as to obstruct abutting owner's right of access thereto.
4. Injunction.
Mandatory injunction was proper remedy to restrain city from constructing road on easement granted to
city other than in manner required by covenant running with land, even though substantial part of street had
been constructed prior to commencement of suit.
5. Covenants.
City was required, under covenant by which it agreed to construct street 80 feet in width, to construct
street with 80-foot surface and not merely 40-foot street flanked by two 20-foot drainage ditches.
OPINION
By the Court, Badt, C. J.:
Some thirteen members of the Matley family and CWF Corporation, Shoshone Coca Cola
Bottling Co., and Joseph J. Morrey, as successors in interest to three respective parcels of
property conveyed to them by the Matleys and abutting the easement in issue herein, sought
declaratory relief and an injunction to restrain the City of Reno from constructing a road upon
the easement granted to the City other than as required by an agreement entered into between
the Matleys and the City. The court granted the relief asked for, and the City has appealed.
Appellant's opening brief assigns the following errors:
1. That the court erred in holding that the City's covenant to construct and maintain a
street on the easement granted by the Matleys was a covenant running with the land.
2. That, such being the case, it was error to hold that the successors in interest of the
Matleys are real parties in interest.
3. Error in holding that the covenant of the appellant to construct and maintain a street
section eighty feet wide along the easements described in said agreement of April 24, 1956,
means the construction and maintaining of a street surface 80 feet in width.
4. Error in holding that it is the duty of the appellant under the provisions of said
agreement of April 24, 1956 to remove or eliminate any barrier or hazard which would
prevent the use of any portion of said eighty foot easement as a street.
5. Error in holding that the roadbed heretofore constructed by the appellant does not
discharge appellant's obligation to construct and maintain a street section 80 feet wide.
6. Error in holding that appellant is required to eliminate the barrier created by the
drainage ditches located on the eighty foot easement and to construct a level street surface to
the property line on each side of the street easement.
7. Error in holding that the appellant had not as of the date of the submission of the
action to the trial court surfaced any portion of said street section eighty feet in width, and
that the trial court could not determine whether the portion of said street section 80 feet in
width which the defendant is required to surface is of sufficient width to accommodate the
traffic using said street.
8. That it was error to grant a summary judgment where there were genuine issues of fact
to be tried.
9. That it was error for the court to issue a mandatory injunction.
A pretrial conference was held and an order made pursuant to stipulation, which we have
condensed as follows:
On April 24, 1956, the Matleys entered into a written contract with the City whereunder
they agreed to convey to the City some 212 acres of land and an easement for the purpose of
constructing a street 80 feet in width extending to Vassar Street from Matley Lane to the
terminal area of the Reno Municipal Airport, containing 1.58 acres, subject to the conditions
of paragraph 2(h) of the agreement; also an easement for the purpose of constructing an
access street 80 feet in width from the terminal area of the Reno Municipal Airport to Mill
Street, containing 4.176 acres; also an easement for the purpose of constructing an access
street 60 feet in width from Matley Lane to the lands described, containing 1.256 acres; also
a permanent underground easement for the purpose of constructing and maintaining a sewer
line or lines as described.
In consideration of the premises the City agreed to pay the Matleys something over
$400,000, constituting severance damages to the remaining adjacent lands of the Matleys,
to construct certain fences along the easements granted, to construct and maintain a
street section 100 feet wide as described {the "Plumb Lane Extension"), and further, of
primary contention in this case {we borrow the phrase from appellant's brief): "to
construct and maintain at its own cost and expense a street section S0 feet wide,
surfaced to sufficient width in accordance with good engineering practice to
accommodate traffic using said street, on the easement hereinabove described in
Paragraph l{c) hereof * * *," with an identical covenant with reference to the easement
described in paragraph 1 {d) of the agreement.
severance damages to the remaining adjacent lands of the Matleys, to construct certain fences
along the easements granted, to construct and maintain a street section 100 feet wide as
described (the Plumb Lane Extension), and further, of primary contention in this case (we
borrow the phrase from appellant's brief): to construct and maintain at its own cost and
expense a street section 80 feet wide, surfaced to sufficient width in accordance with good
engineering practice to accommodate traffic using said street, on the easement hereinabove
described in Paragraph l(c) hereof * * *, with an identical covenant with reference to the
easement described in paragraph 1 (d) of the agreement.
The City further agreed that if it failed to construct the streets thus referred to or ceased
thereafter to maintain the easements for public purposes, the easements would terminate and
the land revert to the Matleys and their successors in interest. The City further agreed to
construct and maintain a sewer line on the underground easement granted, with certain
provisions for pumping if required. Sundry other covenants were agreed upon, which,
however, are not pertinent to the issues herein.
Subsequently to the execution of said agreement in 1956, plaintiffs CWF Corporation,
Shoshone Coca Cola Bottling Co., and (through mesne conveyance) plaintiff Morrey acquired
by purchase from the Matleys their respective parcels of land fronting on the conveyance to
the City. The city engineer of Reno submitted plans and specifications for the construction of
the streets, which were approved by the City, and thereafter the City entered into a contract
for the construction of said streets with Isbell Construction Company, which entered upon
such construction, graded the streets according to the plans and specifications, built up and
compacted a roadbed for streets 40 feet in width, hauled in, dumped and leveled gravel on top
of said roadbed, and has, for the purpose of draining aforesaid roadbed and in accordance
with the plans and specifications, dug on each side of the roadbed on both streets a drainage
ditch which has been graded and at all points dug to a depth sufficient to drain percolating
and other waters away from said roadbed.
said roadbed. The high level of percolating and other waters make drainage of the roadbed
necessary and to do so efficiently the City planned and the construction company dug the
ditch along and within the limits of the 80-foot right of way. There is on each side of the
roadbed a 20-foot strip from the edge of the road to the line of the right of way, the ditch
being next to the right of way line with its center side sloping toward the shoulder and edge of
the roadbed. The topography of plaintiff's abutting lands is uneven, though generally sloping
from east to west on the north portion and from west to east on the south portion; the drainage
ditch is in some instances a barrier and at almost every other point a hazard to access of the
abutting lands of the plaintiffs. (At the oral argument it was conceded that in some places the
ditch was six feet deep.) At almost every point along the drainage ditches ordinary access to
the plaintiffs' abutting lands would require that a conduit, capable of receiving as well as
carrying waters, be laid and the ditch filled. This problem will be aggravated when the road is
hard-surfaced, since that will at certain points raise the level of the road as much as a foot in
some areas. In some parts thereof the drainage ditch carries percolating and surface waters
only. At others, pre-existing ditches which carry drainage waters during certain seasons
intersect or have been rerouted along the lines of the drainage ditches constructed along the
sides of the right of way; that certain lower users have vested rights in the water in said
ditches if water is available to supply said rights. The lands abutting these streets and owned
by the plaintiffs have been zoned as an industrial area, in which the lots are at least one acre
in area. The plaintiffs CWF Corporation, Shoshone, and Morrey have constructed, or are
constructing, public buildings on their parcels.
The original pretrial order contained certain contentions of fact, but was amended to
eliminate the recital of such contentions.
The issues of law as recited in the pretrial order were, on the part of plaintiffs, (1) that the
defendant City has a contractual as well as a legal obligation to provide access to the lands
abutting the streets; {2) that the construction of ditches by the defendant City on the
easements granted to it by the plaintiffs Matley for the purpose of constructing streets is
an illegal and improper use of said easements.
access to the lands abutting the streets; (2) that the construction of ditches by the defendant
City on the easements granted to it by the plaintiffs Matley for the purpose of constructing
streets is an illegal and improper use of said easements. The defendant's contention of law is
that the City has no obligation to facilitate access from the streets being constructed by it to
the abutting property. In its briefs appellant makes the following contentions:
[Headnote 1]
It contends, first, that as the agreement was made April 24, 1956, and the deed to the City
was executed in June, 1961, this prevents the covenant concerning the manner of constructing
the street from being a covenant running with the land, and cites Wheeler v. Schad, 7 Nev.
204. That case is not in point. The covenant of the grantee there (the covenantor) was sought
to be held binding on such covenantor's successor. The covenant was to pay half the costs of
repairing a dam. In addition, the covenant was made six days after the deed to such
covenantor, and was not contemplated by the parties when the deed was executed.
1
Besides
not being in point, language used by the court is favorable to the respondents herein.
Appellant has cited four other cases which are clearly distinguishable or favorable to the
respondents.
2

For over a hundred years text writers and courts have discussed the distinction between
benefits and burdens arising out of the covenants, resulting generally in the liberal
enforcement of the benefits of a covenant as running with the land as contrasted with the
enforcement of the burdens.
____________________

1
Appellant's reliance on this holding to the effect that the agreement must be at the time of or before the deed
is in direct opposition to its contention (citing II American Law of Property 371) that: The privity of estate
necessary to create a covenant running with the land may be found in the conveyance of an easement, but the
covenant must be made at the time of the conveyance or subsequent to the conveyance, not before.

2
Berryman v. Hotel Savoy Co., 160 Cal.559, 117 P. 677, 37 L.R.A., N.S., 5; Lingle Water Users' Ass'n v.
Occidental Bldg. & Ass'n, 43 Wyo. 41, 297 P.385; Pelser v. Gingold, 214 Minn. 281, 8 N.W.2d 36; Everett
Factories & Terminal Corp. v. Oldetyme D. Corp., 300 Mass. 499, 15 N.E.2d 829, 118 A.L.R. 965.
covenant as running with the land as contrasted with the enforcement of the burdens. The
distinction and the difference, however, are clear. To charge the successors of the grantee
with performance of the grantee's covenants (Wheeler v. Schad, supra) is an entirely different
thing from permitting the successor of the grantor (the covenantee) from enforcing the
benefits of the covenants. The latter is the case here. Appellant contests this conclusion and
insists that the deed to the City by the Matleys was a deed poll, and created simply a personal
convenant. This follows, argues appellant, because the deed was executed some years
following the contract, and that under the authorities the contract became merged into the
deed and that the execution and acceptance of the deed constituted the fulfillment of the
contract. Appellant relies upon the general rule which is thus stated in Blake-McFall Co. v.
Wilson, 98 Or. 626, 193 P. 902, 907, 14 A.L.R. 1275: Stated broadly, the general rule is that
a contract to convey land is merged in a deed executed in performance of such contract, and
the deed operates as a satisfaction and discharge of the executory contract. 2 Devlin, Real
Estate (3d ed.) 850a; 27 R.C.L. 529. However, the distinction of such cases from the
present case appears clearly in Mueller v. Bankers' Trust Co. of Muskegon, 262 Mich. 53,
247 N.W. 103, where the court said: As to plaintiff's claim of merger, it may be conceded
that a deed made in full execution of a contract for the sale of land is presumed to merge the
provisions of a preceding contract pursuant to which it is made, including all prior
negotiations and agreements leading up to execution of the deed, with the long-recognized
exception that:
Where, however, the deed constitutes only a part performance of the preceding contract,
other distinct and unperformed provisions of the contract are not merged in it. And where a
contract of sale provides for the performance of acts other than the conveyance, it remains in
force as to such acts, until full performance.' 18 Corpus Juris, 231. [page 271] With
reference to the covenant of the grantee to build a bridge affecting the grantor's land in that
case, the court said: "The covenant was collateral to the contract for the deed * * *
independent of conveyance of title * * *.
the grantor's land in that case, the court said: The covenant was collateral to the contract for
the deed * * * independent of conveyance of title * * *. The deed did not extinguish the
covenant to build the bridge.
The covenant involved here, to construct a street upon the conveyed easement, is a classic
example of a covenant running with the land. Appellant's opening brief concedes that the
construction of the streets and the installation of the sewers were of great benefit to the
Matleys.
Most objections to upholding covenants as running with the land stem from the seeming
incongruity that permits a man, by making a promise, to bind another who subsequently
succeeds to land held by the first. Such covenants, it was thought, would seem to run against
the public policy favoring the free alienability of land. This difficulty, however, would seem
to be more imagined than real when we are dealing with the benefits, and not the burdens, of
such covenants. In Clark, Covenants and Interests Running with Land, 2d ed. (1947), 97,
Judge Clark put it this way: * * * if the promisee's legal relations in respect to that land are
increasedhis legal interest as owner rendered more valuable by the promisethe benefit of
the covenant touches or concerns that land. This of course is the case here.
In the annotation found at 68 A.L.R.2d 1022 the annotator at page 1024 justifiably draws
the following conclusions: Once the intention of the parties is determined, little theoretical
difficulty is occasioned by the running of the benefit of covenants, so as to permit their
enforcement by the successors of the covenantee against the original covenantor, especially
since it seems clear that the same result can ordinarily be reached by an assignment of the
covenantee's rights or under the contract doctrine of third-party beneficiaries. In addition, it
appears that permitting benefits to run is not likely to have any adverse effect upon the
alienability of land. Accordingly, it is generally recognized that benefits may be found to run
more readily than burdens."
benefits may be found to run more readily than burdens. We have no hesitation in adopting
this conclusion with reference to the running of the benefit of the covenants. As the present
case clearly involves the question of the running of the benefits, it would be idle speculation
as to what restrictions this court might be inclined to put where the case involves the running
of the burden. In Restatement, Property 547 and 548, the rule is stated thus:
547. Privity between Beneficiary and Successor. The benefit of a promise respecting the
use of land of the beneficiary of the promise can run with the land only to one who succeeds
to some interest of the beneficiary in the land respecting the use of which the promise was
made.
* * * * *

548. Privity between Promisor and Promisee. It is not essential to the running of the
benefit of a promise respecting the use of land of the promisee or other person entitled to the
benefit of the promise that there be any privity between the promisor and the promisee other
than that arising out of the promise.
Appellant says that the language used in the Restatement only leaves the whole subject in
a terrible mess. Certainly he is not alone in this criticism.
In Sims on Real Covenants (1901) 135, the author says: The general notion has been long
indorsed that the successors of covenantees can always have the benefit of covenants, and that
they can sue in their own name at law. Exactly how this happened to be so generally agreed
upon, it is hard to tell, as every other question of covenants has become so entangled. The
probable explanation is that in the running of benefits the spirit of the original use of the
covenant was so apparent that its doubt never seemed to appeal to the judges.
But see article of Hon. Charles E. Clark, United States Circuit Judge, 2nd Cir., in 30
Cornell Law Quarterly 378, 386 (1944-1945): That there is so little bona fide support for
the doctrine may come as a surprise to those who have not undertaken the drudgery of
examining the cases.
bona fide support for the doctrine may come as a surprise to those who have not undertaken
the drudgery of examining the cases. This much must be said, that there has appeared
recurrently, particularly in older texts, some doctrine known as privity of estate,' though it
has generally remained nebulous and undefined. But when it has come into contact with the
actual cases, it has yielded to the practical realities which show such covenants to be
generally useful and desirable in such simple and reasonable activities as adjustment of water
and irrigation, party-wall, and fencing rights, and duties of repair and the like. Hence
practically all the cases uphold running; it is the rare exception which does not. The real
explanation is that pseudo-history has been allowed to masquerade as real history, to only the
text writers' joy and to the apparent confusion of many, but the actual confusion of few,
courts. A dull and reactionary judge in England tossed off the idea of interparty privity in
1789 in a case where it was not in point, without the citation of an authority or any
discussion; and the idea was picked up in the editing of an important series of cases and given
some early vogue. See also 5 Powell, Real Property (1962), 675, et seq.
[Headnote 2]
Appellant's next contention is that CWF Corporation, Shoshone, and Morrey were not real
parties in interest in the litigation, in other words, that they had no right to sue. This, because
there was no privity between them and the City of Reno. For the most part this phase has
already been discussed in connection with the running of the covenant. It remains but to be
noted that the conveyance to the successors of the Matleys, by reason of its inclusion of the
appurtenances, also included the right to enforce the City's covenants. State v. Department of
Highways, 200 La. 409, 8 So.2d 71; Schwab v. Whitmore Rauber & Vicinus Co., 245
App.Div. 174, 281 N.Y.S. 30. It is stated in II American Law of Property, p. 372: Where the
privity rests upon the existence of an easement, it is of a continuing type so that it continues
to exist between subsequent owners of the dominant and servient lands for as long as the
easement continues."
owners of the dominant and servient lands for as long as the easement continues. Here we
are not concerned with a liability of a successor of the dominant estate. The City of Reno, as
the owner of the dominant estate, covenanted that it would exercise its dominant easement in
a particular manner for the benefit of the servient lands, so long as the dominant owner has
exercised or shall exercise its dominant easementits covenant to maintain the street for
which the easement was granted, in the manner prescribed by its covenants.
We hold that the benefit of the covenant of the City of Reno to construct and maintain the
street in question runs with the land and that the successors in interest of the original
covenantee have standing to enforce the covenant and are real parties in interest.
The views as above stated are reinforced by State v. Department of Highways, supra, in
which it was said: In 25 Am.Jur., 154, p. 448, decisions by the Supreme Court of the
United States and by the courts of last resort of thirty of the states are cited in support of this
pronouncement: The right of access to and from a public highway is one of the incidents of
the ownership or occupancy of land abutting thereon. Such right is appurtenant to the land,
and exists when the fee title to the way is in the public as well as when it is in private
ownership. It is a property right of which the owner cannot be deprived without just
compensation.' It further cited with approval Anzalone v. Metropolitan District Commission,
257 Mass. 32, 153 N.E. 325, 47 A.L.R. 897, as follows: Access to a public way is one of the
incidents of ownership of land bounding thereon, and this right is appurtenant to the land and
exists when the fee of the way is in the municipality as well as when it is in private
ownership.
In City Motel, Inc. v. State, 75 Nev. 137, 336 P.2d 375, 337 P.2d 273, an action by the
state to quiet title to certain lands formerly embraced in a right of way conveyed by ancient
owners to the Virginia & Truckee Railroad Company in which the granting clauses conveyed
to the grantee and its assigns "all that certain right of way" over the lands described and
"all that certain piece of land hereinafter described for the purpose of said right of way,"
we held with reference to the rights of the successors of the original grantors as follows:
"Therefore, if there was nothing in the deeds from any of their predecessors in interest
excepting the legal title to that part of the right of way abutting their land which was
dominant thereto, then as present owners of the dominant fee relieved of the burden of
the easement, their fee encompasses not only the fee of the particular land described in
the instrument under which they base their title but also the fee to the center of the right
of way bordering thereon."
the grantee and its assigns all that certain right of way over the lands described and all that
certain piece of land hereinafter described for the purpose of said right of way, we held with
reference to the rights of the successors of the original grantors as follows: Therefore, if
there was nothing in the deeds from any of their predecessors in interest excepting the legal
title to that part of the right of way abutting their land which was dominant thereto, then as
present owners of the dominant fee relieved of the burden of the easement, their fee
encompasses not only the fee of the particular land described in the instrument under which
they base their title but also the fee to the center of the right of way bordering thereon. (336
P.2d at p. 379.) This applies, a fortiori, in the instant case where the successors to the Matleys
not only received their respective deeds with the appurtenances but with right of reversion to
them as such successors, on abandonment by the City of Reno of what was theretofore the
dominant estate.
[Headnote 3]
Appellant has much to say to the effect that the City is not required to provide access to the
abutting property. For the sake of argument we may accept this statement,
3
but here we do
not have a mere absence of providing access, but a particular kind of construction, not
included in the grant, that actually prevents access. This is the situation that the court's
judgment undertook to cure.
[Headnote 4]
Appellant assigns error because of the mandatory features of the injunction. In support of
this assignment appellant cites 28 Am.Jur., Injunctions 17, to the effect that courts do not
favor mandatory injunctions. The article referred to goes on to show, however, that early
restrictions on mandatory injunctions have given way to more liberal construction of the
court's power, such as compelling the restoration to the moving party of that which was
wrongfully taken from him or compelling the undoing of acts that had been illegally done.
____________________

3
But cf. State ex rel. Dept. of Highways v. Olsen, 76 Nev. 176, 351 P.2d 186, citing with approval People v.
Schultz Co., 123 Cal. App.2d 925, 268 P.2d 117.
court's power, such as compelling the restoration to the moving party of that which was
wrongfully taken from him or compelling the undoing of acts that had been illegally done.
And in 43 C.J.S. 410, Injunctions 5, and notes, it is said: * * * and it is settled beyond
question that equity has jurisdiction in a proper case to compel affirmative performance of an
act as well as to restrain it, and that it is its duty to do so, especially where it is the only
remedy which will meet the requirements of the case.
A mandatory injunction may be granted although the act causing the injury has been
completed before the suit is brought and complainant may by this means be put in statu quo, *
* *. Many supporting cases from the United States Supreme Court and state jurisdictions are
cited in support of this rule. The assignment is without merit.
[Headnote 5]
The remainder of the specifications of error above listed as specifications Nos. 3 to 9 may
be grouped. They deal with the court's construction of the agreement to build the 80-foot
street, the city's duty (under such construction) to eliminate the barrier to access caused by its
method of construction, the holding that the roadbed as constructed did not discharge the
appellant's obligation, and the holding that a 40-foot road flanked by two 20-foot drain
ditches was not a compliance with the contract.
In the oral argument it developed that these were the real matters attacked by the appeal.
They may be even more closely grouped. The complaint is that the court misconstrued the
contract and, growing out of such misconstruction, entered erroneous orders in its judgment.
We turn, then, to the trial court's judgment. After holding that the covenant of the City
benefited the lands abutting thereon and was a covenant running with the land, and that
plaintiffs CWF Corporation, Shoshone, and Morrey, as owners of the abutting land, were real
parties in interest, the court turned to a construction of the contract.
construction of the contract. It held that the City's covenant to construct and maintain a street
80 feet wide along the easements conveyed to it means the construction and maintaining a
street surface 80 feet in width, extending the length of the easements; that it was the duty of
the City under said agreement to remove or eliminate any barrier or hazard which would
prevent the use of any portion of said 80-foot easement as a street. It adjudged that the
roadbed as constructed did not discharge the City's obligation to construct and maintain a
street section 80 feet wide and required the City to eliminate the barrier created by the drain
ditches and to construct a level street surface to the property line on each side of the street
easement.
We are in entire accord with the court's construction of the agreement and with its
judgment in accordance with such construction. The easement granted was for a street and
not for drain ditches.
Appellant fears that such judgment requires the entire hard surfacing of the 80-foot street
from property line to property line. This is not so. As to the surfacing of a part of the street,
the court retained jurisdiction and declined to make a ruling as to what portion should be
surfaced in order to accommodate traffic using said street. No part had as yet been surfaced,
nor could the court determine the point at the time of entering the judgment. The type of
surface was not involved in the issue submitted or determined. The sufficiency of width of the
surfaced portion was not included. A definition of good engineering practices was not
included. No evidence was taken, and none was required on any of such items, as to which
the court properly retained jurisdiction for future determination. NRCP 56(d). Neither the trial
court's judgment nor our affirmance thereof can be said to be a construction of these clauses
of the contract.
It is further clear that the danger feared by appellant is not a real one. The City contended
that the 80-foot street from property line to property line includes not only the street for
purposes of vehicular traffic but also sidewalks, a parking lane, curbs and gutters.
includes not only the street for purposes of vehicular traffic but also sidewalks, a parking
lane, curbs and gutters. While we may be inclined to accept this statement, this is not our
problem. Our problem is rather to determine what the City may not do in compliance with its
covenant. We hold that it cannot so construct the street as to prevent access to the abutting
property. The construction and grading of an 80-foot street is clearly contemplated by the
contractnot a 40-foot street flanked by two 20-foot ditches of such depth as to prevent
access to the abutting lands of the plaintiffs. Nowhere can we reconcile the 20-foot ditches
with the grant of the easement for the express purpose of constructing a public street.
4

The subject of the right of access and remedies against interference is stated in 10
McQuillin, Municipal Corporations (3d ed. 1950), sec. 30.63(830.62) as follows:
The most important right of the abutter incident to his ownership of property abutting on
a street or alley is his right of access, i.e., his right of ingress and egress. The easement (as it
is usually called) of access is not the mere right of going out from one's home or place of
business upon the street and returning therefrom to his own land, but includes a certain
convenience in the use of his property with respect to the rest of the world, such as the
opportunity for a man's family or guests to come to his place of business without
unreasonable hindrance or interruption. It includes not merely the right of the abutting owner
to go into and come out of his premises but also the right to have the premises accessible to
patrons, clients, and customers.
In most jurisdictions this right of access is held to be a proprietary right, an easement in
the street attached to the estate or ownership of property abutting on a street or alley, and
property which cannot be appropriated to the use of the public without compensation.
Therefore, a city cannot deprive property holders of the right of access, nor may the right
be unreasonably impaired.
____________________

4
Though eliminated from this case by stipulation, the record shows that one of plaintiffs' cows drowned in
one of the ditches.
holders of the right of access, nor may the right be unreasonably impaired. And this applies to
the obstruction of an alley affording access to abutter's property, as well as to the main street
proper. This right of access passes with a conveyance of the land. The right protected by the
Constitution because it pertains to the property of the abutting owner is the right of access to
the street or free passage between his property and the street so that he may go upon it to
exercise his public right of travel and when he has done so return to his own grounds.' If the
right of access is materially interfered with it is a special injury which entitles the abutter to
sue for damages or to enjoin or abate the obstruction.
5
Id. pp. 669-671. To like effect is the
holding of this court in Teacher Building Co. v. Las Vegas, 68 Nev. 307, 232 P.2d 119, in
which this court, reversing the district court, held in favor of the plaintiff's demand for an
injunction to restrain the city commissioners from vacating 30 feet of a 60-foot street, citing
with approval a number of authorities supporting the right of an abutting property owner to
the use of the whole street for ingress and egress, light, view, and air.
Appellant's contention that the court erroneously construed the agreement has already been
dealt with. Appellant asserts that the court has made a new contract for the parties, but we do
not so construe the judgment. On the other hand, appellant complains because the court did
not spell out just what it meant when holding that the contract required an 80-foot street from
property line to property linehow much for the street traffic, how much for the sidewalk,
the parking, the curb and gutters, etc. This indeed would have been making a new contract.
The court properly restricted its judgment to the issues before it, and, by reserving
jurisdiction, made it possible to take care of other difficulties as they might arise.
____________________

5
In addition to the authorities cited in support, reference may be made to chap. 14, secs. 14-40 of the Reno
city ordinances defining a street as follows: a public thoroughfare of width 30 feet or more which affords a
primary means of access to abutting property.
Appellant maintains that material issues of fact were involved, so that summary judgment
was not available. We are satisfied that the pretrial order is an answer to such contention. The
only matters of fact left for determination were such as were left for further consideration, for
which purpose jurisdiction was retained. NRCP 56(d).
The judgment is hereby affirmed with costs.
McNamee and Thompson, JJ., concur.
____________
79 Nev. 65, 65 (1963) Cox v. Heers, Inc.
WILMA J. COX and GEORGE W. COX, Appellants, v. HEERS, INC., a Corporation; ACE
PLUMBING & HEATING CO., a Corporation; E. B. MARSHALL, Doing Business as
MARSHALL APPLIANCE STORE; TWIN LAKES VILLAGE, INC., A Corporation;
GENERAL ELECTRIC COMPANY, a corporation; GENERAL ELECTRIC
SUPPLY CO., Respondents.
No. 4461
February 5, 1963 378 P.2d 533
Appeal from the Eighth Judicial District Court, Clark County; David Zenoff, Judge.
Action for injuries suffered from an alleged explosion of a residential water heater. The
lower court entered judgment denying recovery and the plaintiffs appealed. The Supreme
Court, McNamee, J., held that evidence supported the denial of recovery either on ground of
negligence in the manufacture, assembly, installation or service of the heater or on the ground
of breach of warranty in view of the complete absence of physical evidence of any explosion
or bruises, burns, or other external injuries which would have resulted therefrom and in view
of the lack of any other evidence establishing that anything at all had actually happened to the
plaintiff claiming injuries from an alleged explosion.
Affirmed.
Foley Brothers, of Las Vegas, for Appellants.
Morse & Graves, of Las Vegas, for Respondents Heers, Inc., and Twin Lakes Village, Inc.
Clarence Sundean, of Las Vegas, for Respondent Ace Plumbing & Heating Co.
Jones, Wiener & Jones, of Las Vegas, for Respondent E. B. Marshall.
V. Gray Gubler, of Las Vegas, for Respondents General Electric Company and General
Electric Supply Co.
Negligence; Sales.
Evidence supported denial of recovery either on ground of negligence in the manufacture, assembly,
installation or service of residential water heater or on ground of breach of warranty for injuries suffered in
alleged explosion of water heater in view of conflict in evidence as to whether explosion occurred.
OPINION
This is a personal injury accident brought by Wilma J. Cox and her husband, who is joined
because of alleged loss of consortium, against several defendants. The complaint alleges that
a hot water heater in her house malfunctioned by reason of defects therein and, as a result, an
explosion occurred which caused her physical injury. The house was a tract house. Heers,
Inc., being the owner of the tract, was joined as a defendant. Twin Lakes Village, Inc., the
general contractor for the tract, Ace Plumbing & Heating Co., the plumbing subcontractor, E.
B. Marshall, doing business as Marshall Appliance Store, General Electric Company, and
General Electric Supply Co., were also joined as defendants. The theory of liability as to all
defendants was negligence, either in the manufacture, assembly, installation, or service of
said water heater. General Electric Company and Heers are also charged with breach of
warranty.
After appellants had presented their evidence and rested, motions for dismissal were
granted as to all defendants except General Electric Company and General Electric Supply
Co.
Formal judgments of dismissal were entered in favor of Ace Plumbing & Heating Co.,
Heers, Inc., and Twin Lakes Village, Inc., and notices of entry of said judgments were served
on December 8, 1960, and filed that day or the following day. No formal judgment of
dismissal was signed with respect to defendant Marshall.
Upon completion of the trial before the court without a jury, judgment was then entered in
favor of General Electric Company and General Electric Supply Co. on January 10, 1961.
Thereafter, plaintiffs moved for a new trial upon the grounds of insufficiency of the evidence
to justify the verdict or other decision, and that it is against law. An order denying the same
was made May 24, 1961.
Plaintiffs appeal from the judgment of January 10, 1961, and from the order denying new
trial. No appeal was taken from any of the judgments of dismissal.
The evidence shows that on the morning of November 30, 1956, Mrs. Cox was about to
wash some clothes in her electric washer. She testified that she heard a noise coming from the
washer-dryer, and thinking that the appliance might be leaking water, she got on her hands
and knees to look under it and saw smoke coming out of the keys. She reached up to turn the
electricity off, and remembers nothing more. She told a neighbor that an explosion had taken
place. Marshall, the repairman, was summoned immediately. A neighbor testified that the
room looked as though an explosion had taken place, as did Mrs. Cox's husband who
examined the room some hours after the incident. Marshall, on the other hand, said there was
no evidence of any explosion and that the only damage to the electric appliances was blown
fuses caused by the welding of two small wires. Mrs. Cox's theory of the case was that the
explosion blew open the door of the washer-dryer with such force as to knock her across the
room; however, her doctor testified that she had no bruises, burns or external injuries of any
sort.
of any sort. From two previous accidents she had been receiving compensation from the
Nevada Industrial Commission, because of a finding of 40 percent permanent disability to her
hip and left buttock. She contends that these former injuries became aggravated because of
the incident of which she now complains.
The lower court did not find that such an incident took place. The court's decision in this
respect, in part, is as follows:
Whether or not the doctrine of res ipsa loquitur would apply in the instant case, upon
reflection does not present the principal problem. In order to apply any doctrine resulting in
liability it first becomes necessary to determine what happened. In the matter before the court
the question resolves itself into Did anything happen to the plaintiff?'
The plaintiff has a personal history of a degenerative condition in the hip joint. She
complained, since the last accident prior to the one now before the court, of continuing pain
and the doctor testified that she once had a permanent forty (40) per cent disability and at the
time of the trial was still a disabled person by reason of the hip condition.
The physical facts, in the light of her own history, present a complicated problem because
if it were established preponderantly that something did happen to the plaintiff and that
whatever happened was caused by the negligence of the defendants, most certainly damages
were extensive. The plaintiff has a chunk of metal which she uses as a substitute hip, in
effect, and that in itself is most unpleasant to contemplate for the balance of anyone's life. Yet
sympathy alone, as is well established, cannot justify a legal conclusion.
If the court could be satisfied that plaintiff's theory of what happened really did happen, it
might not be too difficult to resolve the chain of events which could impose liability.
Certainly the melting of the insulation around the jumper wires could have started a chain of
events. Yet assuming everything the plaintiff says to have happened really did happen, up to
the point where the steam got into the tumbler without any outlet, most certainly the door
of the washing machine would have had to fly open with tremendous force.
where the steam got into the tumbler without any outlet, most certainly the door of the
washing machine would have had to fly open with tremendous force.
From the position that the plaintiff was in, looking underneath the washing machine, the
door would have had to hit her a severe blow probably across one side of her face, at least
half of her head. Yet there were no bruises whatsoever on her. She was not scalded from hot
steam, which would be a natural conclusion to draw in the light of the testimony. She was not
even wet. If the door did not fly open with tremendous force then the trigger of the door latch
would have been light, or easily unlatched, and there couldn't have been a strong explosive
force.
Many conjectures can be made as to what happened to the plaintiff, i.e., that she fainted,
blacked out, fell and is suffering a memory lapse. Because of the absence of any marks,
bruises or burns, the court cannot hold that plaintiff's theory is established.
Going backward from that point, the court is in doubt as to whether or not the hot or
over-heated water could jump from the one outlet, the one or two inch air space and into the
funnel without considerable dispersion. As hard as both parties tried to establish their
respective point as to that, it comes down to one side saying yes it did' and the other side
saying no it didn't.' If we assume that the full velocity of a jet steam stream went directly into
the intake to the tumbler, we have the problem of the relief pressure valve providing a cutoff
and at least two other outlets that would allow steam to escape thus reducing the pressure
inside the tumbler.
Much has been made of the counter top being blown' up at one corner. First of all the
testimony of the husband was completely refuted when the court saw with its own eyes that
there were no nails as said husband had testified. As a matter of fact, the court will not accept
the testimony of the husband as to events which occurred after the so-called accident in
question. The Court cannot see how a person involved in litigation can indulge in self-help
to such an extent as to positively testify to three or four nails sticking out of the counter
top when there was no such thing.
can indulge in self-help to such an extent as to positively testify to three or four nails sticking
out of the counter top when there was no such thing.
The case was well tried. Most certainly much more evidence was permitted into the
record by the court than would ordinarily be permitted had there been a jury. The court,
attorney's and witnesses conducted a demonstration of the operation of the water flow into the
washing machine, demonstrated the use of the relief pressure valve, in fact operated the relief
pressure valve in evidence and found that a slight breath into the pressure valve operated the
valve. The Court then viewed the washing machine in question at the premises, observed
plaintiff's counsel in the same position as the plaintiff had testified she had assumed, and the
court also assumed the same position. A review of the entire case and all factors fails to
convince the court as to what really did happen to the plaintiff. This is not like the case where
a wheel from an automobile suddenly became dislodged and rolled along the street injuring a
plaintiff. We know in that type of situation that a wheel injured the plaintiff. Here we don't
know whether there was an explosion. We don't know if the plaintiff fainted, fell over,
stumbled, was hit by a blast of hot steam, washing machine door, slipped and fell, suffered a
memory lapse or anything else. We just know that she bent over to look underneath the
washing machine, reached up to turn off the machine and then found herself later in a
sitting-kneeling position against the wall of the kitchen a few feet away with a tender mark on
the back of her head. On this the court cannot base a judgment in favor of the plaintiff.
The record discloses a substantial conflict of evidence whether an explosion could have
occurred or actually did occur. The implied finding that an explosion did not occur is
supported by substantial evidence. We, therefore, will not disturb the judgment resulting
therefrom.
Appellant Wilma J. Cox having failed to prove to the satisfaction of the trial court that she
was injured as a result of an explosion is not entitled to judgment against any of the
respondents. Cf. McKenna v. Ingersoll, 76 Nev. 169
a result of an explosion is not entitled to judgment against any of the respondents. Cf.
McKenna v. Ingersoll, 76 Nev. 169, 350 P.2d 725. It is therefore unnecessary to consider
whether the doctrine of res ipsa loquitur is applicable.
The judgment and the order denying a new trial are affirmed.
____________
79 Nev. 71, 71 (1963) Osborn v. Richardson-Lovelock
DOROTHY Y. OSBORN, Appellant, v.
RICHARDSON-LOVELOCK, INC., Respondent
No. 4543
February 8, 1963 378 P.2d 521
Appeal from Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Ex-wife's action against automobile dealer for conversion of automobile traded to the
dealer by husband. The trial court sustained the dealer's plea of estoppel and the ex-wife
appealed. The Supreme Court, Badt, C. J., held that where the wife had permitted the
automobile to remain registered in her husband's name because she regarded him as reckless
and she wanted to protect herself from liability as an owner, and the husband traded the
automobile to the dealer by signing an application to the California Motor Vehicle
Department stating that the pink slip, which the wife had retained, was lost, the wife was
estopped to assert ownership as against the dealer.
Affirmed.
Springer, Hug & Newton, of Reno, for Appellant.
Adams, Reed, Bowen & Thatcher, of Reno, for Respondent.
1. Automobiles.
Under California statutes, contract for sale of used automobile in trade on purchase of new automobile
was not void merely because dealer did not take pink slip from customer, who signed application to
California State Department of Motor Vehicles stating that pink slip was lost. Cal.Vehicle Code 5600,
5600 (a,b) 5750, 5753, 5906, 5911.
2. Estoppel.
Where wife permitted automobile to remain registered in husband's name because she regarded him as
reckless and she wanted to protect herself from liability as owner and husband traded the automobile to
dealer by signing application to California's Motor Vehicle Department stating that pink slip, which wife
had retained, was lost, wife was estopped to assert ownership as against dealer. Cal.Vehicle Code 5600,
5600 (a, b), 5750, 5752, 5753, 5906, 5911, 17150.
OPINION
The main question presented on this appeal is whether the lower court committed error in
sustaining respondent's plea of estoppel as a defense to appellant's complaint for conversion
of an automobile. Other questions are also disposed of. We turn first to the facts.
Appellant, Dorothy Y. Osborn, and Jewell E. Osborn were married in December, 1945. In
January, 1958, they bought a used 1957 Ford station wagon. The funds used for the purchase
were Dorothy's sole and separate property but the certificate of title (pink slip) and the
registration certificate (white slip) were issued in the name of her husband. The certificate of
title was at all times kept in a file box at the home in California. In December, 1959, Dorothy
and Jewell separated and Dorothy commenced an action in California for divorce. At the time
of the separation Jewell conveyed to Dorothy all his interest in the California home, but
Dorothy did not request Jewell to endorse over to her the title certificate to the Ford. Jewell
advised that he wished to make a trip to Mexico and to use the 1957 Ford for that purpose.
Appellant consented, giving as her reason: I would rather have him driving it in his name; he
was very reckless. However, instead of going to Mexico, Jewell came to Reno, and on
January 5, 1960, offered to turn in this car to respondent for credit upon a new Ford
station wagon, informing respondent at that time that the title certificate, or "pink slip,"
had been lost.
of going to Mexico, Jewell came to Reno, and on January 5, 1960, offered to turn in this car
to respondent for credit upon a new Ford station wagon, informing respondent at that time
that the title certificate, or pink slip, had been lost. However, he did have possession of the
registration certificate, or white slip. On that date respondent telephoned the Division of
Registration, Department of Motor Vehicles, Sacramento, California, which advised
respondent that J. E. Osborn was the owner of the 1957 Ford station wagon and that the title
certificate was in his name. Respondent then inquired as to what procedure was necessary to
transfer title and to acquire a new certificate in its name. Upon being informed, Jewell Osborn
executed, on the printed form supplied by the California State Department of Motor Vehicles,
his statement of the loss of the original certificate of title and his request for the issuance of a
duplicate. This was forwarded by respondent, together with Osborn's authorization to mail
such duplicate to respondent.
On the following day, January 6, 1960, Osborn entered into a contract with respondent for
the purchase of a new 1961 Ford station wagon, upon which he was given a credit for $1,350
for the 1957 Ford, and took delivery of the new car. Subsequently, on January 27, 1960, the
court in which the divorce action was pending issued a temporary restraining order restraining
the Department of Motor Vehicles from transferring the title. An interlocutory decree was
entered by that court May 5, 1960, adjudging that the 1957 Ford station wagon was Dorothy's
property, and directing the California Department of Motor Vehicles to issue a new
ownership certificate to her. All these proceedings became known to respondent for the first
time on May 3, 1960. In the meantime Dorothy had come to Reno in January, 1960, saw her
husband, did not discuss the car with him, or demand its return. In fact it became evident to
her that he had turned the 1957 Ford in upon the purchase of a new car.
On May 3, 1960, respondent sold the 1957 car, but discovered that it had no title
documents for same, and, upon telephoning the California Department of Motor Vehicles,
was advised that a restraining order had been issued and served, and that transfer of title
to respondent was refused.
upon telephoning the California Department of Motor Vehicles, was advised that a restraining
order had been issued and served, and that transfer of title to respondent was refused.
Thereafter Dorothy demanded return of the car or its value, and upon refusal, commenced this
action.
Respondent pleaded estoppel as a special defense, reciting the facts as above outlined.
Both parties sought a summary judgment. Appellant's motion was denied, and respondent's
motion granted. This appeal followed. We first dispose of some preliminary matters.
1. Appellant contends that summary judgment was not authorized because genuine issues
of material fact were present. However, all the facts above recited are uncontroverted and
were fully brought out by appellant's answers to respondent's interrogatories, by the
deposition of the appellant, and by the uncontradicted affidavit of the respondent. In Dredge
Corporation v. Husite Co., 78 Nev. 69, 369 P.2d 676, 687, this court cited with approval
United States v. Halpern, 3 Cir., 260 F.2d 590 as follows: Rule 56(e) of the Federal Rules of
Civil Procedure, 28 U.S.C.A., requires that affidavits opposing, as well as supporting,
summary judgment shall be made on personal knowledge of facts which would be admissible
in evidence. The opposing affidavit of the defendants' counsel was accordingly clearly
incompetent to raise an issue of fact which would bar summary judgment. * * * Since the
answer did not controvert the allegations of the complaint by denying them or by setting up
countervailing facts and since the allegations of the complaint were categorically supported
by facts stated specifically on personal knowledge in the plaintiffs' supporting affidavit and
not rebutted, the record did not disclose a genuine issue as to any material fact. There is no
merit in this assignment.
[Headnote 1]
2. Appellant next contends: Failure of respondent to receive and take into his possession
the certificate of title, properly endorsed, prohibited him from becoming the owner of said
automobile. In support of this contention appellant first asserts that the issue must be
determined under California law {which respondent does not dispute), and then proceeds
to quote sections 5600, 5750, 5753, 5911, and 5906, in that order, of California Motor
Vehicle Code.
contention appellant first asserts that the issue must be determined under California law
(which respondent does not dispute), and then proceeds to quote sections 5600, 5750, 5753,
5911, and 5906, in that order, of California Motor Vehicle Code. Section 5600 reads in part
as follows: Transfer Requirements. No transfer of the title or any interest in or to a vehicle
registered under this code shall pass, and any attempted transfer shall not be effective, until
the parties thereto have fulfilled either of the following requirements:
Subdivisions (a) and (b) of this section then describe the endorsement and delivery of
certificate of ownership and registration card and the delivery thereof to the department, or
placing the same in the mail addressed to the department, with application for transfer.
Reference to other sections of the code is made in said subdivisions.
It should be noted that section 5600 does not declare that a transfer without complying
with the provisions of the section shall render the transfer void but merely that it shall not be
effective until the parties have complied. This must necessarily be so, in view of the
possibility that the certificate of ownership may be lost. This contingency is provided for in
section 5752 of the California Motor Vehicle Code. This section reads as follows: 5752.
Endorsement When Certificate Unavailable. When the required certificate of ownership is
lost, stolen, damaged, or mutilated, application for transfer may be made upon a form
provided by the department for a duplicate certificate of ownership. The transferor shall write
his signature and address in the appropriate spaces provided upon the reverse side of the
application and file the same together with the proper fees for duplicate certificate of
ownership and transfer.
And section 5911 provides specifically for the procedure when the original certificate of
ownership or registration is lost and proper application to the department is made. Under such
section the department may examine into the circumstances of the case, require the filing of
affidavits or other information, and, when satisfied, may transfer the registration, or register
the vehicle, and issue new certificates of ownership and registration to the persons found
to be entitled thereto.
vehicle, and issue new certificates of ownership and registration to the persons found to be
entitled thereto.
It should be noted too that under section 5906 when the transfer is made to a dealer who
holds the same for resale, application for transfer is not required to be made until such resale.
An illuminating picture of the legal situation resulting from the code appears in Henry v.
General Forming, Limited, 33 Cal.2d 223, 200 P.2d 785, 787: In his argument the plaintiff
assumed illegality' of the contract'. He talks of the illegal transaction' and illegality' of the
transaction. The assumption may not be indulged. The code provisions do not aim at tainting
with illegality the sale and purchase of an automobile which is the only contract or transaction
involved. The requirements deal solely with registration of ownership to give notice of the
transfer after the purchase has been consummated. * * * The legal consequences of violation
of provisions for registration are to be resolved by the express provisions of the Vehicle
Code. The failure of the passing of title or ineffectiveness of an attempted transfer thereof
declared to follow noncompliance (section 186), and illegality' of the purchase and sale
transaction are distinct and unrelated factors in the sense that the latter without more does not
flow from the former. The requirements for registration of title and ownership, as indicated
by the Code provisions, were enacted in the interest of the public welfare to protect innocent
purchasers and afford identification of vehicles and persons responsible in cases of accident
and injury. * * *
As noted above in the recital of facts, compliance was made by respondent with the code
requirements growing out of Jewell Osborn's statement that the certificate of title had been
lost. It is clear to us that nothing in the California Motor Vehicle Code or in respondent's
action thereunder rendered the sale void.
Appellant's contention that the failure of respondent to receive and take into his possession
the certificate of title, properly endorsed, prohibited him from becoming the owner of said
automobile, is not only a misinterpretation of the applicable sections of the California
Motor Vehicle Code, but is entirely irrelevant to the question of whether all the facts
supported respondent's plea that appellant was estopped to assert her ownership.
misinterpretation of the applicable sections of the California Motor Vehicle Code, but is
entirely irrelevant to the question of whether all the facts supported respondent's plea that
appellant was estopped to assert her ownership. The assignment is without merit.
[Headnote 2]
3. Appellant next contends that the facts did not warrant the application of the doctrine of
estoppel to defeat appellant's claim of ownership in her action for conversion. In support of
this contention appellant cites and quotes from a score or more cases which recite the
necessary elements that must appear for the successful support of an estoppel in pais or
estoppel by conduct. Respondent does not take issue with any of these cases, nor does the
court. We are of the opinion that the facts as recited present a classic case for the justification
of the trial court's holding that her actions estopped her from asserting her ownership of the
car. She permitted the registration and ownership to remain in her husband's name; she
clothed him with the indicia of title; and permitted him to retain possession. Obviously, under
her own recitals, she did this because he was very reckless and she wanted to protect herself
against liability for damages growing out of his driving of the car, under the California statute
which imputes the driver's negligence to the owner. California Motor Vehicle Code, section
17150. That respondent was misled by her actions, as a result of which it parted with its
ownership of a new car, taking the old car as a down payment, can hardly be questioned.
This case does not turn upon appellant's actual ownership of the car but upon estoppel to
assert her ownership, a doctrine long recognized in equity. Respondent cites a few of these
cases, which do as well as any, to illustrate the principle. Ellis v. Nelson, 68 Nev. 410, 233
P.2d 1072; Rapp v. Hauger Motors Co., 77 Cal. App. 417, 246 P. 1067; Sidney v. Wilson, 67
Cal.App. 282, 227 P. 672; Chucovich v. San Francisco Securities Corporation, 60 Cal.App.
700, 214 P. 263.
Appellant relies on Commercial Credit Corporation v. Smith, 76 Nev. 345, 353 P.2d 905,
but the case is clearly distinguishable.
clearly distinguishable. The owner retained the certificate of title and the purchaser made no
inquiry about any indicia of title other than possession. We held that the mere delivery of
possession did not clothe the dealer with indicia of title so as to estop the owner from
asserting his title. Here respondent not only had the registration certificate in Jewell Osborn's
name but he made further inquiry from the natural source, and learned that the ownership was
also in Osborn's name, and the entire situation was created by Mrs. Osborn. The trial court's
holding that she was estopped was entirely in order.
Affirmed with costs.
____________
79 Nev. 78, 78 (1963) Beasley v. Lamb
In the Matter of the Application of MILTON NORRIS BEASLEY
for a Writ of Habeas Corpus.
MILTON NORRIS BEASLEY, Appellant, v. RALPH LAMB,
Sheriff of Clark County, Nevada, Respondent.
No. 4546
February 11, 1963 378 P.2d 524
Judge.
Habeas corpus proceeding by accused who was held to answer for murder after a
preliminary hearing. The lower court denied the petition, and accused appealed. The Supreme
Court, Thompson, J., held that evidence offered at a preliminary hearing supported a
reasonable inference that defendant either killed a certain man or aided or abetted the person
who did so, and therefore accused was not unlawfully restrained of his liberty and was not
entitled to habeas corpus.
Judgment affirmed.
Drake DeLanoy, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General; Edward G. Marshall, Clark County District
Attorney, William S. Barker and Kaye Richey, Deputy District Attorneys, Clark County, Las
Vegas, for Respondent.
1. Habeas Corpus.
Sole question involved on review of denial of habeas corpus challenging an order directing defendant,
after a preliminary hearing, to be held to answer for a crime is whether evidence received as to defendant at
the preliminary hearing provided sufficient cause to believe him guilty of offense charged. NRS
171.455.
2. Criminal Law.
The words sufficient cause as used in preliminary examination statute, do not require the state to negate
all inferences which might excuse or explain the accused's conduct, but if evidence produced will support a
reasonable inference that accused committed the offense or aided or abetted another to do so, sufficient
cause to order accused to answer is shown. NRS 171.455, 195.020.
3. Habeas Corpus.
Evidence offered at a preliminary hearing supported a reasonable inference that defendant either killed a
certain man or aided or abetted the person who did so, and therefore accused was not unlawfully restrained
of his liberty and was not entitled to habeas corpus. NRS 171.455.
OPINION
At 6:00 a.m. on August 11, 1961, William Greene was found dead in the front seat of a
parked Pontiac car in Las Vegas. He had been shot twice in the head. Either bullet was totally
disabling, thus causing the pathologist to exclude suicide. Death was estimated to have
occurred between 8:30 p.m. of August 10, 1961 and 12:30 a.m. of August 11, 1961.
Subsequently a criminal complaint was filed, charging the appellant Beasley and four others
(Harris, Patterson, Valrie and Black) with the murder of Greene. After a preliminary hearing
all except Black were held to answer in the district court. Beasley thereafter petitioned that
court for a writ of habeas corpus, which was denied. He has appealed from the order of
denial.
[Headnotes 1-3]
NRS 171.455 requires the magistrate to order an accused held to answer if it appears from
the preliminary examination that a public offense has been committed, and there is sufficient
cause to believe the defendant guilty thereof. In this case, sufficient proof of the corpus
delicti of the crime, i.e., the fact of death and the criminal agency of another causing death,
Sefton v. State, 72 Nev. 106, 295 P.2d 385; State v. Fouquette, 67 Nev. 505, 221 P.2d 404, is
admitted. Hence, the sole question posed for our determination is whether the evidence
received as to Beasley provides sufficient cause to believe him guilty of the offense
charged. In making this determination it is not our function, nor was it the function of the
magistrate at the preliminary hearing, or the district court upon the habeas corpus proceeding,
to pass upon the sufficiency of the evidence to justify conviction. State v. Fuchs, 78 Nev. 63,
368 P.2d 869. Nor do the words sufficient cause, as employed in the statute, require the
state to negate all inferences which might excuse or explain the accused's conduct. Goldblatt
v. Harris, 74 Nev. 74, 322 P.2d 902. If the evidence produced will support a reasonable
inference that Beasley either killed Greene, or aided and abetted another who did so, NRS
195.020, sufficient cause to order him to answer is shown. With these preliminary
observations in mind, we turn to the evidence.
Before his death Greene had, from time to time, been employed as an informer to the
Federal Bureau of Narcotics. In that capacity he had purchased narcotics from the defendants
Harris, Patterson and Valrie. As a consequence, those defendants were indicted in the spring
of 1961 for violation of the federal narcotics laws. Presumably Greene, but for his intervening
death, would have been a witness in the scheduled trial or trials of Harrison, Patterson and
Valrie.
During the last part of July 1961, Beasley purchased a small gun from a woman in
Oakland, California. During the first few days of August 1961 he drove a white Chrysler car,
in company with another woman, to Los Angeles. During the trip the woman inquired about
the gun and was told that he "would use it to get some money."
gun and was told that he would use it to get some money. While in Los Angeles Beasley
met and spoke with Harris, Patterson and Valrie. He returned to Oakland and on August 6,
1961, advised his woman companion that he was going to Los Angeles and then to Las Vegas
and would return on August 10. On August 7, he registered at the Carver House in Las Vegas
and asked if Greene was in town. He was told that Greene was in town. On August 10 at 9:30
p.m. at the Carver House keno lounge he told another woman he didn't think he would be
back to the Carver House, but what he was going to do, this was the way he made his
money. One-half hour later a witness observed two cars parked in front of her home, the first
one a Pontiac, and a white car behind. A heavy-set person got out of the rear car. Two shots
were heard. The white car was driven away. The fingerprints of Beasley were found inside the
Pontiac on the glove compartment, as well as on the outside left front and right rear doors of
that car. He is a heavy-set person. The foregoing recital comprises the evidence offered
during the preliminary hearing as to Beasley. In our view it supports a reasonable inference
(as distinguished from proof beyond a reasonable doubt) that Beasley either killed Greene or
aided and abetted the person who did so. We therefore conclude that legal evidence
establishing sufficient cause was presented and that it was proper that he be held to answer
in the district court. In such circumstances he is not unlawfully restrained of his liberty.
1

Affirmed.
____________________

1
The briefs and oral argument devoted much attention to the rule of law that an accused may not be held to
answer on the uncorroborated testimony of an accomplice. NRS 175.265; Ex parte Sullivan, 71 Nev. 90, 280
P.2d 965; Ex parte Hutchinson, 76 Nev. 478, 357 P.2d 589. The testimony which appellant claims to be within
the mentioned rule (which testimony is not set forth in our opinion) was not given by an accomplicerather, it
was related by a third person with whom codefendants of Beasley had conversed, and was received to support
the state's theory that such codefendants were implicated in the homicide as principals. NRS 195.020. We have
not considered such testimony in ruling on this appeal.
____________
79 Nev. 82, 82 (1963) Nevada State Press v. Fax, Inc.
NEVADA STATE PRESS ASSOCIATION; SOUTHWESTERN PUBLISHING
COMPANY, INC., a Nevada Corporation; and LAS VEGAS SUN, INC., a Nevada
Corporation, Appellants, v. FAX, INC., a Nevada Corporation, Respondent.
No. 4552
February 13, 1963 378 P.2d 674
Appeal from the Eighth Judicial District Court, Clark County; Jon R. Collins, Judge.
Proceeding in which the lower court ruled that a publication published by defendant was a
daily newspaper of general circulation qualified under statute, NRS 238.030, to publish legal
notices, and the plaintiffs appealed. The Supreme Court, McNamee, J., held that defendant's
daily mimeographed publication, which was devoted exclusively to reporting information
obtained daily from public records of county and which contained no news of a general
character or of general interest, was not a newspaper of general circulation qualified to
publish legal notices.
Reversed.
Ralph L. Denton, William Singleton and Rex A. Jemison, of Las Vegas, for Appellants.
Cornwall & Nitz, of Las Vegas, for Respondent.
1. Notice.
Primary purpose for printing legal notices is to give widest publicity practicable.
2. Newspapers.
Publication may be newspaper of general circulation qualified under statute to publish legal notices,
even though it is devoted to interests of particular class of persons and specializes in news and intelligence
primarily of interest to such class, if in addition to such special news, it also publishes news of a general
character and of general interest, and to some extent circulates among general public. NRS 238.030.
3. Newspapers.
Daily mimeographed publication, which was devoted exclusively to reporting information obtained daily
from public records of county and which contained no news of a general character and of general
interest, was not a "newspaper" of general circulation qualified under statute to
publish legal notices.
character and of general interest, was not a newspaper of general circulation qualified under statute to
publish legal notices. NRS 238.030, 238.040.
OPINION
The question in this case is whether The Daily Fax published by Fax, Inc., the respondent,
is a daily newspaper of general circulation qualified to publish legal notices.
NRS 238.030 provides that Any and all legal notices or advertisements shall be published
only in a daily, a triweekly, a semiweekly, a semimonthly, or a weekly newspaper of general
circulation and printed in whole or in part in the county in which the notice or advertisement
is required to be published, which newspaper if published: * * * (b) Daily, shall have been so
published * * * during the period of at least 1 year * * *.
NRS 238.040 provides that no newspaper shall be competent as the means for the
publication of any legal notices or advertisements unless such newspaper shall have and
maintain in force a second-class mailing permit issued by the United States Post Office
Department.
It is conceded that The Daily Fax is a daily publication published in North Las Vegas,
Clark County, has been so published for more than a year, and has obtained a valid
second-class mailing permit. Appellants contend, however, that it is not a newspaper of
general circulation.
The contents of The Daily Fax are confined to information taken from the public records
of Clark County, Nevada, on a daily basis, such as the recording of deeds and trust deeds, the
filing of various types of legal actions, the issuance of building permits and licenses, and new
construction news. The paid circulation is approximately 150 without any appreciable
circulation in the residential areas. It is not available at downtown newsstands except at the
Clark County Courthouse newsstand and at the newsstands in the Las Vegas and North
Las Vegas post offices.
newsstand and at the newsstands in the Las Vegas and North Las Vegas post offices. The
subscription list of The Daily Fax includes 71 different professions, trades, and callings.
Although the Nevada statutes relating to the publication of legal notices in newspapers
have existed since 1897 and were amended as recently as 1960, at no time has the legislature
defined the phrase newspaper of general circulation. Thus, we must be guided by case law.
[Headnotes 1, 2]
The primary purpose for the printing of legal notices is to give the widest publicity
practicable. Continental Life. Ins. Co. v. Mahoney, 185 Ark. 748, 49 S.W.2d 371. Even
though it is devoted to the interests of a particular class of persons and specializes in news
and intelligence primarily of interest to that class, a publication may nevertheless be a
newspaper of general circulation if, in addition to such special news, it also publishes news of
a general character and of a general interest, and to some extent circulates among the general
public. Annot., 68 A.L.R. 542 (1930).
A copy of one issue of The Daily Fax is contained in the Record on Appeal. It appears to
be mimeographed rather than printed, on sheets approximately 8 1/2 by 11 inches in size, and
its front page recites that it is a DAILY AUTHENTIC REPORT OF CLARK COUNTY
OFFICIAL RECORDS. From this description it does not purport to be a newspaper of
general circulation. No news of a political, religious, commercial, or social nature is
contained therein, and there are no editorials. Its contents consist entirely of the daily list of
public records.
We have been unable to find a single case holding that such a publication of mere statistics
or of public records is a newspaper of general circulation qualified to publish legal notices.
Even in the case of Lynn v. Allen, 145 Ind. 584, 44 N.E. 646, 33 L.R.A. 779, which
respondent describes as the leading case on the subject, The Daily Reporter which was
approved for legal notices, and which was devoted primarily to the dissemination of legal
matters, also contained "one or more columns devoted to the general news of the day of
interest to the general reader" and "that there is also published in it news and
information of a general character, such as is published in other newspapers of general
circulation, and of interest to the general reader."
legal matters, also contained one or more columns devoted to the general news of the day of
interest to the general reader and that there is also published in it news and information of a
general character, such as is published in other newspapers of general circulation, and of
interest to the general reader.
In Continental Life Ins. Co. v. Mahoney, supra, the requirement that a publication to be a
newspaper of general circulation must contain items of general interest is discussed. There the
Arkansas Supreme Court held that the Daily Legal News, which specialized in news relating
to courts, real estate, statistical news, and business transactions in the county, was not
qualified to publish legal notices because it failed to publish news of a general nature, such as
current events or short telegraphic dispatches of general interest. In Williamson v. Nixon, 187
Ark. 762, 62 S.W.2d 24, the same court decided the question whether this same newspaper
had, since its earlier decision, become a newspaper eligible to publish legal notices. In
deciding in the affirmative, it said: We feel constrained to hold, in view of the enlarged news
service which the publication now renders, that it has become and is a newspaper eligible to
print legal notices.
[Headnote 3]
From the foregoing we conclude that The Daily Fax is not a newspaper of general
circulation and that the lower court erred in holding otherwise. As stated in Finnegan v. Buck,
187 N.Y.S. 705, 706, where the publication under consideration was held not to constitute a
newspaper, further discussion could but amplify the obvious.
1

Reversed.
____________________

1
We are not called upon at this time to determine whether substance alone is the sole test to determine
general circulation, or whether the ratio of circulation to population is an element to consider.
____________
79 Nev. 86, 86 (1963) Hopper v. Hopper
FERN JUANITA HOPPER, Appellant, v.
ALVA A. HOPPER, Respondent.
No. 4558
February 22, 1963 378 P.2d 875
Appeal from the Sixth Judicial District Court, Pershing County; Merwyn H. Brown, Judge.
Husband's divorce action. The trial court rendered judgment granting the husband divorce
and the wife appealed. The Supreme Court, McNamee, J., held that the court did not abuse its
discretion in failing to allow the wife traveling expenses on her delayed motion therefor or
denying her continuance sought on last day to move therefor on ground of illness of daughter
of which she had known for several months.
Affirmed.
Glen W. Dilly, of Reno, for Appellant.
Richard C. Minor, of Reno, for Respondent.
1. Continuance.
Motion for continuance is addressed to discretion of trial court.
2. Divorce.
Allowance of traveling expenses in divorce action is within trial court's discretion. NRS 125.040.
3. Divorce.
Trial court could not be held to have abused its discretion in denying delayed motion of wife in husband's
successful divorce action for traveling expenses in view of evidence as to property and income of wife and
her ability to work. NRS 125.040.
4. Divorce.
Trial court did not abuse its discretion in denying wife's motion for continuance in husband's divorce
action made on last day for motion therefor on ground of illness of daughter which wife had known of for
several months.
OPINION
This is an appeal by a wife from a judgment granting her husband a divorce.
The complaint was filed December 8, 1961. The answer thereto was filed January 8, 1962.
Trial was set for March 12, 1962. On March 7, 1962, on the wife's motion supported by an
affidavit that she was ill, the setting was vacated and the trial reset for May 8, 1962. On the
latter date the action came on for hearing without the presence of the wife. The attorneys for
the parties at that time stipulated to perpetuate the testimony of the husband's resident
witness, and at the same time respondent, under oath, answered certain written interrogatories
that had been filed. On May 18 the court signed an order setting the trial date for June 12,
1962. On June 4, 1962, the wife filed a motion for temporary alimony, preliminary attorney
fees, and traveling expenses for her and their minor daughter from Sioux City, Iowa, to
Lovelock, Nevada. On June 11, 1962, the wife filed a motion for continuance noticing the
same to be heard on June 18, 1962, and based on the affidavit of a doctor who stated that the
daughter, as a result of an accident, had been his patient since January 17, 1962, and that
because of her health she should not travel for approximately six months and that she needed
her mother's care during that time.
The case was called for trial on June 12, 1962. The wife's attorney moved the court for
allowances in accordance with her said motion. The motion was denied except as to court
costs and attorney fees, the court reserving its ruling thereon until the end of the trial. The
pending motion for continuance also was denied. The wife's counsel thereupon moved for
dismissal of the action, and that motion was denied. When the wife's counsel thereupon stated
that he withdrew as attorney for the wife, the court stated that he could not be allowed to
withdraw.
1
The husband was examined. Appellant's counsel refused to cross-examine. At
the conclusion of the evidence the husband was granted a divorce, the property settlement
with respect to alimony was approved by the court, the wife was awarded custody of the
minor child, and the husband was ordered to pay her $100 per month for child support.
____________________

1
Her attorney on this appeal did not represent her in the court below.
for child support. He was also ordered to pay to the wife an attorney fee of $100, together
with the court costs.
Two errors are assigned on this appeal:
1. The failure of the court to allow appellant traveling expenses.
2. The failure of the trial court to grant appellant's motion for continuance.
[Headnotes 1-3]
A motion for continuance is addressed to the discretion of a trial court. Benson v. Benson,
66 Nev. 94, 204 P.2d 316. An allowance of traveling expenses is also within the trial court's
discretion. NRS 125.040. This is conceded by the appellant. Thus, we are concerned only
with the question of whether the trial court abused its discretion in either instance.
2

The evidence discloses that the husband had a total gross income of $400 a month. The
wife retained the house valued at $16,000 in which the parties had an equity of over $4,000,
and also the furnishings therein valued at $5,000 to $6,000. In addition thereto she retained
their business worth $12,500 in which their equity was $8,000. From this business she had an
income of from $50 to $60 a week. There is no evidence that at the time of the trial the wife
was employed, but it does appear that she was capable of working. From such evidence and
from the delay in filing the motion we will not say that the lower court abused its discretion in
refusing to grant her motion for such expenses.
[Headnote 4]
Appellant had already been granted continuances totaling three months. Her motion for
continuance which was denied was filed the evening before the trial, and was based on an
illness of the daughter known several months before to exist. Under the circumstances, the
trial court could properly believe that the last motion for continuance was made for the
purpose of delay only.
____________________

2
We are not concerned here with the holding in Katleman v. Katleman, 74 Nev. 141, 325 P.2d 420, where
the appeal was from the order denying allowance pendente lite, because here the appeal is from the final
judgment.
While a failure of justice sometimes can result from a denial of such motions, it is likewise
true that a failure of justice can result from the granting of the same.
The assignments being without merit, the judgment is affirmed.
____________
79 Nev. 89, 89 (1963) Carter v. State
JAMES ALBERT CARTER, Appellant, v.
STATE OF NEVADA, Respondent.
No. 4515
February 25, 1963 378 P.2d 876
Appeal from judgment of the Seventh Judicial District Court, White Pine County; Jon R.
Collins, Judge.
Found to be habitual criminal, in the trial court, defendant appealed. The Supreme Court,
Thompson, J., held that Oregon conviction for larceny by bailee growing out of charge that
defendant feloniously failed to deliver, keep and account for washing machine of which he
was in possession by virtue of written conditional sales contract would not constitute felony
of embezzlement in Nevada and accordingly could not be used as prior felony conviction to
support habitual criminal adjudication.
Judgment reversed and remanded with directions.
Nada Novakovich, of Reno, and Robert R. Gill, of Ely, for Appellant.
Harvey Dickerson, Attorney General, Carson City, and A. D. Demetras, White Pine
District Attorney, Ely, for Respondent.
1. Criminal Law.
Oregon conviction for larceny by bailee growing out of charge that defendant feloniously failed to
deliver, keep and account for washing machine of which he was in possession by virtue of written
conditional sales contract would not constitute felony of "embezzlement" in Nevada
and accordingly could not be used as prior felony conviction to support habitual
criminal adjudication.
virtue of written conditional sales contract would not constitute felony of embezzlement in Nevada and
accordingly could not be used as prior felony conviction to support habitual criminal adjudication. NRS
176.180, subd. 2, 205.300, 205.345, 207.010 and subd. 1.
2. Attorney and Client; Costs.
Supreme Court would direct lower court to grant compensation on defendant's appeal for co-counsel
whom court appointed counsel associated with without obtaining court order for appointment where state
did not resist request and reviewing court was satisfied the trial court would have honored request in first
instance. NRS 7.260, subd. 4, 174.120.
OPINION
The district court found Carter to be a habitual criminal and sentenced him to the Nevada
State Penitentiary for a term of not less than 10 nor more than 15 years. NRS 207.010(1);
NRS 176.180(2). Carter claims that the sentence is illegal because the record does not
establish that he had twice previously been convicted of any crime which, under the laws of
Nevada, would amount to a felony. NRS 207.010.
[Headnote 1]
The state proved that Carter had previously been convicted in the State of Oregon of the
separate felony crimes of polygamy and larceny by bailee. We must decide whether the
Oregon offense of larceny by bailee would, if committed in Nevada, constitute a felony under
Nevada law.
1
It is the state's position that had Carter perpetrated the offense here, the felony
of embezzlement would have occurred. NRS 205.300. On the other hand, Carter argues that
such offense, had it occurred in this state, would have been a gross misdemeanor under NRS
205.345.
The Oregon charge (to which Carter pleaded guilty) reveals that he (Carter) was alleged to
be in possession of a Bendix washer by virtue of a written conditional sales contract, and that
he feloniously failed to deliver, keep and account for the same.
____________________

1
Other errors were assigned, but need not be determined.
keep and account for the same. Such charge, under Oregon law, is labeled larceny by
bailee. The inception of the Oregon occurrence was an ordinary business transaction, a
conditional sale. A debtor-creditor relationship was established. Later, because of conduct by
Carter (the precise nature of which we do not know), a public offense occurred. Had his
conduct happened in Nevada, perhaps NRS 205.345 dealing specifically with conditional
vendees (and others) who, with intent to defraud the conditional vendor, sell, remove, conceal
or destroy the property conditionally sold, would apply. However, one convicted under that
statute is guilty of a gross misdemeanor. Though the state is willing to acknowledge the
probable application of NRS 205.345 had the crime been committed here, it nonetheless
insists that the circumstances also come within the statute defining the felony crime of
embezzlement. NRS 205.300. We do not think so.
In brief, the embezzlement statute speaks of a bailee who converts or misappropriates
money, goods, or property to his own use.
2
The term bailee is defined. We have
heretofore recognized that the embezzlement statute is limited to cases in which there is
a relation of trust or confidence.
____________________

2
NRS 205.300
1. Any bailee of any money, goods or property, who shall convert the same to his own use, with the intent
to steal the same or to defraud the owner or owners thereof and any agent, manager or clerk of any person,
corporation, association or partnership; or any person with whom any money, property or effects shall have been
deposited or entrusted, who shall use or appropriate such money, property or effects or any part thereof in any
manner or for any other purpose than that for which the same was deposited or entrusted, shall be guilty of
embezzlement, and shall be punished in the manner prescribed by law for the stealing or larceny of property of
the kind and name of the money, goods, property or effects so taken, converted, stolen, used or appropriated.
2. Any use of the money, goods or property by any bailee thereof, other than that for which the same was
borrowed, hired, deposited, carried, received or collected, shall be prima facie evidence of conversion and of
intent to steal the same and defraud the owner or owners thereof.
3. The term bailee' as used in this section, shall be construed to include and mean all persons with whom
any money, goods or property has been deposited and all persons to whom any goods or property has been
loaned or hired, and all persons to whom any goods or property shall be delivered, for any purpose whatsoever,
and all persons who shall, either as agent, collector or servant, be empowered, authorized or entrusted to carry,
collect or receive any money, goods or property of another.
have heretofore recognized that the embezzlement statute is limited to cases in which there is
a relation of trust or confidence. State v. Monahan, 50 Nev. 27, 37, 249 P. 566, 569 (dicta);
State v. Trolson, 21 Nev. 419, 423, 32 P. 930, 931 (dicta); State v. Rothrock, 45 Nev. 214,
225, 200 P. 525 (dicta). In each cited case, the relationship of trust or confidence was found
to exist. In Monahan and Trolson the convictions were affirmed. In Rothrock the conviction
was reversed on other grounds. Indeed, in every Nevada case we have found involving the
affirmance of a conviction for embezzlement, that relationship was present. State v.
Monahan, supra; State v. Trolson, supra; Ex parte Ricord, 11 Nev. 287; State v. Carrick, 16
Nev. 120; Wood v. State, 76 Nev. 312, 353 P.2d 270. Nor have we been directed to a case
where, under a statute substantially the same as ours, a conviction for embezzlement has been
held proper, absent a relationship of trust or confidence. Conversely, this court in State v.
Weber, 31 Nev. 385, 103 P. 411, reversed an embezzlement conviction where the record did
not show that the money, which the defendant allegedly embezzled, had been intrusted to
him and, in breach of that trust, he had refused to deliver it to the rightful owner upon
demand.
A conditional sales contract does not either create or rest upon a relationship of trust or
confidence, as those words are used in the law. The contracting parties look to the provisions
of their agreement for protection and the enforcement of rights and correlative duties. In the
event of breach, criminal (as well as civil) sanctions may be imposed if a criminal intent is
found to exist. However, the core of the charge is the breach of an agreement coupled with a
criminal intent; it is not the breach of a relationship of trust and confidence united with a
criminal intent. No citation of authority is required for the proposition that criminal statutes
are to be strictly construed. We will not liberalize the felony embezzlement statute to embrace
conduct which is patently a gross misdemeanor under NRS 205.345 dealing with the
destruction or removal of property upon which a conditional sales contract exists.
with the destruction or removal of property upon which a conditional sales contract exists.
Therefore, we conclude that the Oregon felony of larceny by bailee would not, had it
occurred in Nevada, be a felony here. The district court erred in finding Carter to be a
habitual criminal.
The primary offense for which Carter was tried and convicted in Nevada was that of an
assault with a deadly weapon. The punishment therefor is imprisonment in the state prison for
not less than one year, or exceeding two years, or a fine not less than $1,000 nor exceeding
$5,000, or to both fine and imprisonment. NRS 200.400(2). The judgment and sentence of
Carter as a habitual criminal is reversed. The cause is remanded with direction to pronounce a
sentence as prescribed by NRS 200.400(2), nunc pro tunc as of December 9, 1961, thereby
giving Carter credit for time served under the erroneous sentence.
[Headnote 2]
During trial, Carter was represented by court appointed counsel. NRS 174.120. Such
counsel chose to appeal to this court and is entitled to recover the enlarged compensation
provided for by NRS 7.260(4). He associated co-counsel on the appeal, without obtaining a
court order of appointment. Co-counsel asks that we direct the payment of compensation for
her services as well. The state does not resist her request. We are satisfied that the trial court
would have honored a request for the appointment of co-counsel on appeal, had one been
made. Therefore, we direct the lower court to give to each counsel for Carter the certificate
specified in NRS 7.260(3). Cf. State v. Nystedt, 79 Nev. 24, 377 P.2d 929.
Reversed and remanded with directions.
____________
79 Nev. 94, 94 (1963) Short v. Hotel Riviera, Inc.
BENNY SHORT, Appellant, v. HOTEL RIVIERA, INC., a Nevada Corporation,
MUSICIANS' PROTECTIVE UNION, LOCAL NO. 369, a. f. of m. of Las Vegas, Nevada,
and LEWIS ELIAS, Respondents.
No. 4550
February 27, 1963 378 P.2d 979
Appeal from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Relief band leader's suit against union, hotel, hotel house conductor and others for alleged
conspiracy pursuant to which his musicians were assertedly persuaded to terminate their
employment with him and continue at hotel under house conductor so as to deprive him of
services when he was under contract to fulfill other hotel engagements. The lower court
rendered summary judgment in favor of the hotel, union, and house conductor, and plaintiff
appealed. The Supreme Court, Badt, C. J., held that matters presented on the motion were not
such that it could be said that no reasonable man could conclude that defendants did not
conspire.
Reversed and remanded.
Morton Galane, of Las Vegas, for Appellant.
Woodburn, Forman, Wedge, Blakey and Folsom, of Reno, for Respondent Hotel Riviera,
Inc., a Nevada corporation.
Berkson and Phillips, of Las Vegas, for Respondent Musicians' Protective Union.
Brown and Matteucci, of Las Vegas, for Respondent Lewis Elias.
1. Judgment.
Matters presented on designated defendants' summary judgment motions in relief band leader's suit
against hotel, union, hotel's regular house conductor and others for alleged conspiracy to obstruct plaintiff
in pursuit of occupation, pursuant to which, musicians in his band were assertedly enticed to terminate
their employment under him and continue at hotel under leadership of house
conductor and he was deprived of their services, were not such that it could be said
that no reasonable man could conclude that defendants did not conspire or that
plaintiff was not damaged and accordingly the granting of summary judgment was
error.
to terminate their employment under him and continue at hotel under leadership of house conductor and he
was deprived of their services, were not such that it could be said that no reasonable man could conclude
that defendants did not conspire or that plaintiff was not damaged and accordingly the granting of summary
judgment was error.
2. Judgment.
In deciding propriety of summary judgment, all evidence favorable to party against whom summary
judgment was rendered will be accepted as true.
3. Conspiracy.
When an act done by an individual is not actionable because justified by his right, though harmful to
another, it becomes actionable when done in pursuance of combination of persons actuated by malicious
motives and not having same justification as the individual.
4. Conspiracy.
Relief band leader's complaint against union, hotel, hotel house conductor and others charging them with
conspiring to obstruct and interfere with him in pursuit of occupation, pursuant to which they assertedly
persuaded his band members to terminate employment under him and continue at hotel under leadership of
house conductor depriving him of their services when he was under contract to fulfill other engagements
was not insufficient to state cause upon which relief could be granted even though hotel had right to
terminate contract, musicians had right to terminate employment, and house conductor had right to recruit
relief orchestra and union to promulgate, interpret, and act under its bylaws.
OPINION
This is an appeal from a summary judgment in favor of the three respondents above
named. Short, appellant, had charged these three respondents with participating in a
conspiracy for the purpose of obstructing and interfering with him in the pursuit of his
occupation of conducting a relief band in the Las Vegas, Nevada, area, pursuant to which,
among other things, the musicians in appellant's relief band were persuaded, induced, and
enticed to terminate their employment under appellant, and to continue at the Hotel Riviera
under the leadership of Elias, depriving appellant of their services during a period when he
was under contract to fulfill other resort hotel engagements, all to appellant's damage, more
particularly set forth.
[Headnote 1]
Appellant assigns error in the court's order for a summary judgment in favor of the
defendant union, the Riviera, and Elias on the ground that there were material issues of fact
for determination. We are of the opinion that the assignment of error is well taken. Although
we have approved the salutary purposes of the rule to the end that trials may be obviated
when they would serve no useful purpose (Lockart v. Maclean, 77 Nev. 210, 361 P.2d 670;
Franktown v. Marlette, 77 Nev. 348, 364 P.2d 1069; Dredge Corp. v. Husite Co., 78 Nev. 69,
367 P.2d 676; Scapecchi v. Harolds Club, 78 Nev. 290, 371 P.2d 815), we have never
approved its use where material issues of fact remained for determination. Corn v. French, 71
Nev. 280, 289 P.2d 173; Parman v. Petricciani, 70 Nev. 427, 272 P.2d 492; Smith v.
Hamilton, 70 Nev. 212, 265 P.2d 214. Confining ourselves for the moment to the single
question as to the sequence of events appearing in the record, we do not think it can be said
that no reasonable man could conclude from those facts and reasonable inferences to be
drawn therefrom that the defendants did not conspire to injure the plaintiff or that he was not
damaged thereby.
We turn now to the facts. These facts are derived from sundry discovery depositions,
affidavits, the testimony taken at the hearing of a motion for a temporary injunction, and
numerous exhibits received in evidence. In the Las Vegas area the bylaws of the local
musicians' union precluded musicians from working more than six nights a week. In this
situation the necessity of relief bands or relief orchestras arose which served the various
resort hotels on the seventh night. Benny Short was the leader of such a relief orchestra,
which he had organized in 1946. In the 16 years following he had recruited and trained such
orchestra and enjoyed an excellent reputation. In 1960, the period involved herein, it played
on the regular orchestra's night off at the Flamingo, Sahara, Thunderbird, and Riviera resort
hotels and the Mint Club. Early in 1961 the hotel started a new production. Before the first
night that Short would have played in relief, approximately January 8, 1961, the president of
the hotel requested permission from the union to replace Short with the regular house
conductor.
the hotel requested permission from the union to replace Short with the regular house
conductor. When the request was refused the president told union officials he would
terminate Short. Subsequently Short inquired of these same officials if something was the
matter and they replied that nothing was wrong. It elsewhere appeared, however, that there
had been many complaints against Short's conducting. Approximately the same date as this
latter conversation Elias, then chairman of the Union Trial Board, rejected appointment to a
position on the union's executive board, saying he had an excellent chance to enter the relief
band field.
On the 22d of February the hotel typed a termination notice to Short, but did not mail it.
Then on the 28th Elias said he knew all the musicians in the Short band were going with him
and that he had been offered the hotel job. On that date the hotel mailed the previously typed
termination notice to Short, who received it on March 1. On the same date he received the
termination notice from his entire band. The contractual relationships between Short and his
band members and Short and the hotel were terminable at will, provided certain notice was
given. It is not disputed that this provision of the contracts was performed. On that day Short
was informed by the stage manager of the hotel that his entire band was staying (under Elias)
and that the union had said it was okay.
Short still had contractual obligations with four clubs and it appeared that these would be
in jeopardy if he failed to provide adequate music. Therefore on March 17, 1961, Short asked
the union to waive the rules and permit him to conduct the house bands at the other clubs for
one month, to enable him time to recruit a new band. The executive board of the union
refused permission. A similar request was made on the 14th of April, which was also refused.
After denying the permission to Short, the union granted similar privileges to Elias on March
24 and later dates.
During this period, stating with the evening of February 28, Elias solicited all the hotel
jobs. While the orchestra was still employed by Short, though a few days after their notice of
resignation, all the members that had decided to go with Elias had a "get-together
meeting" which was also attended by Elias.
after their notice of resignation, all the members that had decided to go with Elias had a
get-together meeting which was also attended by Elias. During this interval they also called
upon the officers of the union to ascertain whether they had violated the union's bylaws, as
charged, in accepting employment from Elias.
The plaintiff charges that the union acted out of actual malice, in an attempt to get him
because of previous disagreements between him and the union officers.
Alleging these facts, appellant sought a judgment against the Riviera, the union, and Elias,
charging them with an unlawful conspiracy, and alleging damage.
In the court below the learned district judge first denied the motion for summary judgment,
saying in part, after referring to the testimony of the officers of the union and their
unequivocal statements:
It is not enough to say that the Hotel Riviera Inc. had the right to discharge Benny Short.
This I feel is unequivocal. Pursuant to the contract it had that right. But if coupled with a bad
motive from the Union and the interference of Lewis Elias in the organization of a band
when other musicians were available and the fact that Lewis Elias was on the Trial Board of
a complaint against Benny Short, coupled with the fact that the Riviera Hotel did not enter
into a contract with Lewis Elias for the taking over of Benny Short's band until the 22nd day
of March 1961 gives rise to an implicationif coupled togetherthat the Plaintiff may be
entitled to relief. As dim as the hopes of the Plaintiff may be from the factual standpoint in
the Court's opinion, the Court feels that it is not called to pass upon the question of
controverted evidence even though the opportunity to prevail on the part of the Plaintiff may
be indeed negligible. It would be in the best interest, according to the rules of law, to let this
matter be decided by a jury rather than on a preliminary motion wherein the Court must of
necessity weigh some of the testimony. (Emphasis supplied.)
Thereafter the court granted a rehearing of the motion for summary judgment and granted
the same, saying in part: "The Union did what it had a right to do.
saying in part: The Union did what it had a right to do. And in spite of anything else, it could
have been done through hatred, ill-will, malice or anything else. They had a right to bring a
proceeding against Mr. Short. They had a right to try him in their tribunal. And he submitted
to that jurisdiction. He exhausted all his remedies there. Now, whether they hated him or
whether they didn't is wholly immaterial. They had a right to try him. [With regard to] the
other defendant, the Riviera Hotel as appears from all of the evidence that I can recall, a
situation arose during one of their shows where they were unhappy over the music situation.
The president of the corporation called on the union officials and asked them to come in and
counsel them. After that had been done the union officials stated that if rehearsals were
granted, a couple of extra weeks time, that they thought the plaintiff would then be able to
take care of the situation. The president of the hotel asked on a Saturday night to have the
services of a relief band leader. That request was denied. The by-laws of the Union hold that
they have a right to deny that request. Now, that too could have been done with ill will; it
could have been done for spite; it could have been done for any reason in the world. But still I
can't find where it is the basis for any law suit. Now, upon being rejected Mr. Goffstein of the
Hotel Riviera stated, Well, if I can't have my men and that's all there is to be to it, I will have
to terminate Mr. Short.' I can't for the life of me see, after reading all the authorities, after
going over all the factual situation again any reason that this situation should be prolonged
and therefore the motion for summary judgment on behalf of the defendants will be granted.
We are of the opinion that the court's first decision was right and its second decision
wrong. The second opinion eliminates all consideration of the element of malice, all
consideration of the interference of Lewis Elias in the organization of [Short's] band when
other musicians were available * * *, all consideration of the fact that the Riviera Hotel did
not enter into a contract for taking over of Benny Short's band until the 22d day of March,"
and all consideration of the fact that to grant a summary judgment it would have to pass
upon "the question of controverted evidence."
contract for taking over of Benny Short's band until the 22d day of March, and all
consideration of the fact that to grant a summary judgment it would have to pass upon the
question of controverted evidence. All these elements were recited as the grounds for the
first decision. They are still in the case, although ignored in the second decision.
It is true that in the discovery depositions witnesses categorically denied any concert with
others in the performance of the asserted acts constituting the conspiracy. As has been seen,
the Riviera had a complete legal right to cancel its contract with Short, upon giving the
required notice. The members of Short's orchestra had the complete legal right to terminate
their employment by him. The union had the right to interpret its regulations and bylaws and
to act in accordance therewith. Elias had the right to recruit a relief orchestra and accept
employment by the resort hotels. It cannot be said, however, that in the accomplishment of
these acts in concert and under any and all conditions as to intent, motive, and malice they
may not be held answerable in damages.
We have, then, to consider whether the denials contained in the discovery depositions,
although undenied and unanswered, must be given full factual approval in support of the
summary judgment. It has been almost unanimously determined that the contention that even
though nothing has been offered discrediting the honesty of such deponents, their testimony
must be accepted as true, and plaintiff's privilege of examining such deponents at a trial thus
foreclosed, is without merit. In Arnstein v. Porter, 2 Cir., 154 F.2d 464, 470, 471, the court
said: We agree that there are cases in which a trial would be farcical. * * * But where, as
here, credibility, including that of the defendant, is crucial, summary judgment becomes
improper and a trial indispensable. It will not do, in such a case, to say that, since the
plaintiff, in the matter presented by his affidavits, has offered nothing which discredits the
honesty of the defendant, the latter's deposition must be accepted as true.
true. We think that Rule 56 was not designed thus to foreclose plaintiff's privilege of
examining defendant at a trial, especially as to matters peculiarly within defendant's
knowledge. * * * We do not believe that, in a case in which the decision must turn on the
reliability of witnesses, the Supreme Court, by authorizing summary judgments, intended to
permit a trial by affidavits,' if either party objects. That procedure which, so the historians
tell us, began to be outmoded at common law in the 16th century, would, if now revived,
often favor unduly the party with the more ingenious and better paid lawyer. Grave injustice
might easily result.
In United States v. General Ry. Signal Co. (W.D.N.Y. 1952), 110 F.Supp. 422, 423-425,
the court said: Plaintiff has to rely upon its discovery from whatever source it may come for
its cause of action for conspiracy to monopolize trade in violation of the Sherman Act.
Generally, in anti-trust violations, the only source of evidence open to the plaintiff must come
from the defendants, and from their acts, conduct, speech, writings and documents. * * *
Movant asserts that there is no dispute as to the evidentiary facts and that the only inference
which can be drawn by the Court from the facts is that movant has never been a party to any
conspiracy and is entitled to summary judgment in its favor. Despite such contention by
movant, the affidavits and briefs filed and the oral arguments of plaintiff and movant are
replete with allegations, statements and discussion to the contrary. * * * The interest and
credibility of those witnesses should be tested by cross-examination. * * * Movant has the
burden of demonstrating clearly that there is no genuine issue of a material fact to be
determined. Hoffman v. Partridge, 84 U.S.App.D.C. 224, 172 F.2d 275. * * * The various
agreements between the defendants, their correspondence and notations found in their files,
copies of many of them being attached to the McHugh affidavit should be explained by the
authors, at least, and perhaps, by the officers and agents of the parties who could reap any
benefit where such persons have knowledge of the facts and the rules of evidence are
observed.
In MacDonald v. Du Maurier (S.D.N.Y. 1946), 75 F.Supp. 653, 654, the court said: It
does not follow from the fact that there is no direct evidence that Du Maurier heard of or read
the plaintiff's works that the motion for summary judgment should be granted. Arnstein v.
Porter, 2 Cir., 154 F.2d 464. Although Du Maurier has denied that she ever saw or heard of or
had access to plaintiff's copyrighted works before the institution of this action, she is an
interested witness. * * * It is for the triers of the facts to determine how much of her
testimony, if any, is to be accepted or rejected.
In Colby v. Klune, 2 Cir., 178 F.2d 872, the court said: We have in this case one more
regrettable instance of an effort to save time by an improper reversion to trial by affidavit,'
improper because there is involved an issue of fact, turning on credibility. Trial on oral
testimony, with the opportunity to examine and cross-examine witnesses in open court, has
often been acclaimed as one of the persistent, distinctive, and most valuable features of the
common-law system. For only in such a trial can the trier of the facts (trial judge or jury)
observe the witnesses' demeanor; and that demeanorabsent, of course, when trial is by
affidavit or depositionis recognized as an important clue to witness' credibility. When,
then, as here, the ascertainment (as near as may be) of the facts of a case turns on credibility,
a triable issue of fact exists, and the granting of a summary judgment is error.* * *
Particularly where, as here, the facts are peculiarly in the knowledge of defendants or their
witnesses, should the plaintiff have the opportunity to impeach them at trial; and their
demeanor may be the most effective impeachment. Indeed, it has been said that a witness'
demeanor is a kind of real evidence'; obviously such real evidence' cannot be included in
affidavits.
In Johnson Farm Equipment Company v. Cook, 8 Cir., 230 F.2d 119, the first headnote
reads: A court is not at liberty to engage in a credibility evaluation for the purpose of a
summary judgment.
In United States v. United Marketing Association, 8 Cir., 291 F.2d 851, the first headnote
reads: Summary judgment should not be granted if there remains a genuine issue of
material fact, and credibility of witnesses or of parties may be such genuine issue.
genuine issue of material fact, and credibility of witnesses or of parties may be such genuine
issue. Fed. Rules Civ.Proc. rule 56, 28 U.S.C.A.
In Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568, 573, the court said: In cases
of this kind where no single factor controls the equation, and the court is necessarily required
to resolve the question of alleged intent in arriving at its judgment, we are of the opinion that
justice can best be served by a trial of the question on its merits. Scores of cases are in
accord with these views.
[Headnote 2]
The rule is of course well recognized that in deciding the propriety of a summary judgment
all evidence favorable to the party against whom such summary judgment was rendered will
be accepted as true. Franktown v. Marlette, 77 Nev. 348, 364 P.2d 1069; Parman v.
Petricciani, 70 Nev. 427, 272 P.2d 492.
Rule 56 authorizes summary judgment only where the moving party is entitled to
judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue
remains for trial, and that the purpose of the rule is not to cut litigants off from their right of
trial by jury if they really have issues to try. Sartor v. Arkansas Gas Corp., 321 U.S. 620, 64
S.Ct. 724, 88 L.Ed. 967. In McColl v. Scherer, 73 Nev. 226, 231-232, 315 P.2d 807, we for
the second time approved the language of a federal case to the effect that the trial judge
should exercise great care in granting motions for summary judgment, and held that a litigant
has a right to trial where there is the slightest doubt as to the facts. In 6 Moore, Federal
Practice, 2070, it is said that in such motions the trial court should not pass upon the
credibility of opposing affidavits, unless the evidence tendered by them is too incredible to be
accepted by reasonable minds. And the burden of establishing the lack of a triable issue of
fact is upon the moving party. 6 Moore, Federal Practice, 2070.
Opposing his appeal from the summary judgment in favor of respondents, respondents rely
upon the theory, in addition to their assertion that there was no genuine factual issue to
determine, that the three respondents each did only that which it was entitled to do; that
these were all disassociated, lawful acts, not accomplished in concert by any two or more
of respondents and were not actionable.
factual issue to determine, that the three respondents each did only that which it was entitled
to do; that these were all disassociated, lawful acts, not accomplished in concert by any two
or more of respondents and were not actionable.
Although respondents were represented by separate counsel and filed separate briefs, such
in the main was the purport of each respondent's answering brief.
Since respondents also support the summary judgment by their contention that the
complaint does not state a claim upon which relief can be granted, and since this is closely
connected with the contention that no material issues of fact remained to be tried, it seems
advisable to pass on this issue; this, despite the fact that our holding that the summary
judgment was error because factual issues remained would in itself require a remand for trial.
Respondents assert that because the Riviera had a contractual right to terminate its contract
with Short, and Short's musicians had a like right to terminate their employment with him,
and Elias had a legal right to recruit a relief orchestra, and the union had a right to
promulgate, interpret, and act under its bylaws, their exercise of these lawful rights in concert
could not become for this reason unlawful. The authorities are not entirely in harmony on the
question, and the facts vary greatly in the several instances in which the rule thus relied upon
has been applied. Further confusion results from the language used by the courts and the text
writers in discussing the same.
Respondents quote 11 Am.Jur. 578, Conspiracy 46, as follows: It has been asserted that
a conspiracy cannot be made the subject of a civil action unless something is done which
without the conspiracy would give a right of action. Moreover, in a considerable number of
decisions the principle is broadly stated that where damages result from an act which if done
by one alone would not afford a ground of action, a like act will not be rendered actionable
simply because done by several in pursuance of an agreement. The number who unite to do
an act cannot change its character from lawful to unlawful.
They also cite a number of cases in support of such statement. However, the text referred
to proceeds immediately as follows: A more reasonable view, however, is that where an act
done by an individual, though harmful to another, is not actionable because justified by his
rights, yet the same act becomes actionable when committed in pursuance of a combination
of persons actuated by malicious motives and not having the same justification as the
individual. Virtually the same statement is found in 15 C.J.S. 1003, Conspiracy 8.
The United States Supreme Court has thus stated the rule: An act lawful when done by
one may become wrongful when done by many acting in concert, taking on the form of a
conspiracy which may be prohibited if the result be hurtful to the public or to the individual
against whom the concerted action is directed. Fed. Trade Comm. v. Raymond Co., 263 U.S.
565, 574, 44 S.Ct. 162, 164, 68 L.Ed. 448; Grenada Lumber Co. v. Mississippi, 217 U.S. 433,
440, 30 S.Ct. 535, 54 L.Ed. 826; Bedford Co. v. Stone Cutters Assn., 274 U.S. 37, 54, 47
S.Ct. 522, 71 L.Ed. 916.
It is settled that an act lawful in an individual may be the subject of civil conspiracy
when done in concert, provided it is done with a direct intention to injure another, or when,
although done to benefit the conspirators, its natural and necessary consequence is the
prejudice of the public or the oppression of individuals.' A. T. Stearns Lumber Co. v.
Howlett, 260 Mass. 45, 157 N.E. 82, 52 A.L.R. 1125.
* * * persons have a right to combine together for the purpose of promoting their
individual welfare in any legitimate way, but where the purpose of the organization is to
inflict injury on another, and injury results, a wrong is committed upon such other; and this is
so notwithstanding such purpose, if formed and executed by an individual, would not be
actionable. Hawarden v. Youghiogheny & L. Coal Co., 111 Wis. 545, 87 N.W. 472, 474, 55
L.R.A. 828.
* * * it is fallacious to say that an act which is lawful can never become unlawful, and
equally fallacious to say that, though it is lawful for a person to refuse to sell to another, it is
also lawful for the same person in combination with others to likewise refuse to sell when
such refusal forms part of a scheme * * * and is not the bona fide exercise of their right to
refuse to sell."
combination with others to likewise refuse to sell when such refusal forms part of a scheme *
* * and is not the bona fide exercise of their right to refuse to sell. Klingel's Pharmacy v.
Sharp & Dohme, 104 Md. 218, 64 A. 1029, 1032, 7 L.R.A., N.S., 976.
[Headnote 3]
When an act done by an individual is not actionable because justified by his rights, though
harmful to another, such act becomes actionable when done in pursuance of combination of
persons actuated by malicious motives and not having same justification as the individual.
Clark v. Sloan, 169 Okl. 347, 37 P.2d 263; Starmer v. Mid-West Chevrolet Corporation, 175
Okl. 160, 51 P.2d 786. Accord: Deon v. Kirby Lumber Co., 162 La. 671, 111 So. 55, 52
A.L.R. 1023; Ertz v. Produce Exchange Co., 79 Minn. 140, 81 N.W. 737, 48 L.R.A. 90;
Brown v. Jacobs Pharmacy Co., 115 Ga. 429, 41 S.E. 553, 57 L.R.A. 547; Rosenblum v.
Rosenblum, 320 Pa. 103, 181 A. 583; St. Luke's Hospital v. Industrial Commission, 142
Colo. 28, 349 P.2d 995; Texas Public Utilities Corporation v. Edwards, 99 S.W.2d 420
(Tex.Civ.App.); Ingo v. Kock, 2 Cir., 127 F.2d 667; Pfoh v. Whitney, 43 Ohio App. 417, 62
N.E.2d 744; Bankers' Fire & Marine Ins. Co. v. Sloss, 229 Ala. 26, 155 So. 371; Prosser,
Torts (2d ed.) 731, 732. See 11 Harvard Law Review 449, 457.
Many other cases could be cited. The great weight of authority is in support of the rule last
discussed and we accept the same as the correct one.
[Headnote 4]
Respondents place great reliance on Carlton v. Manuel, 64 Nev. 570, 187 P.2d 558. We
think the case distinguishable, although some of the language used, a large part of it dictum,
would seem to support the minority rule first above discussed. Carlton, owner of a laundry
route collected and delivered laundry for Manuel on a commission basis. His relationship
with Manuel was that of an independent contractor. There was no continuing contractual
relationship. Manuel, operating the IXL Laundry, and all other laundries in Reno, reduced
the commission of all laundry drivers.
Laundry, and all other laundries in Reno, reduced the commission of all laundry drivers.
Plaintiff alleged a conspiracy among the laundries to reduce the commission of the route men,
including Carlton. The case was decided under the theory of a monopoly of the laundry
business by all the Reno laundries, and the plaintiff was denied relief because neither by
statute in this state nor under the common law was a monopoly unlawful. The court observed
that the legislature of the State of Nevada had never deemed it advisable to enact any statute
governing matters pertaining to monopolies, combinations, or restraints of trade, and
consequently, in arriving at a determination of this matter, we are obliged of necessity to rely
solely upon the principles of the common law pertaining thereto. The court then discussed at
length the common-law doctrine, and rejected cases arising out of antitrust statutes, which
were held to be but declaratory of the common law. In the course of his opinion Eather, C. J.,
speaking for the court, said in approving the trial judge's order rejecting testimony as to a
conspiracy: If the testimony had indicated that a contractual relationship existed between
appellant and respondent which continued for a specified term, and if said testimony had
indicated that a combination or conspiracy was entered into for the purpose of destroying said
contractual right, appellant's offered testimony with reference to the existence of a conspiracy
might have been material. It would seem therefore that Carlton v. Manuel did not bind the
court to adopt the minority rule here relied upon. Horsey, J., in concurring with reluctance,
confines himself entirely to the question of monopoly and regretfully concurs because neither
by statute nor under the common law was the laundry owner's act unlawful, though done in
concert with all other laundry owners in the city who thus exercised a complete monopoly.
Carlton v. Manuel has an entirely different background from the present case. In Carlton's
case all the laundries in Reno had reduced the commissions of all the laundry drivers. This
indicates an economic situation in which the laundries were, by reducing the commissions,
increasing the net proceeds of their business.
commissions, increasing the net proceeds of their business. They were not by such action
singling out a particular driver. Nor did they have a contract with the drivers.
The judgment is reversed with costs, and the cause remanded to the district court for
further proceedings in accordance with this opinion.
McNamee, J., and Waters, D. J., concur.
Justice Gordon Thompson being disqualified, the Governor commissioned Hon. Richard
L. Waters, Jr., Judge of the First Judicial District, to sit in his place.
____________
79 Nev. 108, 108 (1963) Hoff v. District Court
JAY R. HOFF, JR., Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Clark, and the HONORABLE GEORGE
MARSHALL, District Judge of Department Four Thereof, Respondents.
No. 4604
March 4, 1963 378 P.2d 977
Original petition in certiorari.
Petitioner brought a proceeding in Supreme Court to test jurisdiction of district court judge
in criminal proceeding. The Supreme Court, Badt, C. J., held that the judge was disqualified
by statute where the district attorney was his son and that proceedings had and orders
directing that plea of not guilty be entered for the petitioner and setting bail and date for trial
of proceeding before the judge of another department of the court were void.
Proceedings on arraignment vacated.
Michael J. Wendell, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Edward G. Marshall, District Attorney of Clark
County, and Charles L. Garner, Deputy District Attorney of Clark County, for Respondents.
1. Judges.
District court judge was disqualified by statute to preside in criminal proceeding where district attorney
was judge's son, and proceedings had and orders directing that plea of not guilty be entered for defendant
and setting bail and date of trial before judge of another department of court were void. NRS 1.230,
subds. 2(d), 7, 8.
2. Judges.
Actions of district judge disqualified by statute are void and not merely voidable. NRS 1.230, subds.
2(d), 7, 8.
3. Judges.
Statute disqualifying judge when he is related to attorney for either of parties by consanguinity or affinity
within third degree applies in criminal cases as well as in civil cases. NRS 1.230, subds. 2(d), 7, 8.
OPINION
This is an original proceeding in certiorari which tests the jurisdiction of the respondent
judge of the respondent district court to make sundry orders on arraignment of the petitioner
in a criminal proceeding against him in said court, over the objections of petitioner, on the
ground that the respondent judge, Honorable George Marshall, was the father of Edward G.
Marshall, district attorney of Clark County, attorney for the State of Nevada.
[Headnote 1]
We hold that the respondent judge was disqualified under the provisions of our applicable
statute, and that the proceedings had and the orders made at petitioner's arraignment were null
and void.
On January 16, 1963, petitioner, represented by attorney Michael J. Wendell, appeared
before District Judge George Marshall for a criminal arraignment. Edward G. Marshall, the
son of Judge Marshall, appeared for the state as district attorney. Wendell advised petitioner
to stand mute and objected to any proceedings conducted in the matter by Judge Marshall on
the ground that he was disqualified by law from acting in any matter in which his son
represented a party.
Petitioner's objection was overruled. Judge Marshall directed that a plea of not guilty be
entered for the defendant, set bail at $500 cash or $1,000 property bond, and thereupon
set the trial of the action for February 11, 1963, before Honorable David Zenoff, judge of
another department of said court.
defendant, set bail at $500 cash or $1,000 property bond, and thereupon set the trial of the
action for February 11, 1963, before Honorable David Zenoff, judge of another department of
said court.
The governing section is NRS 1.230, subsections 2(d), 7, and 8, reading as follows:
2. A judge shall not act as such in any action or proceeding when implied bias exists in
any of the following respects:
* * * * *
(d) When he is related to an attorney or counselor for either of the parties by
consanguinity or affinity within the third degree.
* * * * *

7. This section shall not apply to the arrangement of the calendar or the regulation of the
order of business.
8. Paragraph (d) of subsection 2 shall not apply to the presentation of ex parte or
uncontested matters, except in fixing fees for attorneys related within the degree of
consanguinity or affinity therein specified.
[Headnote 2]
That the actions of a district judge, disqualified by statute, are not voidable merely, but
void, has long been the rule in this state. Frevert v. Swift, 19 Nev. 363, 11 P. 273, decided in
1886.
In support of the jurisdiction of the judge to preside at the arraignment and make the
orders complained of, respondents cite many cases dealing with disqualification of judges
under statutes disqualifying a judge because of relationship to a party, or because of
relationship to a person interested in the proceedings. We need not deal with cases under such
statutes.
No disqualification existed under the common law by reason of the judge's relationship to
an attorney. Frevert v. Swift, supra.
Annotation 11 A. L. R. 1325, 1328, deals with the statutes of the few states that disqualify
for relationship to the attorney, and refers, among other cases, to People v. Ebey, 6 Cal.App.
769, 93 P. 379, 381. Except for one point hereinafter discussed, that case is on all fours with
the case at bar.
fours with the case at bar. There Ebey was arraigned before the superior judge, and upon his
refusal to plead to the information the clerk was ordered to enter a plea of not guilty for
him. The judge of said court then ordered said cause to be set for trial, and a jury to be drawn
to try the issues raised therein, and said judge presided during said drawing. All these acts and
rulings of the court in relation thereto were objected to by Ebey on the ground that said judge
was related to the attorney for the defendant by consanguinity within the third degree and
therefore disqualified to act in said cause. Proof of the relationship was made. (Here it is
admitted.) Ebey was tried before another superior judge, convicted, and raised the
disqualification in his appeal to the district court of appeals. In reversing, that court stated:
The arraignment must be made and the plea entered in open court, and the time that may be
allowed for either rests in the legal discretion of the court, that is, the judge. In the case at bar
there was a qualified refusal to enter the plea, and the disqualified judge passed upon the
question whether or not the circumstances set forth in the record justified the defendant in his
refusal to plead. In all these matters the judge clearly acted as such,' and no reasonable
construction can include the acts complained of within the terms, arrangement of the
calendar,' or regulation of the order of business.' In our opinion, Judge Densmore * * *
should not have presided at the arraignment, the hearing of the plea, or other preliminary
steps of the prosecution of the case, beyond those necessary to regulate the order of business
and arrange the calendar. Hearing was denied by the supreme court, which said: But it
appears that the disqualified judge presided at the arraignment of defendant, and ordered the
entry of a plea therein. We agree with the district court of appeal that he was disqualified to
act in this matter, and the portion of the opinion that related thereto is approved.
Respondents however call attention to the fact that the California statute under which Ebey
was decided did not contain the provisions of subsection 8 above quoted to the effect that the
disqualification shall not apply to the presentation of ex parte or uncontested matters * *
*."
apply to the presentation of ex parte or uncontested matters * * *. We reject the contention
that the orders made at the arraignment were either ex parte or uncontested. In its general
sense ex parte means that an application is made by one party to a proceeding in the absence
of the other. Respondents suggest that no statute of this state requires the attendance of the
district attorney at an arraignment. Be this as it may, the district attorney was the attorney for
the state and appeared at the arraignment as such. The district attorney, pursuant to
commitment by the committing magistrate holding Hoff to answer, filed an information. Both
the court minutes and the reporter's transcript of the arraignment show Edward G. Marshall
(son of the honorable district judge) as representing the state. The transcript shows the
following: By the Court: Let the record show that the defendant has refused to plead and that
thereupon, the court will enter a plea of not guilty for him. The court then questioned the
defendant as to how long he had been in the jurisdiction, whether he had ever been convicted
of a felony, and upon being informed that he had, fixed his bail at $500. The court entered a
further order appointing Mr. Wendell attorney for the defendant, not only in the case before
the court but for the purpose of seeking a writ of certiorari to test the court's jurisdiction, and
stated that his order would include necessary travel expense to the state capital for the
purpose of such proceeding.
The foregoing also answers the contention of the respondents that the arraignment was not
a contested matter. Objection was made to all orders of the court, except the order appointing
counsel.
It was further said in the Ebey case: A sound policy seems to demand that, independent of
the rights of the parties to the action, the judicial tribunals appointed by law to administer
justice should be preserved from discredit by a broad and liberal construction of the statute to
the end of securing a judgment untainted with bias or interest. Courts should be slow to
discover subtle and refined distinctions for indulging a doubtful jurisdiction where the liberty
of a citizen is at stake.
The same policy has been announced in Nevada. In McCormick v. District Court, 67 Nev.
318, 331, 218 P.2d 939, 945, we stated: The legislature has thus declared the public policy
of the state, not so much for the protection of an individual litigant, as for the preservation of
the respect and high regard the public has always maintained for the courts.
For a full discussion of the subject Relation to attorney as disqualifying judge, see
Annot., 50 A.L.R.2d 143.
[Headnote 3]
Respondents also contend that the disqualifying statute does not apply to district attorneys
in criminal cases. However, no authorities in point are cited, and we must reject the
contention.
As under the statute quoted, the respondent judge was disqualified from presiding at the
petitioner's arraignment and as his orders at the arraignment were accordingly void, the same
are hereby vacated.
____________
79 Nev. 113, 113 (1963) Urban Renewal Agency v. Iacometti
URBAN RENEWAL AGENCY OF THE CITY OF RENO, NEVADA, a Public Corporation,
The CITY OF RENO, a Municipal Corporation, Et Al., Appellants, v. JOHN IACOMETTI
and MARIA ANGELINA IACOMETTI, His Wife, Et Al., Respondents.
No. 4555
March 11, 1963 379 P.2d 466
Appeal from judgment of the Second Judicial District Court, Washoe County; Clel
Georgetta, Judge.
Proceeding on appeal from a judgment of the trial court which had dismissed multiple
condemnation actions instituted by city urban renewal agency. The Supreme Court,
Thompson, J., held that, in reviewing the city council's determination that urban area was a
combination of slum and blight and that urban renewal plan for its rehabilitation and
development should be adopted, court could not conduct trial de novo and that council's
action was not an abuse of discretion.
plan for its rehabilitation and development should be adopted, court could not conduct trial de
novo and that council's action was not an abuse of discretion.
Reversed and remanded for a limited trial.
[Rehearing denied April 3, 1963]
Cooke & Roberts, of Reno; Roy Lee Torvinen, City Attorney, City of Reno, and Richard
Breitwieser, Assistant City Attorney, for Appellants.
Streeter, Sala & Richards; Lohse & Fry; John S. Halley; Guild, Busey & Guild and
Howard Cunningham; Emile J. Gezelin; Sidney W. Robinson; all of Reno, for Respondents.
1. Municipal Corporation.
In reviewing determination by city council that urban area was a combination of slum and blight within
Urban Renewal Law and that urban renewal plan for its rehabilitation and redevelopment should be
adopted, court could not conduct a trial de novo and was limited to reviewing the record of the information
presented to the council to determine if the council had acted arbitrarily and capriciously or had abused its
discretion. NRS 279.010-279.380.
2. Administrative Law and Procedure.
Courts should sustain discretionary action of governmental bodies made after investigation and inquiry,
absent an abuse thereof, to the same extent that reviewing court upholds discretionary action of trial court.
3. Eminent Domain.
Involvement of power of eminent domain does not serve to enlarge scope of the judicial review of actions
by governmental bodies in urban renewal cases. NRS 279.010-279.380.
4. Eminent Domain.
Where validity of an urban renewal project is questioned by those opposing condemnation of some
included parcels, the judicial inquiry is broader in scope than the particular controversy before the court,
and a consideration of the complete plan, as distinguished from the isolated parcels sought to be
condemned, is the focal point of review. NRS 279.010-279.380.
Adoption by city council of urban renewal plan for a 30-year program to eliminate density and
overcrowding of structures, detrimental mixed use of land, and narrow streets in a 99.10 acre tract
containing substandard buildings was not arbitrary and capricious and did not constitute an abuse of
discretion. NRS 279.010-279.380.
Fact that city had purported to create its urban renewal agency prior to effective date of state Urban
Renewal Law, which itself created in each municipality a public body corporate and politic to be known as
the Urban Renewal Agency of the municipality, did not render city agency's subsequent acts invalid. NRS
279.010-279.380.
7. Eminent Domain.
Fact that Urban Renewal Law authorizes the taking of private property from one individual through the
exercise of power of eminent domain and transfer of such property to another individual does not render
law unconstitutional as authorizing the taking of private property for private as distinguished from public
purposes through the exercise of eminent domain. NRS 279.010-279.380.
8. Eminent Domain.
Possessory use by the public is not an indispensable prerequisite to the lawful exercise of the power of
eminent domain.
9. Statutes.
Urban Renewal Law is not unconstitutional for failure to sufficiently define slum and blight in view
of fact that specific degrees of deterioration, precise percentage of obsolescence, and mathematical
measurements of extent of overcrowding which produce conditions at which legislature was aimed are
highly variable. NRS 279.050, 279.190.
OPINION
This case involves the Urban Renewal Law, NRS 279.010-279.380. It is here upon appeal
from a judgment of the district court which dismissed, after trial, multiple condemnation
actions instituted by the Urban Renewal Agency of the City of Reno.
In broad outline the Urban Renewal Law concerns slum and blighted areas which
were found to be a menace to public health, safety, morals and welfare, contribute to the
spread of disease and crime, impose onerous municipal burdens which decrease the tax base
and reduce tax revenues, impair the sound growth of municipalities, retard the provision for
housing accommodations and aggravate traffic problems. The elimination of these areas by
acquisition, clearance and disposition, or their reclamation by conservation and
rehabilitation was declared to be a public use essential to the public interest.
disposition, or their reclamation by conservation and rehabilitation was declared to be a
public use essential to the public interest.
In the fall of 1956 the Reno city council appropriated $9,000 for use by the Regional
Planning Commission in making a preliminary survey of the City of Reno to ascertain if there
existed an area, or areas, which would qualify as an urban renewal project area under federal
law. The survey was initially directed to an area of about 400 acres located in the northeast
section of the city.
The results of the survey conducted by the Regional Planning Commission were discussed
with the city council. In February 1957 the council, by resolution (which was re-adopted June
10, 1957) declared the area surveyed to be an area of slum and blight and appropriate for an
urban renewal project, and authorized the submission of an application to the Federal
Housing and Home Finance Agency (HHFA) for an advance of funds for survey and plans for
such project. Concurrently the city urged the state legislature to enact urban renewal
legislation. The legislature did so, approving the Urban Renewal Law on March 29, 1957.
The law did not prescribe an effective date, and thus became effective July 1, 1957. NRS
218.530.
On June 10, 1957 (after the enactment of the Urban Renewal Law, but before its effective
date) the city council created an Urban Renewal Agency (URA). On July 8, 1957, after the
effective date of the act, the council appointed the first board of commissioners of the URA,
(NRS 279.370), and appropriated money for its use. Federal funds for survey and planning
were received and a detailed study undertaken of a project area comprising about 99.10 acres.
1
That study, to which we shall later make more detailed reference, resulted in the Final
Project Report, Northeast Project Area, Project No. Nevada R-2, and was submitted to the
city council at a public hearing on September 28, 1959. NRS 279.270(3). The council
approved the report, found the project area to be a combination of slum and blight, and
adopted an urban renewal plan for its rehabilitation and redevelopment.
____________________

1
The HHFA believed the 400-acre area, for which survey funds were originally requested, too ambitious.
project area to be a combination of slum and blight, and adopted an urban renewal plan for its
rehabilitation and redevelopment. Thereafter, the federal government committed itself to the
loan and grant of large sums of money to be used for land acquisition in the project area.
Through December 31, 1960, $646,392.74 had been spent on the project. Since that date, and
prior to the trial of this case, further sums were expended in the acquisition of parcels and the
clearance of structures. The URA net project cost estimate is approximately $1,824,350 of
which the federal government is expected to provide $1,216,233.32 in the form of a capital
grant, leaving a balance of $608,116.68 to be provided by local grants-in-aid.
The assigned errors and extensive briefing require our determination of the following basic
problems. First, the scope of review by the trial court, i.e., in determining whether the project
area was an area of slum and blight within the meaning of the Urban Renewal Law, is that
court limited to a consideration of the information presented to the city council as of
September 28, 1959 (when that body approved the project report and found the area to
qualify), or may it conduct, in effect, a trial de novo in making such determination? The URA
contends that the trial court was limited in its judicial review of the city council's action to the
sole question of whether that body abused its discretion, or acted arbitrarily, or capriciously,
or in bad faith, in the light of the information presented to it. On the other hand, the
respondent property owners insist that the trial de novo conducted by the court was within its
province, and that the findings made by that court upon conflicting evidence may not be
disturbed by us. Second, whether the creation of the URA by the city council after enactment
of the Urban Renewal Law, but before its effective date, renders unlawful all actions of the
commissioners of that agency who were appointed after the effective date of the Urban
Renewal Law. Third, whether the Urban Renewal Law is constitutional.
2
[Headnotes 1, 2]
____________________

2
Many other points were separately briefed and argued. However, we believe that all of them are embraced
within the three basic questions mentioned.
[Headnotes 1, 2]
1. Scope of trial court review. The district court conducted a trial de novo. It made its
own determination as to whether a portion of the project area could qualify as either a
blighted area or a slum area within the Urban Renewal Law. It should not have done so. Its
function was limited to a review of the record of information presented to the city council
from the fall of 1956 to September 28, 1959 (the date of the public hearing at which the
council approved the project report and found the area to qualify). Nevada has recognized this
principle for years in varying circumstances. We have not distinguished between the scope of
trial court review of a formal hearing by a governmental body, Nevada Tax Commission v.
Hicks, 73 Nev. 115, 310 P.2d 852;
3
its review of such body's determination made after
investigation and a public hearing, McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268; and its
review of a governmental body's discretionary ruling made after investigation and inquiry, but
without a formal hearing or a public hearing, Douglas County Board of County
Commissioners v. Pederson, 78 Nev. 106, 369 P.2d 669. In each instance the court's inquiry
is limited to the record of information presented to the governmental body. The court's
purpose is to ascertain whether, upon such information, that body acted arbitrarily,
capriciously, and abused its discretion.
4
Thus, a trial court should sustain discretionary
action of a governmental body, absent an abuse thereof, to the same extent that an appellate
court upholds the discretionary action of a trial court. McKenzie v. Shelly, supra. In Nevada
Tax Commission v. Hicks, 73 Nev. 115, 123, 310 P.2d 852, 856, we said, inter alia, Trial de
novo, in effect, could relegate the commission hearing to a meaningless, formal,
preliminary and place upon the courts the full administrative burden of factual
determination."
____________________

3
A formal hearing in the sense of receiving the sworn testimony of witnesses in response to counsel
interrogation, reporting and transcribing the same.

4
In McKenzie v. Shelly, supra, and Douglas County Board of County Commissioners v. Pederson, supra, the
determination of the governmental body was ultimately sustained. On the other hand, in City of Henderson v.
Henderson Auto Wrecking, 77 Nev. 118, 359 P.2d 743 and Nevada Tax Commission v. Hicks, supra, its
decision was overruled. However, in each instance the scope and purpose of judicial review was the same.
hearing to a meaningless, formal, preliminary and place upon the courts the full
administrative burden of factual determination. It is primarily for this reason that the scope
of judicial review has been thus confined.
Indeed, the proper trial court function in the instant case is not dissimilar to the function of
this court where a review of action by a governmental body is sought by an original
proceeding here. Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158 (mandamus); Richardson v. Board
of Regents, 70 Nev. 347, 269 P.2d 265 (certiorari); Boswell v. Board of Medical Examiners,
72 Nev. 20, 293 P.2d 424 (prohibition); Van Heukelom v. Nevada State Board of
Chiropractic Examiners, 67 Nev. 649, 224 P.2d 313 (prohibition). In either instance, the
reviewing court focuses its attention upon the information presented to the governmental
body whose decision is questioned.
Though the scope of judicial review of action by a governmental body is limited in most
cases, the respondents suggest that no such limitation exists where the power of eminent
domain is employed. They argue that the issues of public use and necessity permit a full scale
judicial review without limitation or restriction of any nature, i.e., a trial de novo as to such
issues, thus requiring the trial court to decide whether areas of slum and blight exist, and a
public necessity obtains for their eradication, citing Offen v. City of Topeka, 186 Kan. 389,
350 P.2d 33; Hogue v. Port of Seattle, 54 Wash.2d 799, 341 P.2d 171; Bristol Redevelopment
& Housing Authority v. Denton, 198 Va. 171, 93 S.E.2d 288. The scope of review was not an
issue in Offen, for there the appeal was from an order overruling the defendants' demurrer to
plaintiffs' complaint. In Hogue the Washington constitution permitted a de novo trial on the
question of public use in a condemnation suit. The constitution of Nevada does not contain a
similar provision. The Bristol case does support the respondents' position, but is contra to the
weight of authority.
The Nevada legislature declared that the powers conferred by the Urban Renewal Law are
for public uses and purposes for which public money may be expended and the power of
eminent domain and police power exercised, and that the necessity in the public interest
for the provisions herein enacted is hereby declared as a matter of legislative
determination."
and the power of eminent domain and police power exercised, and that the necessity in the
public interest for the provisions herein enacted is hereby declared as a matter of legislative
determination. NRS 279.230(3). In Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99
L.Ed. 27, 37, the constitutionality of the District of Columbia Redevelopment Act was before
the court. That act proposed the redevelopment of substandard housing and blighted areas,
and delegated to an agency the power to acquire property by eminent domain and effect
redevelopment. A unanimous court held the act constitutional. With reference to the
legislative declaration of public purpose, use and necessity, the court said: Subject to
specific constitutional limitations, when the legislature has spoken, the public interest has
been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is
the main guardian of the public needs to be served by social legislation, whether it be
Congress legislating concerning the District of Columbia, [citations] or the States legislating
concerning local affairs. [citations] This principle admits of no exception merely because the
power of eminent domain is involved. The role of the judiciary in determining whether that
power is being exercised for a public purpose is an extremely narrow one. [citations].
Accord: People v. City of Chicago, 3 Ill.2d 539, 121 N.E.2d 791; Kaskel v. Impellitteri, 306
N.Y. 73, 115 N.E.2d 659; cases collected in Annot., 44 A.L.R.2d 1414.
[Headnote 3]
Involvement of the power of eminent domain does not, as respondents contend, serve to
enlarge the scope of judicial review of action by a governmental body in an urban renewal
case.
Indeed, the extremely narrow role of the courts in determining the issues of public use and
necessity in condemnation cases has long been recognized in Nevada. The 1876 case of
Dayton Mining Co. v. Seawell, 11 Nev. 394, recognized that, though the legislative
declaration of public use may not be final, a court must pay it proper deference and, if a doubt
exists, the legislative declaration shall prevail.
declaration shall prevail. In Goldfield Consolidated Mining Co. v. The Old Sandstorm Annex
Gold Mining Co., 38 Nev. 426, 438, 150 P. 313, 316, the court appears to have almost denied
judicial review of the public use issue, for it said: Public use is in every case a matter of
local policy. Similarly, with reference to the issue of necessity, in Schrader v. District Court,
58 Nev. 188, 195, 73 P.2d 493, 495, it is said: When the use is public, the necessity or
expediency of appropriating any particular property is not a subject of judicial cognizance.
However, the more recent case of Aeroville Corp. v. Lincoln Power District, 71 Nev. 320,
290 P.2d 970, does not deny judicial review of the issue of necessity, as did Schrader; rather,
it limits such review. In Aeroville, a condemnation suit, we held the expediency or necessity
for a particular public improvement (relocation of a power line) to be a political rather than a
judicial question, the determination of which was within the discretion of the agency to which
the legislature had delegated authority. The court there refused to overrule the agency
determination because its exercise of discretion was not shown to have been abused. In our
view the principle enunciated in Aeroville has application here. In deciding whether an area
of slum and blight existed, and a necessity for its elimination was present, the lower court
was limited to a review of the information presented to the city council to whom the
legislature had delegated the authority to make such determinations.
The record before us presents an anomaly. The district court, contrary to established law,
permitted a trial de novo. However, in doing so, it arbitrarily confined its consideration to
32.34 of the 99.10 acres included within the project area, thereby committing additional error.
The city council's finding of slum and blight blanketed the total area. The urban renewal
project which it approved embraced 99.10 acres, not 32.34. The eradication of slum and
blight in the clearance area (32.34 acres) was to be accomplished by acquisition, clearance
and disposition. As to the balance, the rehabilitation area (67.76 acres), conservation by
rehabilitation was planned.
by rehabilitation was planned. The URA and the city council evaluated the area as a whole.
The choice of area, its boundaries, the inclusion of particular parcels to complete an
integrated plan are all matters resting within the discretion of the agency and municipality in
which the legislature has vested that discretion. NRS 279.270; Berman v. Parker, supra;
Kaskel v. Impellitteri, supra; Annot., 44 A.L.R.2d 1414, 1439. Once it has been determined
that the designation of a particular project area is valid, the court should not consider the
taking or leaving of sound buildings within its periphery. As stated in Berman v. Parker, 348
U.S. 26, 35, 75 S.Ct. 98, 104, 99 L.Ed. 27, 39, Property may of course be taken for this
redevelopment which, standing by itself, is innocuous and unoffending.
5

[Headnote 4]
Where the validity of an urban renewal project is questioned by those opposing
condemnation of some included parcels, the judicial inquiry is much broader in scope than
the particular controversy before the court. The total project, as distinguished from the
isolated parcels sought to be condemned, is the focal point of review. A consideration of less
than the complete plan is not warranted.
With the governing principles of review in mind, we turn to consider the information upon
which the city council approved and authorized an urban renewal plan for the 99.10 acre
project area in question.
[Headnote 5]
The plan presented to the city council by the URA is comprehensive in scope. Its duration
is 30 years. It contemplates the elimination of the density and overcrowding of structures
within the "clearance" area; the eradication of detrimental mixed land uses, narrow
congested streets and obsolete buildings not suitable for rehabilitation or conversion.
____________________

5
Though the respondents acknowledge the validity of the area as a whole concept, they argue that two
complete areas are involved here, a clearance area and a rehabilitation area. Hence, the trial court in limiting
its consideration to the clearance area did not violate the area as a whole concept. Without question, error
occurred, for the project area embraced both. NRS 279.210 permits clearance and rehabilitation to be included
within a single urban renewal plan.
contemplates the elimination of the density and overcrowding of structures within the
clearance area; the eradication of detrimental mixed land uses, narrow congested streets and
obsolete buildings not suitable for rehabilitation or conversion. Displaced families are to be
relocated. The properties to be acquired within the project area are to be disposed of for
re-use by private enterprise in accordance with the plan and relevant laws. Re-zoning, new
streets, sewers and storm drainage are included among its objectives. Approximately two
years of investigation, inquiry, surveying, mapping, photography, inspection and personal
contact preceded its preparation and submission to the city council. The services of multiple
agencies and personnel were utilized.
6
Their combined study reveals that within the
clearance area alone 60 percent of the buildings are substandard, because of age,
obsolescence, lack of adequate sanitation. Significant blighting environmental influences
within that area also obtain: improper setbacks, alley dwellings, narrow streets, misaligned
intersections, multiple family use of single residences, and the absence of parks and
playgrounds. Though the trial court harbored a different view as to whether 60 percent of the
buildings within the clearance area were substandard,
7
there is no dispute in the record as
to the additional blighting influences just mentioned. It is apparent to us that the trial court
simply preferred its opinion to that of the public officials, and substituted it accordingly.S
____________________

6
Regional Planning Commission, URA staff, University of Nevada sociology department, City of Reno
building inspector's office, FHA housing administration inspectors, Western Real Estate Research of Chicago,
Wilsey & Ham planning consultants, Housing and Home Finance Administration.

7
The court in Kaskel v. Impellitteri, 306 N. Y. 73, 115 N.E.2d 659, 661, commented, Of course, none of the
buildings are as noisome or dilapidated as those described in Dickens' novels or Thomas Burke's Limehouse'
stories of the London slums of other days, but there is ample in this record to justify the determination of the city
planning commission that a substantial part of the area is substandard and insanitary' by modern tests, and that
the whole 6.32 acres, taken together, may reasonably be considered a single area' for clearance and
redevelopment purposes.
simply preferred its opinion to that of the public officials, and substituted it accordingly.
8

We conclude: first, that judicial review in this case is limited to a consideration of the
information presented to the city council from the fall of 1956 to September 28, 1959 (the
date of the municipality's approval of project report and its finding that the project area
qualified under the Urban Renewal Law); second, that the qualification of that area under the
Urban Renewal Law must be evaluated as a whole; third, that the record of information
presented to the city council contains substantial evidence upon which that body properly
could find the project area in question to qualify under the Urban Renewal Law; and that its
approval of the proposed plan was not arbitrary and capricious and did not constitute an abuse
of discretion.
[Headnote 6]
2. The existence of the URA. The lawful existence of the URA was never challenged in the
court below. No issue was presented for determination in this regard.
9
Yet, that court
decided that the agency was not lawfully created and that all of its activities were of no
consequence and void.
____________________

8
Respondents contend that the city council, in violation of NRS 279.360(2), delegated to the URA the power
to determine whether the project area was a slum and blighted area. This contention is not sound. The record
shows that the council made such determination, based upon information presented to it by the URA and other
investigative agencies. Indeed, the council's original finding of slum and blight occurred in February 1957
following a preliminary survey by the regional planning commission. That finding was reaffirmed by the council
on June 10, 1957. Final approval of the urban renewal plan was on September 28, 1959, at which time the
council again found the project area to be an area of slum and blight. Throughout the entire period the council
was informed of the results of the investigations being conducted. Some of the councilmen had personal
knowledge of the project area.

9
It is doubtful whether the respondents would have standing to raise the question assuming the de facto
corporate existence of the URA. The existence of a public de facto corporation can be challenged only by the
state. Tulare Irrigation District v. Shepard, 185 U.S. 1, 22 S.Ct. 531, 46 L.Ed. 773; Shapleigh v. San Angelo,
167 U.S. 646, 17 S.Ct. 957, 42 L.Ed. 310; Rhyne, Municipal Law, p. 25.
not lawfully created and that all of its activities were of no consequence and void. In the
initial phase of this opinion we referred to the chronology. After legislative approval of the
Urban Renewal Law, but before its effective date, the city council on June 10, 1957, passed a
resolution purporting to create the URA. However, the commissioners to man the agency
were not appointed until July 8, 1957, after the Urban Renewal Law was in effect. The lower
court seized upon the anticipatory resolution of June 10 and pronounced it to be totally
ineffective to create the URA.
The URA was created by legislative act, and not by city council resolution. NRS 279.370
states: There is hereby created in each municipality a public body corporate and politic to be
known as the urban renewal agency of the municipality * * * . Thus, on July 1, 1957, the
effective date of the law, the structure of the public corporation was in existence by virtue of
the law itself. There remained only the task of implementation by the appointment of
commissioners. This was accomplished by the city council on July 8, 1957. The URA
thereafter functioned as a public corporation. It has entered into numerous contracts,
supervised and participated in all activities concerned with the project area, acquired many
parcels of property, and spent in excess of one million dollars in the process. We find no
merit in the lower court's conclusion that the URA never came into being.
3. Constitutionality. The district court did not hold the Urban Renewal Law
unconstitutional. Rather, by dictum, it declared the contrary. On appeal the issue of
constitutionality was raised, briefed and argued. In view of our disagreement with the lower
court on the questions already discussed, we must dispose of this issue as well.
[Headnotes 7, 8]
The thrust of the respondents' contention is that Art. 1, 1 and 8 of the Nevada
Constitution are violated because the Urban Renewal Law authorizes the taking of private
property from one individual and its transfer to another for private as distinguished from
public purposes.
because the Urban Renewal Law authorizes the taking of private property from one individual
and its transfer to another for private as distinguished from public purposes. The same
argument was presented to, and rejected by, the United States Supreme Court, with reference
to the federal constitution in Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 103, 99 L.Ed.
27, 38. The court there said, Once the object is within the authority of Congress, the right to
realize it through the exercise of eminent domain is clear. For the power of eminent domain is
merely the means to the end. [citations] Once the object is within the authority of Congress,
the means by which it will be attained is also for Congress to determine. Here one of the
means chosen is the use of private enterprise for redevelopment of the area. Appellants argue
that this makes the project a taking from one businessman for the benefit of another
businessman. But the means of executing the project are for Congress and Congress alone to
determine, once the public purpose has been established. [citations] The public end may be as
well or better service through an agency of private enterprise than through a department of
governmentor so the Congress might conclude. We cannot say that public ownership is the
sole method of promoting the public purposes of community redevelopment projects. We
adopt the same reasoning in answer to the respondents' argument that the Urban Renewal
Law violates the Nevada constitution. Possessory use by the public is not an indispensable
prerequisite to the lawful exercise of the power of eminent domain. People v. City of
Chicago, 3 Ill.2d 539, 121 N.E.2d 791. Case authority overwhelmingly supports this position.
Annot., 44 A.L.R.2d 1414.
[Headnote 9]
It is suggested that the statutory definitions of slum (NRS 279.190) and blight (NRS
279.050) do not sufficiently specify standards by which it can be found that a menace to
public health, safety, or morals exists.
sufficiently specify standards by which it can be found that a menace to public health, safety,
or morals exists. For want of such specific standards, the constitutionality of the Urban
Renewal Law is further challenged. We reject such argument. The blighting factors, and the
slum factors, which may in combination produce an area of slum and blight are listed.
Specific degrees of deterioration, precise percentage of obsolescence, and mathematical
measurements of the extent of over-crowding, etc., cannot be stated, for the combinations
which will produce the condition at which the legislation is aimed, are highly variable. In
view of the subject matter involved, it cannot be said that the provisions of the Urban
Renewal Law in this respect are so indefinite as to violate due process. Nor is it required (as
the trial court apparently assumed) that independent proof of detriment to public health,
safety or morals be made. Once it is found that an area of slum and blight exists, and such
finding rests upon evidence of substance, the consequent menace to public health, safety and
morals, follows as a matter of legislative determination. NRS 279.230(3); cf. Oliver v. City of
Clairton, 374 Pa. 333, 98 A.2d 47. We hold that the Urban Renewal Law does not violate any
constitutional provision.
4. Conclusion. The legislature acted within constitutional limits in enacting the Urban
Renewal Law. The statutory scheme has been followed. The renewal activities appear to have
been well coordinated. The plan recommended by the URA and adopted by the city council
has made, and proposes to make, reasonable use of available techniques, including city
planning, public housing, total clearance, conservation and rehabilitation. The rights of the
respondents will be constitutionally satisfied when they receive just compensation for their
properties. Accordingly, we reverse the judgment below, and remand for trial addressed to the
sole question of determining the value of {NRS 37.110) and just compensation for {Art.
determining the value of (NRS 37.110) and just compensation for (Art. 1, 8, Nev. Const.;
Virginia and Truckee R.R. Co. v. Henry, 8 Nev. 165) the properties sought to be condemned.
10

____________________

10
Though market value is a measure of just compensation, it is not the sole measure. Market value may, or
may not, amount to just compensation. In Virginia and Truckee R.R. Co. v. Henry, supra, it is said, inter alia:
Upon this language, although the words compensation' and damages' are used, of course in the received and
construed sense, petitioner insists that the measure thereof is filled by giving the private person the market value
of the land taken. If such was the intention of the legislature, apt language has not been chosen to express it; and
if such language had been used as of necessity clearly expressed such intention, then the act in that regard would
have been opposed to the constitutional provision of the United States and of this State forbidding the taking of
private property for public use without just compensation,' and not only so but to the practice either of written
or unwritten law of every civilized people. Upon principle and precedent the proposition is monstrous. While the
law does and should provide in proper case for the surrender to the public use of individual property, so that no
stay shall impede the general necessity, on the other hand it must jealously guard the rights of individual owners.
They are never to be remitted, as counsel suggests, to litigation for all matter of loss save the naked market value
of the property taken, but no part of their property shall be taken without just compensation first made or
secured.' It is difficult to imagine an unjust compensation; but the word just' is used evidently to intensify the
meaning of the word compensation;' to convey the idea that the equivalent to be rendered for property taken
shall be real, substantial, full, ample; and no legislature can diminish by one jot the rotund expression of the
constitution. So are all the decided cases.
____________
79 Nev. 128, 128 (1963) Cranmer v. Cranmer
ROBERT L. CRANMER, Appellant, v. LILLIAN
C. CRANMER, Respondent.
No. 4556
March 11, 1963 379 P.2d 474
Appeal from the Second Judicial District Court, Washoe County; Thomas O. Craven,
Judge.
Divorce action. The lower court entered a judgment dissolving bond of matrimony and
awarding attorney fees to wife, and the husband appealed. The Supreme Court, McNamee, J.,
held that award of attorney fees without a showing of necessitous circumstances was
error.
Court, McNamee, J., held that award of attorney fees without a showing of necessitous
circumstances was error.
Affirmed as modified.
Vargas, Dillon & Bartlett, of Reno, for Appellant.
Morse & Graves, of Las Vegas, and Harley W. Gustin, of Salt Lake City, Utah, for
Respondent.
1. Divorce.
Suit money and attorney fees will be allowed in divorce action only for expenses to be incurred and
attorneys' services to be performed in future.
2. Divorce.
Necessitous circumstances must be shown before court is empowered to award attorney fees or other suit
money in divorce action.
3. Divorce.
Statute providing that court may award reasonable attorney fees to either party to a divorce action if such
fees are in issue regardless of whether application for suit money has been made is merely intended to
allow award of attorney fees in a proper case, even though prior application has not been made therefor,
and though services have already been performed. NRS 125.150.
4. Divorce.
Award of attorney fees in divorce action without a showing of necessitous circumstances was error. NRS
125.150.
OPINION
By the Court, McNamee, J:
This is an appeal from that part of the judgment dissolving the bonds of matrimony
theretofore existing between the parties hereto which awards attorney fees to the respondent
in the sum of $11,000.
In addition to the dissolution of the marriage and the award of attorney fees, the judgment
determined that there was no community property belonging to the parties and distributed to
the appellant and respondent their respective separate properties. Their joint property was by
stipulation equally divided. Furthermore, the judgment awarded respondent $1,000 per month
as permanent alimony, plus $150 per month for the support of the minor daughter, whose
custody was awarded to respondent.
support of the minor daughter, whose custody was awarded to respondent.
The lower court found that appellant's assets were $148,742.75, plus his half of the
securities jointly held with respondent, which added $43,611 to his net worth. His liabilities,
in addition to some personal expenses, were $18,000 to Zion's First National Bank of Salt
Lake City and $23,168.53 on a mortgage.
Respondent's assets were found to be a home appraised at $87,000, furnishings therein, the
value of which was not determined by the court but is listed in the evidence at $10,934.45,
marketable securities of the value of $16,540.25, and her half of the joint tenancy securities of
the value of $43,611. She also had a 1960 automobile listed in the evidence as valued at
$1,775.
The total capital assets of appellant were found by the court to have a fair market value of
$192,353.75. The value of the assets of the respondent was found by the court to be
$147,151.25, exclusive of the value of the automobile and the value of the household
furnishings.
It is appellant's contention that the lower court erred in awarding to the wife attorney fees
in the sum of $11,000 in the absence of a showing of necessitous circumstances. In Fleming
v. Fleming, 58 Nev. 179, 72 P.2d 1110, this court, following earlier decisions, held that the
wife's necessity is a prerequisite to allowances of suit money or attorney's fees.
In Thorne v. Thorne, 74 Nev. 211, 214, 326 P.2d 729, 730, we said:
As to the judgment for counsel fees, appellant contends that the court had no power to
render such judgment; that its only power with respect to counsel fees lies in the area of suit
money under NRS 125.040 to require the husband to pay such sums as may be necessary to
enable the wife to carry on or defend such suit.'
This point, too, is well taken. While expenses of the litigation may well be taken into
consideration by a court in its disposition of community property, judgment for counsel fees
in an action for divorce is not otherwise authorized save as founded upon a motion for suit
money and the showing necessary upon such a motion.
[Headnote 1]
The reason for the holding in the Thorne case that a judgment for counsel fees in an
action for divorce is not authorized save as founded upon a motion for suit money and the
showing necessary upon such motion, although not stated in that case, is because of the long
established rule in this state that suit money and attorney fees will be allowed only for
expenses to be incurred and attorney's services to be performed in the future. Fleming v.
Fleming, supra.
After the Thorne case, NRS 125.150 was amended by adding the following paragraph:
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.
Respondent maintains that by reason of said amendment not only can attorney fees be
awarded at the conclusion of the trial with or without a prior application therefor during the
pendency of the action, but also the amendment removes the requirement that the wife make a
showing of necessitous circumstances.
[Headnotes 2, 3]
Although it is conceded that attorney fees are in issue under the pleadings we have
concluded that the rule in this state requiring a showing of necessitous circumstances before
the court is empowered to award attorney fees or other suit money remains in effect, and that
the intention of the legislature in amending NRS 125.150 was merely for the purpose of
allowing the award of attorney fees in a proper case even though prior application had not
been made therefor, and the services already had been performed. Our conclusion in this
regard is fortified by the title of Chapter 244 of the 1961 Statutes of Nevada, the amending
act, which reads as follows: An act to amend NRS section 125.150, relating to alimony and
adjudication of property rights in divorce actions, by permitting the court, in such actions, to
award a reasonable attorney's fee to either party whether or not a motion for suit money
pending the action has been filed.
[Headnote 4]
The award of attorney fees by the court below without a showing of necessitous
circumstances was error.
The judgment is modified by striking therefrom the order requiring appellant to pay
$11,000 attorney fees to respondent. As so modified, the judgment is affirmed.
____________
79 Nev. 132, 132 (1963) Randono v. Nev. Real Estate Comm'n
EUGENE C. RANDONO, Appellant, v. NEVADA
REAL ESTATE COMMISSION, Respondent.
No. 4560
NEVADA REAL ESTATE COMMISSION, Appellant,
v. EUGENE C. RANDONO, Respondent.
No. 4590
March 11, 1963 379 P.2d 537
Appeals from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Proceeding by Real Estate Commission for revocation of licenses issued to
broker-salesman. From an order of the Commission revoking the licenses, the
broker-salesman appealed. The lower court affirmed, and the broker-salesman appealed and
the Commission appealed from refusal of its motion to find the broker-salesman in contempt
for failure to surrender the license. The Supreme Court, McNamee, J., held that the
Commission did not abuse its discretion in revoking licenses of broker-salesman for violation
of statutes and rules concerning employment by or acceptance of compensation from any
person other than the broker under whom he is employed at the time he is licensed and the
paying over of any money received by him on any transaction to the real estate broker, and
that court did not err in refusing to adjudge the broker-salesman in contempt.
Case No. 4560 affirmed. Case No. 4590 affirmed in part and dismissed in part.
Jones, Wiener & Jones, of Las Vegas, for Eugene C. Randono.
Harvey Dickerson, Attorney General, and W. Bruce Beckley, Special Deputy Attorney
General, for Nevada Real Estate Commission.
1. Brokers.
Supreme Court, on appeal from judgement of district court affirming revocation of license of real estate
broker-salesman, is limited to a determination of whether there has been an abuse of discretion on the part
of the Real Estate Commission. NRS 645.760.
2. Brokers.
Real Estate Commission did not abuse its discretion in revoking licenses of broker-salesman for violation
of statutes and rules concerning employment by or acceptance of compensation from any person other than
the broker under whom he is employed at the time he is licensed and the paying over of any money
received by him on any transaction to the real estate broker. NRS 645.280, subd. 2, 645.310, subd. 2,
645.630, subds. 5-7, 9, 18, 19, 645.760.
3. Brokers.
Judgment affirming REal Estate Commission's revocation of a broker-salesman's licenses and ordering
salesman to deliver to the Commission any and all licenses and pocket cards issued to him was not stayed
pending appeal by salesman, who failed to post a supersedeas bond. NRCP 70; NRS 645.002 et seq.
4. Brokers.
It was within discretion of trial court to refuse to adjudge a broker-salesman in contempt for failure to
surrender revoked licenses and pocket cards issued to him by Real Estate Commission pursuant to order of
Commission and order of court in affirmance of Commission's order. NRS 645.002 et seq.; NRCP 70.
OPINION
The Nevada Real Estate Commission, proceeding under NRS 645.690, ordered the
revocation of all licenses issued by it to Randono. Randono appealed from this order to the
district court which, after a hearing, found that the Commission did not abuse its discretion in
revoking Randono's license, and dismissed the appeal.
It further ordered that Randono forthwith deliver to the Commission any and all licenses and
pocket cards issued by it to him.
Appeal in Case No. 4560 is from this judgment of the district court.
The real estate licenses of Randono were revoked because of the finding by the
Commission that he had violated Subsection 2 of NRS 645.280, Subsection 2 of NRS
645.310, and Subsections 5, 6, 7, 18, and 19 of NRS 645.630. The Commission also found
that Randono had violated Commission Rules and Regulations, Section III, paragraph 2;
Section IV, paragraph 6.
NRS 645.280 (2):
No real estate salesman shall be employed by or accept compensation from any person
other than the broker under whom he is at the time licensed.
NRS 645.310 (2):
Every real estate salesman, promptly on receipt by him of a deposit on any transaction in
which he is engaged on behalf of his broker-employer, shall pay over the deposit to the real
estate broker.
NRS 645.630:
The commission shall have the power to suspend or to revoke any license issued under
the provisions of this chapter at any time * * * where the licensee in performing or attempting
to perform any of the acts mentioned in this section is deemed to be guilty of:
* * * * *

5. Accepting a commission or valuable consideration as a real estate salesman for the
performance of any of the acts specified in this chapter from any person except his employer,
who must be a licensed real estate broker.
6. Representing or attempting to represent a real estate broker other than the employer,
without the express knowledge and consent of the employer.
7. Failing, within a reasonable time, to account for or to remit any moneys coming into
his possession which belong to others.
* * * * *
18. Being unworthy or incompetent to act as a real estate broker or salesman in such
manner as to safeguard the interests of the public.
19. Any other conduct, whether of the same or a different character from that
hereinbefore specified, which constitutes improper, fraudulent or dishonest dealing.
Nevada Real Estate Commission Rules and Regulations:
Section III, paragraph 2. A licensed broker-salesman or salesman is employed solely by
the broker under whom he is licensed and has no right to perform independently any real
estate service for individuals or other brokers. He may not list or sell real property or conduct
any real estate transaction without the knowledge and consent of his employing broker. He is
prohibited from receiving compensation for his services from anyone but his employing
broker.
Section IV, paragraph 6. Every real estate broker-salesman or salesman, on receipt by him
of a deposit on any transaction in which he is engaged on behalf of his broker-employer, shall
immediately pay over the deposit to the real estate broker.
In the lower court the parties stipulated as follows:
Appellant is and was, at all times mentioned in the complaint, licensed by respondent;
until April 14, 1960, appellant was licensed as a broker-salesman; and, since said date, as a
broker. Until said date, appellant was employed as a broker-salesman by Leland McArthur, a
licensed real estate broker, herein known as broker.
On or about February 4, 1960, Helen Carruthers, herein known as Carruthers, executed an
offer to purchase real property located in Las Vegas, Nevada, which had been listed with
broker by its owner, one Kerwin (Exhibit A, Complaint). Simultaneously, Carruthers gave
one Scott, also employed by broker, as a salesman, a check for $200, as a deposit on said
property (Exhibit B, Complaint). On that day, or the day after, said Scott delivered said check
to appellant, who placed the same in appellant's unlocked desk in broker's office.
Appellant kept said check in appellant's desk for at least a week or so, when appellant
delivered it to broker. Said check was deposited in broker's trust account on March 10, 1960.
Carruther's offer was never accepted by Kerwin.
At least as early as the latter part of February or the early part of March, 1960, Carruthers
demanded of appellant the return of said deposit, and continued to demand such return
thereafter. On or about April 13, 1960, broker delivered a check for $200 to appellant and
appellant acknowledged in writing that said check represented deposit made to me by Mrs.
Helen Carruthers.' Appellant deposited said check in his personal bank account which
contained funds of his own. Carruthers continued to demand of appellant return of said
deposit after April 13, 1960, but appellant did not return the deposit to Carruthers until on or
about July 30, 1960, after Carruthers had commenced a legal action to obtain its return, which
action was then being tried.
In the latter part of March, 1960, appellant commenced negotiations with one Jensen to
purchase said Kerwin property and had escrow instructions prepared to cover such sale at
Pioneer Title Insurance Co. Appellant instructed said company to pay the real estate
commission to appellant, and upon the close of such escrow, said company paid said
commission, in the amount of $849.39 directly to appellant on or about April 7, 1960, none of
which was paid to broker. Said company had no knowledge that appellant was employed or
connected with broker.
In addition to said stipulation, the lower court reviewed the testimony of several witnesses
presented at the hearing before the Commission, which in some respects was conflicting. The
briefs of appellant Randono, however, cite only excerpts from the testimony and other
evidence favorable to his position. In so far as these are inconsistent with the above
stipulation they are disregarded. No new evidence was presented in the court below.
[Headnotes 1, 2]
Under NRS 645.760 it is provided that the district court on an appeal from the decision of
the Commission is limited solely to a consideration and determination of the question
whether there has been an abuse of discretion on the part of the commission in making such
decision and the burden of proof is upon the appellant. Being thus limited, the lower court
found that there had been no abuse of discretion on the part of the Commission in making its
decision with respect to the guilt of appellant. The function of this court at this time is the
same as that of the lower court. McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268. The action
of the Commission is clothed with the presumption of validity and is supported by substantial
evidence as well as by appellant's own stipulation as to the facts. We are in accord with the
determination of the trial court that appellant has not sustained his burden of showing that the
bounds of the Commission's discretion in determining that appellant had violated statutory
provisions and rules of the Commission have been exceeded.
Subsection 9 of NRS 645.630 provides that the Commission shall have the power to
suspend or revoke any license when the licensee is found guilty of violating any of the
provisions of Chapter 645 of NRS which is the Real Estate Brokers and Salesmen Act. As
hereinbefore pointed out, the Commission had found that appellant had violated several
sections of said act and two of its rules. For such violations the penalty of revocation of
licenses was imposed.
Under Subsection 3 of NRS 645.760 the trial court was limited in making its decision with
respect to the penalty to be imposed in the same manner as with respect to appellant's guilt.
That is, solely to a consideration and determination of the question whether there has been
an abuse of discretion on the part of the commission in making such decision. In its finding
that there was no irregularity or abuse of discretion shown by the action of the Commission in
this regard we are compelled to conclude that the trial court acted properly.
we are compelled to conclude that the trial court acted properly. That we as triers of the fact
might have reached a different conclusion as to the penalty to be imposed is of no
significance on this appeal when we cannot say, as a matter of law under the facts of this
case, that there has been an abuse of discretion on the part of the Commission.
In Macfarlane v. Department of Alcoholic Bev. Con., 51 Cal.2d 84, 330 P.2d 769, the
petitioner therein urged that revocation, rather than mere suspension, of license was too harsh.
The California constitution expressly authorized license revocation for the conduct
complained of. The California Supreme Court stated in this regard: On the record this might
appear to some of us to be a just criticism. But no such determination is within our proper
function. * * * [T]his court is not free to substitute its own discretion as to the matter, even if
it were inclined so to do.
In Kendall v. Beiling, 295 Ky. 782, 175 S.W.2d 489, the Board of Health revoked a
license to practice optometry. The circuit court set aside the action of the board. In reversing
the action of the circuit court, the Court of Appeals said: We are constrained to observe,
perhaps gratuitously, that the permanent revocation of this young man's license seems to be
severe under the circumstances, where the evil sought to be struck was apparently the
unlawful practice by the corporation, which might have been done by a direct proceeding. But
the legislature vested such discretion and power in the State Board of Health and the court has
no right to modify that decision, that also being within the province of the Board.
See also 2 Cal.Jur.2d 393, Administrative Law 235; In re Oregon Liquor Control
Commission, 181 Or. 707, 185 P.2d 246.
The judgment in Case No. 4560 is affirmed.
[Headnote 3]
The judgment of the lower court dismissing Randono's appeal from the decision of the
Commission and which ordered Randono forthwith to deliver to the Commission any and
all licenses and pocket cards issued by it to him was dated July 16, 1962.
which ordered Randono forthwith to deliver to the Commission any and all licenses and
pocket cards issued by it to him was dated July 16, 1962. Randono's notice of appeal
therefrom to this court was served and filed the same day. On July 18, 1962, the Commission
filed a motion to cite Randono for contempt because of his failure to surrender his licenses as
required by the judgment of July 16, 1962. The motion was heard July 24, 1962, together
with a motion to require Randono to post a supersedeas bond to stay the execution of the
judgment pending his appeal to this court. The Commission contends that the lower court
erred in denying these motions, and its appeal in Case No. 4590 is from the denial of said
motions.
Rule 70, NRCP, provides, in part, that if a judgment directs a party to deliver documents
or to perform any other specific act and the party fails to comply within the time specified
the court may adjudge the party in contempt. Randono did not seek, pursuant to Rule
73(d)(2), NRCP, a stay of the execution of the judgment directing him to deliver the licenses
and pocket cards forthwith. Enforcement of the judgment, pursuant to Rule 70, NRCP, was
therefore available to the trial court. Caplow v. District Court, 72 Nev. 265, 302 P.2d 755.
There is nothing in the Real Estate Brokers and Salesmen Act which provides for any stay of
the judgment of the district court pending an appeal to this court. Consequently the lower
court erred in holding that the judgment was stayed whether or not a supersedeas bond was
filed.
The question whether an order refusing to punish for an alleged contempt is appealable
does not require determination at this time.
[Headnote 4]
Inasmuch as the lower court in effect stayed the execution of its judgment, even though
such action of that court was erroneous, it was within its discretion, under Rule 70, NRCP, to
refuse to adjudge Randono in contempt. Cf. State Bar of California v. Superior Court, 4
Cal.2d 86, 47 P.2d 697.
The order denying the motion to cite Randono for contempt is affirmed. The appeal from
the order dispensing with the requirement of a supersedeas bond to stay execution of the
judgment pending appeal to this court having become moot is dismissed.
____________
79 Nev. 140, 140 (1963) Kimball v. Hoops Constr. Co.
BUD C. KIMBALL, Appellant, v. HOOPS CONSTRUCTION COMPANY, a Corporation,
WARREN BRIGGS, and JOHN R. EMMONS, Respondents.
No. 4563
March 18, 1963 379 P.2d 541
Appeal from the judgment of the Fourth Judicial District Court, Elko County; John C.
Mowbray, Judge.
Action against construction company and others for injuries sustained when plaintiff's
pickup truck in which he was riding as passenger struck gravel windrow and overturned.
The lower court rendered judgment for defendants, and plaintiff appealed. The Supreme
Court, Thompson, J., held that as the evidence supported findings that sole cause of injuries
was negligence of plaintiff's driver, whether lower court was right or wrong as to findings that
no defendant was negligent and that plaintiff, as owner, had right to control driver was of no
consequence and no error therein could require reversal.
Judgment affirmed.
Leo J. Puccinelli, of Elko, and Leonard W. Elton, of Salt Lake City, Utah, for Appellant.
Orville R. Wilson, of Elko, and Raymond Free, of Fallon, for Respondents.
1. Automobiles.
Evidence supported finding that sole proximate cause of accident occurring when pickup truck struck
windrow of gravel and overturned was negligence of its driver.
Where evidence supported findings that sole cause of injuries was negligence of plaintiff's driver,
whether lower court was right or wrong as to findings that no defendant was negligent and that plaintiff, as
owner, had right to control driver was of no consequence, and no error therein could require reversal.
OPINION
In the lower court the plaintiff, Kimball, sought to recover compensation for personal
injuries and property damage incurred when a pickup truck, which he owned and in which he
was riding as a passenger, struck a windrow and overturned.
1
His claim for relief is based
primarily upon the contention that the defendants Hoops Construction Company, the general
contractor in charge of the road construction job; Briggs, its superintendent; and Emmons, a
subcontractor, were negligent in failing to barricade the road or place flares and other warning
devices along the windrows. Following trial without a jury, the court held for the defendants.
In doing so, it found specifically, inter alia, that (a) the negligence of Stoddard, the driver of
plaintiff's pickup truck, was the sole proximate cause of the accident; (b) that none of the
defendants was negligent; and (c) that plaintiff, as the owner, had the right to control
Stoddard, the driver, and did control him, with the result that Stoddard's negligence was
imputable to the plaintiff to bar recovery.
____________________

1
After being spread on the roadbed, approximately the upper one-half of the mixed material (gravel-asphalt)
is removed by a power grader and placed in a windrow (pyramid triangular shape) of uniform size upon the
roadbed. The area not occupied by the windrow is rolled. The windrowed material is then spread over the lower
compacted area by alternating the windrow from one side of the roadbed to the other and to the center, gradually
decreasing the amount of the material moved until the entire surface is smooth.
driver, and did control him, with the result that Stoddard's negligence was imputable to the
plaintiff to bar recovery.
[Headnotes 1, 2]
On this appeal the plaintiff-appellant complains that the findings above referred to as (b)
and (c) are not supported by substantial evidence, and concludes that a reversal must follow.
However, he does not directly attack the finding that Stoddard's negligence was the sole
proximate cause. We shall presume that he intended to do so. In any event, the record
contains substantial evidence to support the lower court's finding as to cause.
2
Accordingly,
whether the lower court was right or wrong as to findings (b) and (c) is of no consequence.
Were we to accept the plaintiff-appellant's premise that each defendant was negligent, still if
such negligence was not a proximate cause of the accident, liability would not attach. Nor is
the concept of imputed negligence involved when the court has found that the negligence
sought to be imputed is the sole proximate cause (as distinguished from a contributory or
concurrent cause) of the accident.
3
The finding as to imputed negligence becomes
immaterial. Accordingly, in the light of the lower court's finding regarding the sole proximate
cause of the accident, which finding is supported by substantial evidence, we may not disturb
the judgment.
Affirmed.
Badt C. J., and McNamee, J., concur.
____________________

2
Without discussing all factual evidence, the lower court could believe that Stoddard was driving plaintiff's
truck at night at a speed of 60 to 65 m.p.h. on a road under construction, pocketed with dusty areas, and with
knowledge of the presence of windrows thereon; that he was unable to either stop or to avoid driving into a
windrow; that such conduct was the sole proximate cause of the accident.

3
Stoddard, driver of plaintiff's pickup truck, was originally named as a defendant, but the cause as to him was
later dismissed.
____________
79 Nev. 143, 143 (1963) Hyman v. Lazarus
CHARLES J. HYMAN, Also Known As CHARLES J.
HARMON, Appellant, v. JANE LAZARUS, Respondent.
No. 4566
March 25, 1963 379 P.2d 891
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Action by wife to recover extraordinary medical expenses for treatment of minor children
under a property settlement agreement. From an adverse judgment of the lower court the
husband appealed. The Supreme Court, McNamee, J., held that under property settlement
agreement providing that husband would pay extraordinary medical expenses until remarriage
of wife and during minority of children and, in event of remarriage of wife, husband would
pay $2,500 annually for each child during minority and would have to make no additional
payments whatsoever, husband was not liable for extraordinary expenses incurred in
treatment of a child after the wife had remarried.
Affirmed as modified.
Woodburn, Forman, Wedge, Blakey and Folsom, and Roger W. Jeppson, of Reno, for
Appellant.
Nada Novakovich, of Reno, for Respondent.
Husband and Wife.
Under property settlement agreement providing that husband would pay extraordinary medical expenses
until remarriage of wife and during minority of children and, in event of remarriage of wife, husband would
pay $2,500 annually for each child during minority and would have to make no additional payments
whatsoever, husband was not liable for extraordinary expenses incurred in treatment of a child after wife
had remarried.
OPINION
The parties hereto intermarried in November, 1935. In June, 1943, while the parties were
residing in New York, they entered into a property settlement agreement which settled their
property rights and the custody and support of their two minor daughters.
which settled their property rights and the custody and support of their two minor daughters.
In August, 1943, the marriage was dissolved in this state by a decree of divorce wherein the
property settlement agreement was approved but not merged in the decree.
Paragraph Sixth (d) of the agreement provides:
Although there are included in the amount to be paid to the Wife for her maintenance and
support and that of her children, as hereinafter provided, sums to be expended for ordinary
medical care, the Husband agrees, until the remarriage of the Wife and during the minority of
each of the children, to be responsible for extraordinary expenses incurred for doctors,
hospitalization and orthodenture for each of said children. Extraordinary expenses for doctors
and hospitalization shall be deemed to be sums spent in excess of Three hundred and sixty
dollars ($360) per annum for such services to the Wife and the children.
Paragraph Seventh (1)(c) provides:
In the event of the remarriage of the Wife during the life of the Husband, then no amount
shall be payable to the Wife for her own use, but there shall be paid to her the sum of Twenty
Five hundred dollars ($2,500) per annum for each child during the minority of such child or
until the decease of the said child prior to that time, whichever event shall occur first, to be
used by the Wife for the education, maintenance and support of such child, but with no
additional payments whatsoever; * * *.
Respondent remarried one Lazarus in 1947. The action herein is, in part, for recovery of
alleged extraordinary medical expenses for the minor children incurred since said remarriage.
It is respondent's contention that under the terms of said paragraphs of the agreement,
despite her remarriage, she was entitled to reimbursement for extraordinary medical expenses
for the minor children during their minority. Appellant contends, on the other hand, that upon
respondent's remarriage he was required to pay only $2,500 per annum for each child, but
with no additional payments whatsoever. The lower court decided in favor of respondent and
allowed her (in addition to another sum for accrued child support of which there is no
complaint on appeal) the full amount of the extraordinary expenses claimed, to wit,
$3,994.49.
addition to another sum for accrued child support of which there is no complaint on appeal)
the full amount of the extraordinary expenses claimed, to wit, $3,994.49.
We are concerned here only with the allowance of said sum of $3,994.39, which is one of
the two errors assigned on appeal.
We construe the liability of the husband for extraordinary expenses incurred for doctors,
hospitalization and orthodenture for each of said children to be conditioned on the wife's
remaining single during the minority of each of the children. He agreed to be responsible for
such expenses until the remarriage of the Wife and during the minority of each of the
children. Before they are payable, two things must exist, namely, the unmarried status of the
wife and the minority status of the children. That this was the intention of the parties becomes
clear from the seventh paragraph of the agreement which recites: In the event of the
remarriage of the Wife * * * there shall be paid to her the sum of Twenty Five hundred
dollars ($2,500) per annum for each child * * * but with no additional payments whatsoever.
Inasmuch as this is a suit on a contract to reimburse the wife for money expended by her
during the minority of the children who have reached their majority, we are not required to
consider matters of public policy in construing the terms of the agreement.
The other assignment of error pertains to an item included in the $3,994.49 allowance.
Because the entire allowance must be rejected for the reasons heretofore given, it is
unnecessary to consider further any of the items contained therein.
The judgment is modified by striking therefrom the allowance of $3,994.49 for
extraordinary medical expenses. As so modified, the judgment is affirmed. No costs are
allowed.
Badt, C. J., and Zenoff, D. J., concur.
Thompson, J., being disqualified, the Governor commissioned Honorable David Zenoff,
Judge of the Eighth Judicial District, to sit in his place.
____________
79 Nev. 146, 146 (1963) State v. Carter
STATE OF NEVADA, on Behalf of JACK FOGLIANI, Warden, Nevada State Prison,
Appellant, v. CHARLES JOSEPH CARTER, Respondent.
No. 4607
March 27, 1963 379 P.2d 945
Appeal from order of the First Judicial District Court, Ormsby County, Frank B. Gregory,
Judge, granting a petition for writ of habeas corpus.
Habeas corpus proceeding. From an order of the lower court the state appealed. The
Supreme Court, Thompson, J., held, inter alia, that where accused was charged with assault
with deadly weapon and robbery, the error of omission in failing to advise jury of its
obligation to convict of but one offense was of no legal significance since jury verdict
purporting to convict accused of assault and battery was void, for he was not charged with
that offense, nor was that crime necessarily included as a lesser offense within charge of
assault with a deadly weapon, so that accused was in fact convicted only of robbery.
Reversed.
Harvey Dickerson, Attorney General, and D. W. Priest, Chief Assistant Attorney General,
of Carson City, for Appellant.
Charles Joseph Carter, Pro Se.
1. Indictment and Information.
An information may properly charge different offenses if they relate to same act, transaction, or event,
and prosecutor need not elect between them, and correlatively, an information may not join two separate
and distinct felonies occurring at different and distinct times and places, and if such information is filed,
state may be compelled, upon proper motion, to elect upon which of the two offenses charged it will
prosecute. NRS 173.260.
Where information disclosed that each offense charged, assault with a deadly weapon and robbery, was
committed upon same victim at same time and place, each offense was related to same transaction or
event, and hence joinder was proper. NRS 173.260, 200.380, 200.400, subd. 2.
3. Criminal Law.
Where information properly charged assault with deadly weapon and robbery, and trial upon merits
involved factual situation where single transaction might have resulted in commission of two offenses, each
of which was made punishable in different ways by different provisions of statute, court should have
directed jury that accused, if found guilty at all, be convicted of but one of offenses charged, and if trial
court failed to so instruct jury, error occurred, and in any event, court should not have allowed jury to
return two verdicts of conviction. NRS 173.260, 200.380, 200.400, subd. 2.
4. Criminal Law; Indictment and Information.
Where accused was charged with assault with deadly weapon and robbery, the error of omission in failing
to advise jury of its obligation to convict of but one offense was of no legal significance since jury verdict
purporting to convict accused of assault and battery was void, for he was not charged with that offense, nor
was that crime necessarily included as a lesser offense within charge of assault with a deadly weapon, so
that accused was in fact convicted only of robbery. NRS 173.260, 200.380, 200.400, subd. 2.
Where offense charged cannot be committed without necessarily committing another offense, the latter is
a necessarily included offense which may be a lower degree of crime charged or a minor offense of the
same character.
6. Criminal Law.
A verdict which does not determine the issues raised by a not guilty plea is void, and court is without
jurisdiction to enter judgment thereon.
7. Criminal Law.
Where two separate offenses relating to same transaction or event are joined in information, a conviction
on one with no verdict on the other is an acquittal as to the other.
8. Criminal Law.
Under information charging assault with a deadly weapon and robbery, finding of guilty upon charge of
robbery was, in legal contemplation, a finding of not guilty on other charge. NRS 173.260, 200.380,
200.400, subd. 2.
9. Criminal Law.
The statutory provision that defendant may be convicted of but one of offenses charged, and the same
must be stated in the verdict, precludes more than one conviction of offenses charged and of those
necessarily included within offenses charged, and it is not violated when one of verdicts is void and the
other valid. NRS 173.260, subd. 2.
OPINION
The state appeals from an order of the district court granting Carter's petition for a writ of
habeas corpus.
The appeal is authorized by NRS 34.380(4). Carter had initially been tried upon an
information charging him, in separate counts, with the commission of two felonies relating to
the same act, transaction or event; assault with a deadly weapon (NRS 200.400(2)), and
robbery (NRS 200.380). A jury was permitted to return two verdicts, one convicting Carter of
assault and battery and the other convicting him of robbery. Judgment was thereafter
pronounced upon each verdict and separate sentences imposed (three months in the county
jail for assault and battery, a misdemeanor, and a term of not less than five nor more than
seven years in the state prison for robbery, a felony). In later granting Carter's application for
a writ of habeas corpus, the district court found that the mandate of NRS 173.260, * * * but
the defendant may be convicted of but one of the offenses charged, and the same must be
stated in the verdict,
1
was violated with the result that each judgment and sentence was
entered without jurisdiction and was void. We agree that the assault and battery conviction
was void, but for a different reason than that given by the district court. We do not agree with
that court that the robbery conviction was also void and entered without jurisdiction.
[Headnotes 1-8]
An information may properly charge different offenses if they relate to the same act,
transaction, or event, and the prosecutor need not elect between them. NRS 173.260 supra.
State v. Womack, 68 Nev. 241, 229 P.2d 149. Correlatively, an information may not join two
separate and distinct felonies occurring at different and distinct times and places. If such an
information is filed, the state may be compelled, upon proper motion, to elect upon which of
the two offenses charged it will prosecute.
____________________

1
NRS 173.260, in full, reads: 1. The indictment or information may charge different offenses or different
statements of the same offenses, under separate counts, but they must all relate to the same act, transaction or
event, and charges of offenses occurring at different and distinct times and places must not be joined.
2. The prosecution is not required to elect between the different offenses or counts set forth in the
indictment or information, but the defendant may be convicted of but one of the offenses charged, and the same
must be stated in the verdict.
motion, to elect upon which of the two offenses charged it will prosecute. People v. Stingley,
414 Ill. 398, 111 N.E.2d 548. The information before us discloses that each offense charged
(assault with a deadly weapon and robbery) was committed upon the same victim at the same
time and place; each offense related to the same transaction or event. Therefore, joinder
was proper. Thus, the trial upon the merits involved a factual situation where a single
transaction may have resulted in the commission of two offenses, each of which is made
punishable in different ways by different provisions of the criminal practice act. In such a
case NRS 173.260 (2) contemplates that the trial court will, by proper instruction, direct the
jury that the accused (if found guilty at all) be convicted of but one of the offenses charged.
If the trial court failed to so instruct the jury, error occurred.
2
In any event, it should not have
allowed the jury to return two verdicts of conviction. However, this error of omission in
failing to advise the jury of its obligation under NRS 173.260(2) is of no legal significance
here because analysis reveals that Carter was in fact convicted of but one of the offenses
charged, to wit, robbery. The jury verdict purporting to convict Carter of assault and battery
was a nullity and void, for he was not charged with that offense, nor is that crime necessarily
included as a lesser offense within the charge of assault with a deadly weapon.
3
A verdict
which does not determine the issues raised by a not guilty plea is void, and the court is
without jurisdiction to enter judgment thereon.
____________________

2
The jury instructions are not contained in the record on appeal.

3
Where the offense charged cannot be committed without necessarily committing another offense, the latter
is a necessarily included offense. People v. Greer, 20 Cal.2d 589, 184 P.2d 512. The necessarily included
offense may be a lower degree of the crime charged or a minor offense of the same character. State v. Holm, 55
Nev. 468, 37 P.2d 821. As the charge of assault with a deadly weapon does not necessarily include a battery, the
offense of assault and battery is not a necessarily included offense. People v. Mueller, 147 Cal.App.2d 233, 305
P.2d 178; People v. McCaffrey, 118 Cal.App.2d 611, 258 P.2d 557. Cf. State v. Feinzilber, 76 Nev. 142, 350
P.2d 399, where we indicated that an assault with intent to kill was not necessarily included within the charge of
robbery.
Ex parte Booth, 39 Nev. 183, 154 P. 933, L.R.A. 1916F, 960; Ex parte Dela, 25 Nev. 346, 60
P. 217. Also we mention that, where two separate offenses relating to the same transaction or
event are joined in an information, a conviction on one with no verdict on the other is an
acquittal as to the other. People v. Schrader, 2 Ill.2d 212, 117 N.E.2d 786. Thus, here the
finding of guilty upon the charge of robbery was, in legal contemplation, a finding of not
guilty on the charge of assault with a deadly weapon.
[Headnote 9]
The provision of NRS 173.260(2) that the defendant may be convicted of but one of the
offenses charged, and the same must be stated in the verdict precludes more than one
conviction of the offenses charged and of those necessarily included within the offenses
charged. It is not violated when, as here, one of the verdicts is void and the other valid.
Accordingly, the assault and battery conviction, being void, is set aside. The petitioner,
however, is not entitled to release so long as he is held under a valid judgment of conviction
for robbery. The order of the district court granting Carter's petition for a writ of habeas
corpus is reversed, and his application for habeas corpus denied.
____________
79 Nev. 150, 150 (1963) Hotel Last Frontier v. Frontier Prop.
HOTEL LAST FRONTIER CORPORATION, a Corporation, Appellant, v. FRONTIER
PROPERTIES, INC., a Corporation, Respondent.
No. 4542
April 3, 1963 380 P.2d 293
Appeal from order of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge, granting a default judgment.
Declaratory judgment action to obtain correct construction to be given provisions of lease
and agreement executed between parties. The lower court granted plaintiff a default judgment
and denied defendant's motion to set aside the default judgment, and the defendant
appealed. The Supreme Court, Thompson, J., held that meritorious defense required as
prerequisite to setting aside of default judgment was shown, where defendant's answer,
presented with motion to set aside judgment, admitted existence of genuine controversy
and pleaded facts and contentions which, if true, would effectively controvert
construction asserted by plaintiff.
to set aside the default judgment, and the defendant appealed. The Supreme Court,
Thompson, J., held that meritorious defense required as prerequisite to setting aside of default
judgment was shown, where defendant's answer, presented with motion to set aside judgment,
admitted existence of genuine controversy and pleaded facts and contentions which, if true,
would effectively controvert construction asserted by plaintiff.
Reversed, and district court directed to set aside the default and judgment and
permit defendant to answer upon such terms as may be just and reasonable;; no costs
allowed.
G. William Coulthard, and Franklin N. Smith, of Las Vegas, for Appellant.
Calvin C. Magleby, of Las Vegas, for Respondent.
Trial court's exercise of discretion in setting aside default judgment or in refusing to do so will not be
disturbed in absence of abuse of discretion. NRCP 60(b)(1).
2. Judgment.
Showing of mistake, inadvertence, surprise, or excusable neglect, singly or in combination, must be made
as prerequisite to setting aside of a default judgment. NRCP 60(b)(1).
3. Judgment.
A large amount of discretion is permitted in determining the facts which will establish existence of
conditions prerequisite to setting aside of default judgment, but prompt application to remove judgment,
absence of an intent to delay proceedings, lack of knowledge of party or counsel as to procedural
requirements, and good faith are significant and persuasive factors.
4. Judgment.
Existence of meritorious defense must be shown as prerequisite to setting aside of default judgment.
5. Judgment.
Meritorious defense, as prerequisite to opening of default judgment, may be shown by fact testimony, or
affidavit of one possessing testimonial qualifications, tending to establish defense to all or part of claim for
relief asserted, counsel's opinion, based upon facts relating to him but not set forth, that meritorious defense
exists as to all or part of the claim, or tender, in good faith and with moving papers, of responsive pleading
which, if true, would tend to establish the meritorious defense.
6. Judgment.
Basic underlying policy in regard to setting aside of default judgments is to have each case decided upon
its merits.
7. Judgment.
Defense counsel's failure to have caused an appearance to be entered within time allowed or to have
secured a written stipulation extending time was excusable, where prompt action was taken to set aside
resulting default judgment by motion filed on day on which counsel learned of entry of judgment and which
was one day after its entry, intent to delay case was not indicated, and bad faith was not present.
8. Judgment.
Meritorious defense, required as prerequisite to setting aside of default judgment in action for declaratory
relief in regard to construction to be accorded lease and related agreement, was shown, where defendant's
answer presented, with motion to set aside judgment, admitted existence of genuine controversy and
pleaded facts and contentions which, if true, would effectively controvert construction asserted by plaintiff.
NRCP 60(b)(1).
OPINION
Did prejudicial error occur when the district court refused to set aside the default judgment
entered below? The appeal presents this question.
Frontier Properties, Inc. sought a declaratory judgment as to the correct construction to be
given certain provisions of a lease and agreement executed concurrently between it, as lessee,
and Hotel Last Frontier Corporation as lessor. It alleged the existence of a genuine
controversy between the parties with respect to such provisions. Process was served February
19, 1962. Default was entered March 20, 1962. Proof was presented to the court and
judgment entered on March 26, 1962. One day later, the defendant, Hotel Last Frontier
Corporation, filed a motion to set aside the default judgment, asserting mistake, inadvertence,
surprise and excusable neglect, NRCP 60(b)(1),
1
supporting same with the affidavit of
counsel and annexing the answer to be filed should its motion be granted.
2
Its motion was
denied and the judgment permitted to stand.
____________________

1
NRCP 60(b) provides in part: On motion and upon such terms as are just, the court may relieve a party or
his legal representative from a final judgment * * * for the following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect; * * *.

2
Defense counsel below is not counsel for defendant-appellant here.
Over the years this court has frequently expressed itself as to a district court's exercise of
discretion in either setting aside a default judgment or refusing to do so. See (1) cases where a
default judgment was set aside and the ruling affirmed on appeal: Howe v. Coldren, 4 Nev.
171; State of Nevada v. C. V. & C. M. Co., 13 Nev. 194; Bowman v. Bowman, 47 Nev. 207,
217 P. 1102; Cicerchia v. Cicerchia, 77 Nev. 158, 360 P.2d 839; Blakeney v. Fremont Hotel,
Inc., 77 Nev. 191, 360 P.2d 1039; Anderson v. Havas, 77 Nev. 223, 361 P.2d 536; (2) cases
where a default judgment was set aside and the ruling reversed on appeal: Haley v. Eureka
Co. Bank, 20 Nev. 410, 22 P. 1098; Esden v. May, 36 Nev. 611, 135 P. 1185; Lukey v.
Thomas, 75 Nev. 20, 333 P.2d 979; Kelso v. Kelso, 78 Nev. 99, 369 P.2d 668; (3) cases
where the default judgment was not set aside and the ruling affirmed on appeal: Harper v.
Mallory, 4 Nev. 447; Guardia v. Guardia, 48 Nev. 230, 229 P. 386; Bryant v. Gibbs, 69 Nev.
167, 243 P.2d 1050; (4) cases where the default judgment was not set aside and ruling
reversed on appeal: Evans v. Cook, 11 Nev. 69; Horton v. New Pass Co., 21 Nev. 184, 27 P.
376; Stretch v. Montezuma M. Co., 29 Nev. 163, 86 P. 445; Baumann v. Nevada Colony
Corp., 44 Nev. 10, 189 P. 245; Wagner v. Anderson, 63 Nev. 453, 174 P.2d 612.
[Headnote 1]
The divergent results of the cited cases are, in the main, explainable because of the
different facts involved. The general principle of review here to be applied is that the lower
court's exercise of discretion will not be disturbed in the absence of an abuse. Blakeney v.
Fremont Hotel, Inc., 77 Nev. 191, 360 P.2d 1039; Bryant v. Gibbs, 69 Nev. 167, 243 P.2d
1050. To recognize that judicial discretion may be abused is to acknowledge the existence of
limits within which the exercise of discretion must occur. In Goodman v. Goodman, 68 Nev.
484, 489, 236 P.2d 305, 307, it is stated: Yet even within the area of discretion where the
court's discernment is not to be bound by hard and fast rules, its exercise of discretion in the
process of discernment may be guided by such applicable legal principles as may have
become recognized as proper in determining the course of justice.
recognized as proper in determining the course of justice. A clear ignoring by the court of
such established guides, without apparent justification, may constitute abuse of discretion.
[Headnotes 2-4]
What guides have been announced to indicate the course of action to be taken by the court
in deciding the question here presented? We shall mention some of them. (1) The showing
required by NRCP 60(b)(1), formerly NCL 8640, of mistake, inadvertence, surprise, or
excusable neglect, singly, or in combination, must, of course, be made. Blundin v. Blundin,
38 Nev. 212, 147 P. 1083. What facts will establish the existence of one or more of the
specified conditions is largely discretionary. Yet, guides have been declared. Prompt
application to remove the judgment is a persuasive factor. Howe v. Coldren, 4 Nev. 171;
likewise, the absence of an intent to delay proceedings, Blakeney v. Fremont Hotel, Inc., 77
Nev. 191, 360 P.2d 1039; Anderson v. Havas, 77 Nev. 223, 361 P.2d 536. The lack of
knowledge of the party or counsel as to procedural requirements has been given weight,
Cicerchia v. Cicerchia, 77 Nev. 158, 360 P.2d 839. Good faith is significant. Haley v. Eureka
Co. Bank, 20 Nev. 410, 22 P. 1098. (2) The showing required by case precedent that a
meritorious defense exist to the claim for relief asserted, also must be made. The total
absence of such a showing has defeated the movant's application to set aside the judgment.
Kelso v. Kelso, 78 Nev. 99, 369 P.2d 668; Guardia v. Guardia, 48 Nev. 230, 229 P. 386;
Lukey v. Thomas, 75 Nev. 20, 333 P.2d 979. The method employed to satisfy this
requirement is a matter concerning which prior decisions of this court have not been in
harmony. For example, in Howe v. Coldren, 4 Nev. 171, the affidavit of counsel that the
defendant has a good, legal and meritorious defense, without more, was frowned upon in
the absence of an averment that the affiant was familiar with the facts of the case. See also
State of Nevada v. C. V. & C. M. Co., 13 Nev. 194, and in Esden v. May, 36 Nev. 611, 135
P. 1185, the affidavit of counsel that affiant is advised and believes that the defendants have
a meritorious defense was rejected as insufficient, and counsel was not permitted to
testify as to what his clients had informed him as to the nature of their defense, the court
apparently being of the view that only the client could so testify.
was rejected as insufficient, and counsel was not permitted to testify as to what his clients had
informed him as to the nature of their defense, the court apparently being of the view that
only the client could so testify. Yet, later in Bowman v. Bowman, 47 Nev. 207, 217 P. 1102,
the court, citing Howe but ignoring Esden, said we perceive no reason why the attorney
could not make the affidavit as well as the defendant, if he is familiar with the facts * * *. In
Baumann v. Nevada Colony Corp., 44 Nev. 10, 189 P. 245, the party made the affidavit
asserting that he had stated the facts to his attorneys and had been advised that a meritorious
defense existed. In addition, a verified answer was submitted with the motion. Cf. Wagner v.
Anderson, 63 Nev. 453, 174 P.2d 612, where the facts constituting the claimed defense were
specifically set forth.
[Headnote 5]
Because of such lack of harmony, we deem it proper to announce our view regarding
acceptable procedures to satisfy the requirement that a meritorious defense be shown. They
are: (1) the fact testimony or affidavit of one possessing testimonial qualifications, which
factual information, if true, would tend to establish a defense to all or part of the claim for
relief asserted; or (2) the opinion of counsel for a party, based upon facts related to him
(without setting forth such facts), that a meritorious defense exists to all or part of the claim
for relief asserted; or (3) the tendering of a responsive pleading in good faith, with the
moving papers, which responsive pleading, if true, would tend to establish a meritorious
defense to all or part of the claim for relief asserted; or (4) any combination of the above.
[Headnote 6]
(3) Finally we mention, as a proper guide to the exercise of discretion, the basic underlying
policy to have each case decided upon its merits. In the normal course of events, justice is
best served by such a policy. Because of this policy, the general observation may be made that
an appellate court is more likely to affirm a lower court ruling setting aside a default
judgment than it is to affirm a refusal to do so. In the former case a trial upon the merits is
assured, whereas in the latter it is denied forever.
the merits is assured, whereas in the latter it is denied forever. The court's language in the
early case of Howe v. Coldren, 4 Nev. 171, 175-176, is especially apt: Running over the
New York digest, we find several cases where the appellate court has held that it would
reverse the ruling of a nisi prius court in refusing to set aside a default; but we do not see a
reference to a single case where an order setting aside a default has been reversed. Certainly
there are strong reasons why an appellate court should interfere in the one case and not in the
other. If there is a refusal to set aside a default, a ruinous judgment may be sustained against a
party who, upon hearing, might have interposed a perfectly good defense. By sustaining the
default, he would forever be debarred the right of a hearing. If, then, a nisi prius court refuses
to set aside a default when a party shows with reasonable certainty that he has a good defense,
and he has only been guilty of carelessness and inattention to his business, but no willful or
fraudulent delay, it would be highly proper even for an appellate court to come to his relief if
the lower court refused it. But when the default has been set aside the case is far different. In
such case, if the plaintiff has a good cause of action and clear proof of his demand, he could
generally try his case in the court below and obtain another judgment in less time, and with
far less expense, than he could bring his case to this court. In fine, if the plaintiff has a good
case there is no necessity of appealing. If he has a bad one, this court ought not to be very
anxious to help him keep an advantage he has obtained, not through the justice or strength of
his cause, but by the accidental blunder of his opponent.
It appears to us it would have to be an extreme case, when this court would reverse an
order setting aside a default. Does the case on hearing present any such extraordinary
circumstances as to call for our interposition? * * *
With these guides in mind, we turn to the instant case. The record shows that defense
counsel has prepared an answer to plaintiff's complaint but had withheld filing it because
another case was pending between the same parties involving other provisions of the same
lease and agreement, and discussions as to all matters in dispute had been carried on.
the same parties involving other provisions of the same lease and agreement, and discussions
as to all matters in dispute had been carried on. Consequently counsel assumed that a default
would not be taken. The affidavit of plaintiff's counsel in opposition asserts that no
conversation had occurred between counsel regarding the matters involved in this particular
case after it had been commenced; that he did not know that a particular lawyer would be
representing the defendant in this case; that nothing occurred to give anyone the impression
that a default would not be taken if a responsive pleading was not timely filed. We do not
view the opposing affidavits to be in basic contradiction, for the negotiations regarding the
disputed lease provisions involved in this action to which defense counsel alluded may have
occurred before suit was filed. In any event, each counsel is a respected member of our bar,
and each appears to have had reasonable cause to believe in the position he has assumed in
this matter.
[Headnote 7]
Prompt action was taken to set aside the judgment. The motion was filed the same day
counsel learned judgment had been entered, and only one day after its entry. There is no
indication of an intent to delay the case. To the contrary, the inference is that litigation of this
case and the other pending matter between the same parties might be avoided by settlement.
Bad faith is not present in any degree. Admittedly, defense counsel should have caused an
appearance to be entered within the time allowed, or secured a written stipulation extending
time. Though his failure to do so is neglect, it is excusable in view of the guides mentioned.
[Headnote 8]
Plaintiff-respondent contends that a meritorious defense was not shown and that the ruling
below should, therefore, be upheld. As noted, this action is for declaratory relief. The
existence of a genuine controversy as to the correct construction to be accorded certain
provisions of the lease and agreement, and the construction each side urges, was alleged in
the complaint. The very nature of the action admits the possibility that the defendant's
construction might be proper {though not believed to be) and seeks a binding court
declaration of rights.
nature of the action admits the possibility that the defendant's construction might be proper
(though not believed to be) and seeks a binding court declaration of rights. To this extent, a
defense, perhaps meritorious, though not believed to be, is acknowledged by the complaint
itself. In any event, the defendant's answer presented with its motion, admits the existence of
a genuine controversy, denies material averments of the complaint, and pleads facts and
contentions which, if true, will effectively controvert the construction asserted by plaintiff.
The meritorious defense required by Nevada case law was shown.
Briefly, the controversy disclosed by the pleadings is twofold. Plaintiff contends that it
may sublet any casino (except the one located in the building called the New Frontier)
without retaining a majority control of the sublease. The predicate for its contention is that
only the New Frontier casino was in existence when the lease was made, and that the
provision thereof, Lessee shall have no restriction on sub-letting, save and except as to the
casino, and in the event the lessee shall determine to sublet the casino, it may do so, provided,
however, Lessee retains a majority control of said sub-lease, does not apply to other casinos
now on the demised premises. The defendant contends the contrary.
The second area of controversy concerns the claimed right of plaintiff to raze at its own
expense one or more buildings on the premises, and to replace them with new, modern and
more valuable, structures with additional rooms, all without defendant's consent. On the other
hand, the defendant insists that the demolition of buildings is not permitted by the lease; that
only the construction of additional rooms is authorized, and that its prior consent thereto is
required.
The lease and agreement is not contained in the record on appeal. Certain of their
provisions are set forth in the pleadings. Those provisions are alleged to be in need of
construction. If such allegation is true, extrinsic evidence will be needed to resolve the
dispute. Both sides should be heard.
We conclude that the lower court has ignored clearly established guides for the exercise of
its discretion; and find an abuse thereof. Its order denying defendant's motion to set aside the
default judgment is reversed. The district court is directed to set aside the default and
judgment and permit defendant to answer upon such terms as may be just and reasonable. No
costs are allowed.
____________
79 Nev. 159, 159 (1963) Hansen v. Collett
GWEN HUSTON HANSEN, Appellant, v.
HUGH S. COLLETT, Respondent.
No. 4562
April 4, 1963 380 P.2d 301
Appeal from judgment of the Fourth Judicial District Court, Elko County; Taylor H.
Wines, Judge.
Action against physician for damages for his negligent failure to X-ray the plaintiff's left
arm and pelvis which had been fractured in an automobile accident. The trial court entered
summary judgment for the physician and the plaintiff appealed. The Supreme Court, Badt, C.
J., held that the plaintiff by executing a release in favor of a third party for his negligence
relating to the automobile accident did not thereby release the physician from his liability.
Leo J. Puccinelli, of Elko, and Leonard W. Elton, of Salt Lake City, for Appellant.
Orville R. Wilson, of Elko, for Respondent.
1. Release.
Where third party paid $4,000 to plaintiff under terms of an instrument whereby plaintiff released third
party from all liability for negligence in automobile accident in which plaintiff sustained personal injuries
and instrument by its terms released only the third party, instrument was a release.
2. Release.
Plaintiff by releasing third party from all claims for liability for personal injuries sustained in automobile
accident did not thereby release physician for subsequent negligent failure to X-ray plaintiff's left arm and
pelvis which had been fractured in automobile accident.
3. Release.
Uniform Joint Obligations Act had no application in summary judgment proceedings in determining
whether plaintiff who had executed a release in favor of a third party for personal injuries sustained in an
automobile accident had thereby released a physician for his subsequent negligent failure to X-ray
plaintiff's left arm and pelvis which had been fractured in the accident. NRS 101.010-101.080.
4. Physicians and Surgeons.
Jury in action against physician for his negligent failure to X-ray plaintiff's left arm and pelvis which had
been fractured in an automobile accident could be instructed that plaintiff by her compromise settlement
with third party had been fully compensated for the damages directly resulting from third party's negligence
which caused accident, without stating amount of such compensation, but not including damages alleged to
be proximate result of physician's negligent diagnosis and treatment, or diagnosis and treatment of
plaintiff's injuries.
OPINION
This is an appeal from a summary judgment in favor of respondent, defendant below, in an
action against him as a practicing physician and surgeon for $40,000 damages, growing out of
his negligent failure to X-ray the left arm and pelvis of appellant, fractured in an automobile
accident resulting from the negligence of one Shelby Hatch. The basis of the summary
judgment was respondent's third defense that appellant, for the sum of $4,000, had made a
settlement with Hatch for all claims and damages in any way growing out of her personal
injuries resulting from said accident, and releasing, acquitting, and discharging Hatch
therefrom. Appellant admitted her execution of the release to Hatch, but asserted that said
settlement was made with Hatch as the result of his negligence and of no other.
Appellant fairly states the issue thus: Whether or not a release by an injured party of one
who negotiated a settlement in regard to the original injury precludes an action by the injured
person against a physician or surgeon for negligent treatment of the injury where the injured
person claims new and additional injury directly and proximately caused by the negligence
and carelessness of the physician and surgeon and further where the injured party makes
claim that there has been no compensation for the injuries received by reason of the
negligence and carelessness of the said physician and surgeon.
In pertinent part the release executed by appellant was as follows: FOR AND IN
CONSIDERATION of the payment to me/us at this time of the sum of FOUR THOUSAND
AND no/100 Dollars ($4,000.00), the receipt of which is hereby acknowledged, I/we, being
of lawful age, do hereby release, acquit and forever discharge Shelby Hatch of and from any
and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses
and compensation on account of, or in any way growing out of, any and all known and
unknown personal injuries and property damage resulting or to result from accident that
occurred on or about the 15th day of May, 1958, at or near Wells, Nevada.
I/we hereby declare and represent that the injuries sustained are or may be permanent and
progressive and that recovery therefrom is uncertain and indefinite, and in making this release
and agreement it is understood and agreed that I/we rely wholly upon my/our own judgment,
belief and knowledge of the nature, extent and duration of said injuries, and that I/we have
not been influenced to any extent whatever in making this release by any representations or
statements regarding said injuries, or regarding any other matters, made by the persons, firms
or corporations who are hereby released, or by any person or persons representing him or
them, or by any physician or surgeon by him or them employed.
It is further understood and agreed that this settlement is the compromise of a doubtful
and disputed claim, and that the payment is not to be construed as an admission of liability on
the part of Shelby Hatch, by whom liability is expressly denied.
This release contains the ENTIRE AGREEMENT between the parties hereto, and the
terms of this release are contractual and not a mere recital.
I/we further state that I/we have carefully read the foregoing release and know the
contents thereof, and I/we sign the same as my/our own free act.
WITNESS OUR hands this 30th day of January, 1961, at Provo, Utah.
Just preceding the signatures, the following appeared: CAUTION: This is a release.
READ IT before signing.
[Headnote 1]
Many of the cases have been determined with direct consideration to the nature of the
release given. We may therefore characterize the foregoing instrument at the outset. It is by its
terms a release. It is by its terms personal, and releases by its terms all further claims against
Shelby Hatch and against no one else. It does not in terms contain a reservation of the right to
seek compensation from the doctors treating appellant's injury, for negligence in such
treatment. On the other hand, it is not a satisfaction and does not purport to acknowledge full
compensation for her injuries.
Under such characterization we find two lines of authorities directly at war with each
other. Most of these authorities accord recognition to the very fine annotation appearing at 40
A.L.R.2d 1075 (1955), entitled Release of one responsible for injury as affecting liability of
physician or surgeon for negligent treatment of injury, which supersedes an earlier
annotation in 50 A.L.R. 1108, supplemented in 112 A.L.R. 553. Here we find that the cases
gathered support the following statement: By the weight of authority, a general release of the
one responsible for the releasor's original injury bars action by the injured party against a
physician or surgeon for negligent treatment of the injury.
As against such majority rule, we find much respect able authority, both in the decisions
and in the work of eminent text writers, to the effect that such a release does not of and in
itself release the attending physicians or surgeons from damages arising out of their negligent
diagnosis or treatment of the injury, unless it was the intention of the injured person so to
release them and unless the compensation received from the first tortfeasor was in full
compensation of the injury sufferedboth of such items depending upon proof and not
susceptible of determination as a matter of law, but being jury questions.
The great volume of case law on the subject prevents a consideration of all but a few of
what we consider the leading cases. As the matter is one of first impression in this state, we
are at liberty to base our decision in the instant case on the basic rules laid down by either line
of authorities. We have concluded that the later and more enlightened cases, as they have
been often characterized, though constituting a numerical minority, are the better reasoned,
and better promote the administration of justice.
The annotation in 40 A.L.R.2d lists 21 jurisdictions that have followed the majority rule
and then proceeds (id. 1079) to analyze the theories of such cases supporting the majority
rule.
There are numerous cases which discuss and support the majority rule and they include
varying reasons why each particular court supported it. Perhaps it is an oversimplification but
it appears to us that most of these reasons are in reality variations of two basic themes. (1) As
a matter of law the original tort is considered to be the proximate cause of any injuries
resulting from malpractice which occurred while treating the original injury, and
consequently the original tortfeasor is liable for both injuries. Therefore a release of the
original tortfeasor must release the physician, because if one liable for the whole claim is
released, then the entire claim must also be extinguished. Sams v. Curfman, 111 Colo. 124,
137 P.2d 1017 (1943); Keown v. Young, 129 Kan. 563, 283 P. 511 (1930); Smith v. Mann,
1S4 Minn. 4S5, 239 N.W. 223 {1951);1 Feinstone v. Allison Hospital, Inc.,
v. Mann, 184 Minn. 485, 239 N.W. 223 (1951);
1
Feinstone v. Allison Hospital, Inc., 106
Fla. 302, 143 So. 251 (1932); Wells v. Gould, et al., 131 Me. 192, 160 A. 30 (1932); Adams
v. De Yoe, 11 N.J.Misc. 319, 160 A. 485 (1932);
2
Milks v. McIver, 264 N.Y. 267, 190 N.E.
487 (1934); Hooyman v. Reeve, 168 Wis. 420, 170 N.W. 282 (1919).
3
(2) There should be
only one satisfaction for the same injury and a failure to follow the rule might enable the
injured person to recover twice for the same injury. Edmondson v. Hancock, 40 Ga.App. 587,
151 S.E. 114 (1929); Retelle v. Sullivan, 191 Wis. 576, 211 N.W. 756, 50 A.L.R. 1106
(1926);
4
Thompson v. Fox, 326 Pa. 209, 192 A. 107, 112 A.L.R. 550 (1937).
Respondent says: The split of opinion is acknowledged by all recent decisions and we
choose to quote from one which did not rule either way, but it fully recognized the situation.
He then cites Trieschman v. Eaton, 224 Md. 111, 166 A.2d 892 (1961), as follows:
Appellees' real contentions are * * * that the overwhelming weight of authority is that a
release of the original wrongdoer releases the doctor. In this last contention they are right.
* * * * *

The opinions relied on by the Trieschmans in California, Minnesota and New Jersey are
by Courts which either had not before followed the rule that the release of one concurrent or
successive tortfeasor discharged the other, or repudiated it in reaching the result that the
injured person could sue the doctor, although he had compromised his claim against the
original wrongdoer. These cases hold in essence that unless the release in terms discharges
the other tortfeasors or the amount paid for the release was intended to be and was full
satisfaction, the earlier settlement does not bar the subsequent suit.
____________________

1
Overruled in Couillard v. Charles T. Miller Hospital, Inc., infra.

2
Overruled in Daily v. Somberg, infra.

3
Overruled in Bolick v. Gallagher, infra.

4
See footnote 3.
Respondent then cites the case of Farrar v. Wolfe, 357 P.2d 1005 (Okl. 1960), as an
illustration of the modern adaptation of the majority rule. The opinion sets forth the two rules,
citing all the jurisdictions adopting the majority rule, and concludes: Without herein
evaluating the relative merits of the majority or minority view, we follow the majority rule.
We cannot reconcile ourselves, however, to using this method of disposition, in choosing to
follow one rule or the other. In like manner respondent cites eight additional cases, decided
after the A.L.R. annotation, which continue to follow the majority rule. These eight cases
however are all from states that had theretofore followed it and apparently applied the rule of
stare decisis. Such, as noted, is not the case here.
[Headnote 2]
We turn, then, to an examination of the authorities and texts supporting the opposite rule,
which we are inclined to follow.
We must preface this by noting that appellant does not controvert the statement that it is
well-settled law that the original tortfeasor is liable for the malpractice of the attending
physicians.
In Wheat v. Carter, 79 N.H. 150, 106 A. 602 (1919), plaintiff had settled with the first
tortfeasor, which settlement was pleaded as a defense to his action to recover the loss
sustained through the negligent use of an X-ray machine. Although the court granted that It
is settled in this state that the release of one joint tortfeasor is a bar to a suit against the others;
and that is also true as to the effect of a release when the releasor's loss is caused by the
concurrent misconduct of the releasee and others * * *, it held that such defense was not
available. The court held that it could only be so if the plaintiff had been fully compensated
for the loss sought in the second suit. It rejected the contention that plaintiff could not recover
in the second suit because the original tortfeasor was originally liable for the entire loss; that
inquiry must be made as to the facts of his claim and the extent of his recovery against the
first tortfeasor; that these issues thus raised must be determined by trial. "* * * it is
permissible for him in this proceeding to show just what he was claiming when he settled
with [the first tortfeasors who were not] * * * parties to the release.
first tortfeasor; that these issues thus raised must be determined by trial. * * * it is
permissible for him in this proceeding to show just what he was claiming when he settled
with [the first tortfeasors who were not] * * * parties to the release. In other words, the
release in and of itself is not a bar to the defendant's suit against the plaintiffs, but, if he has
already been compensated for the loss he is seeking to recover * * * that fact is a bar to the
suit.
In Ash v. Mortensen, 24 Cal.2d 654, 150 P.2d 876 (1944), plaintiff, injured in an
automobile accident and having recovered judgment against the other motorist for $15,000
and having satisfied such judgment upon the payment of $5,753.22, brought a malpractice
action against the doctors, alleging negligent treatment of her injuries. The release was
pleaded as a bar, and the lower court entered judgment in favor of the defendant doctors.
Gibson, C. J., speaking for the Supreme Court of California, in reversing, said:
Plaintiff urges that under general principles of tort law the release of Wubben in
consideration of part payment of the judgment against him does not bar this malpractice
action against defendants who allegedly were negligent in treating the injuries inflicted by
Wubben. Defendants, on the other hand, contend that since a person should not be twice
compensated for the same injury and since plaintiff could have recovered compensation for
damages resulting from the alleged malpractice in the action against Wubben, the release of
Wubben and the satisfaction of the judgment in that action are a complete defense to this
action.
It is settled that where one who has suffered personal injuries by reason of the tortious act
of another exercises due care in securing the services of a doctor and his injuries are
aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer
as a proximate cause of the damages flowing from the subsequent negligent medical
treatment and holds him liable therefor. [citations] But the fact that plaintiff could have
obtained full compensation for all damages in the action against Wubben, the original
wrongdoer, does not establish that she has been so compensated.
wrongdoer, does not establish that she has been so compensated. The independent and
successive acts of Wubben and defendant doctors, differing in time and place of commission
as well as in nature, produced two separate injuries and gave rise to two distinct causes of
action. Plaintiff was at liberty to sue Wubben for damages resulting from the original injury
alone, and to sue defendants for damages resulting from the additional injury or aggravation,
in separate actions; and the order in which such actions might be brought would be
immaterial. [citations] The plea of former recovery, therefore, involves a consideration of
what the injured party did in fact recover in her action against the original wrongdoer rather
than what she could have recovered therein. Wheat v. Carter, 79 N.H. 150, 106 A. 602;
Parkell v. Fitzporter, 301 Mo. 217, 256 S.W. 239, 29 A.L.R. 1305, supra; Staehlin v.
Hochdoerfer, Mo. Sup. 235 S.W. 1060; cf. Smith v. Coleman, 46 Cal.App.2d 507, 116 P.2d
133; Viita v. Dolan (Viita v. Fleming), 132 Minn. 128, 155 N.W. 1077, 1080, L.R.A. 1916D,
644, Ann.Cas. 1917E, 678.
Defendants insist, however, that without regard to the evidence introduced in the action
against Wubben, and thus without regard to the nature and extent of the recovery therein, the
release of Wubben from all liability operated to discharge them from liability for any
negligent aggravation of the original injury. In their view, the amount of damages sustained
by plaintiff, the sum received as consideration for the release, and the relation between the
two, the intention of the parties, and the fact that Wubben and defendant doctors are
independent rather than joint wrongdoers, are immaterial. In other words, defendants seek to
substitute a rule of law for the factual defense of double recovery. The rule contended for has
been adopted in a number of jurisdictions. [citations] But the conclusion that the release of
the original wrongdoer releases the attending doctor from liability for malpractice has been
reached by treating the independent wrongdoers as joint tort feasors or applying, by analogy,
the common-law rule of unity of discharge affecting joint tort feasors. The common-law rule
of unity of discharge is based on the concept of the unity of a cause of action against joint
tort feasors, and its application to the facts of the present case would give the
independent tort feasors herein an advantage wholly inconsistent with the nature of their
liability.
rule of unity of discharge is based on the concept of the unity of a cause of action against joint
tort feasors, and its application to the facts of the present case would give the independent tort
feasors herein an advantage wholly inconsistent with the nature of their liability. Moreover,
the rule contended for by defendants would stifle compromises, favored in the law, inasmuch
as the injured person could not effect a settlement with the original wrongdoer without
surrendering his separate cause of action against one who, by his independent tortious act,
aggravated the injury.
A release of a cause of action against a wrongdoer is not a release of a separate or distinct
cause of action against another independent wrongdoer. It follows that the mere release of
Wubben from liability did not result in the discharge of the cause of action against
defendants. We are of the opinion that a release of the original wrongdoer should release an
attending doctor from liability for aggravation of the injury if there has been full
compensation for both injuries, but not otherwise.' Prosser, Joint Torts and Several Liability,
25 Cal.L.Rev. 413, 435.
The same rule was applied in Dickow v. Cookinham, 123 Cal.App.2d 81, 266 P.2d 63, 40
A.L.R.2d 1066 (1954), where the court said: While the release by its terms releases Kelly
from all claims for the injuries caused by defendants, its language does not purport to release
defendants. * * *
In Couillard v. Charles T. Miller Hospital, Inc., 253 Minn. 418, 92 N.W.2d 96 (1958),
plaintiff, having sustained an injury as the result of a fall on a bus, compromised with the
railway company which paid her $10,000 in return for a release discharging the company
from all claims and demands of every kind and nature and for all injuries and damages and all
that ever may be resulting or ever developing at any time in the future from such accident and
injuries. The release was pleaded as a special defense. Plaintiff offered to prove that the
second action in no way involved double recovery. The court referred to its earlier decisions
holding to the majority rule. It said however: This arbitrary approach to a consideration of
the effect of a release goes beyond any reasonable necessity to honor the principal of law
that a litigant should not recover twice for the same injury.
arbitrary approach to a consideration of the effect of a release goes beyond any reasonable
necessity to honor the principal of law that a litigant should not recover twice for the same
injury.
* * * * *
We think that considerations of practical justice require us to say that a plaintiff should
not be compelled to surrender his claim for relief against a wrongdoer unless he has
intentionally done so, or unless he has received full compensation for his claim. * * * [T]hese
are questions of fact to be resolved by the jury.
* * * * *
We, accordingly, hold that, in so far as [the previous cases] do not permit parol proof that
a party to a release never was compensated for and never intended to release claims based on
injuries caused by a subsequent tortfeasor for which the releasee is also liable because of the
rules of proximate cause, those decisions are overruled.
In Bolick v. Gallagher, 268 Wis. 421, 67 N.W.2d 860 (1955), following an automobile
accident, appellant's decedent was admitted to a hospital and there died. The estate settled the
claim against the original tortfeasor. This was pleaded as a defense to an action against the
hospital for damages for its negligence. The Supreme Court of Wisconsin said: In many
cases it is possible to separate injuries caused to a person by the negligence of consecutive
tort-feasors. However, it is conceivable that injuries caused to a person by the negligence of
consecutive tort-feasors may be impossible of division or separation. * * * [W]ere it to be
determined upon the trial that any injury sustained by the wife was indivisible, and that both
[the driver] and the defendant physicians as consecutive tort-feasors contributed to the single
injury, the liability would be joint and several, and each would be responsible for the entire
amount of the damages resulting from the single injury. In the event that upon the trial it shall
be determined that any of the injuries sustained by the wife were single and indivisible and
that the negligence of both [the driver] and the defendant physicians contributed thereto,
then the payment heretofore made by [the driver] and his insurer to the plaintiff will
inure to the benefit of the defendants for the same damages caused by both.
of both [the driver] and the defendant physicians contributed thereto, then the payment
heretofore made by [the driver] and his insurer to the plaintiff will inure to the benefit of the
defendants for the same damages caused by both.
* * * * *

Whether they shall become entitled to credit for payments made under the releases
depends upon findings made at the trial with reference to the principles discussed herein.
In Daily v. Somberg, 28 N.J. 372, 146 A.2d 676, 69 A.L.R.2d 1024 (1958), plaintiff,
injured in an automobile accident, sued Dealers Transport for all injuries resulting from their
negligence. A mistrial resulted. While awaiting retrial, he sued the doctors who had treated
him, alleging negligence, then settled with Dealers Transport for $139,000, and executed a
release, releasing that company from all claims which he might have against it. On appeal
from an order granting summary judgment in favor of the hospital, the court said:
If the release of Dealer's Transport Company was actually intended to release the doctors,
or if the amount paid by Dealer's actually constituted full compensation for the plaintiff's
claims against Dealer's and the doctors or was accepted as such, then the plaintiff may not
fairly or equitably seek further recovery. * * * The release to Dealer's did not on its face
suggest that there was any intent to release the doctors nor did it suggest that the plaintiff
received full compensation for his injuries. On the contrary, it named only Dealer's, its
successor corporation and its employee Eliot, as the releasees and it expressly set forth that
the sum paid to the plaintiff was in settlement and compromise and without admission of
liability. * * * [W]e are satisfied that, at least here, where the release disclosed on its face that
it was given to the named releasees who had denied liability and had made payment by way
of compromise and settlement, the alleged wrongdoers, who were not parties to the release
and had made no payment towards satisfaction of the plaintiff's injuries, may fairly be
called upon to show that the release was intended to discharge them or that the plaintiff
had received full compensation."
payment towards satisfaction of the plaintiff's injuries, may fairly be called upon to show that
the release was intended to discharge them or that the plaintiff had received full
compensation.
In McKenna v. Austin, 77 U.S.App.D.C. 228, 134 F.2d 659, 148 A.L.R. 1253, plaintiff
had made a settlement with Independent Taxi Owners Association and then sued for damages
for personal injuries incurred in a collision of the taxicab in which she was a passenger, with
an automobile operated by the defendant's employee. The defendant pleaded as a special
defense the release of Independent. The sole question on the appeal was whether the first
settlement agreement operated to discharge the defendant. The court referred to the more
generally prevailing rule adopted in Kaplowitz v. Kay, 63 App.D.C. 178, 70 F.2d 782, to the
effect that the release of one joint tortfeasor discharges the others. As against this, plaintiff
asserted that the instrument was not a release from substantive liability but merely a covenant
not to sue. Plaintiffs also asserted that the cab company and the defendant were not joint
tortfeasors but acted independently and that the court should have taken evidence and decided
this question as a matter of fact and that the only effect of the first settlement was to apply it
as reducing pro tanto the total damage. The court, after disposing of so-called distinctions
between a release and a covenant not to sue, then attacks the majority rule as follows:
The rule's results are incongruous. More often than otherwise they are unjust and
unintended. Wrongdoers who do not make or share in making reparation are discharged,
while one willing to right the wrong and no more guilty bears the whole loss. Compromise is
stifled, first, by inviting all to wait for the others to settle and, second, because claimants
cannot accept less than full indemnity from one, when doing that discharges all. Many, not
knowing this, accept less only to find later they have walked into a trap. The rule
shortchanges the claimant or overcharges the person who settles, as the recurring volume and
pattern of litigation show.
and pattern of litigation show. Finally, it is anomalous in legal theory, giving tortfeasors an
advantage wholly inconsistent with the nature of their liability.
5

In Black v. Martin, 88 Mont. 256, 292 P. 577 (1930), a case involving joint tortfeasors, the
Supreme Court of Montana treats of the same subject matter and agrees with Professor
Williston, Dean Wigmore, and Professor Throckmorton in condemning the majority rule.
As each tort-feasor is liable for the entire damage, if one sees fit to secure acquittance for
himself by compromise with the injured person, he does no wrong to those who are jointly
liable with him. How can they complain if he has paid part of the damage? They are not
prejudiced by the settlement, but on the contrary are benefited, for each is entitled to have the
amount of any judgment rendered against him reduced by the amount paid by his
cotort-feasor.
The law favors compromises. This is especially true in tort actions, not only because they
relieve the labors of courts, and avoid expense, but also because, where the parties agree
between themselves upon a settlement of the claim, the result reached is frequently a more
equitable adjustment than is possible to be had in a court of law. 10 Virginia Law Review,
72. In support the court quotes at length from Carey v. Bilby, 63 C.C.A. 361, 129 F. 203.
Hicklin v. Anders, 201 Or. 128, 253 P.2d 897, 269 P.2d 521 (1953), while in several
respects distinguishable from the facts of this case, rejects the majority rule and approves the
cases adopting the minority rule, citing Pennington v. Bevering, 17 S.W.2d 772 (Tex.Com.
App.); Black v. Martin, 88 Mont. 256, 292 P. 577, 581; and Dean Wigmore's famous and
often-quoted statement that the majority rule is a surviving relic of the Cokian period of
metaphysics.
____________________

5
The court spelled out a formula in the second acting for apportioning the recoveries in the first action. The
dissenting opinion criticizes such formula. But whether or not the suggested formula should be adopted in any
given case, avenues are available to the court in all cases to prevent a double recovery, which is one of the main
supports of the foundation for the majority rule.
Merrill, Circuit Judge (formerly chief justice of this court), speaking for the United States
Circuit Court of Appeals, Ninth Circuit, in Rudick v. Pioneer Memorial Hospital, 296 F.2d
316 (1961), approves Hicklin v. Anders.
Prosser treats the subject in this manner:
As to the release itself, the common law rule has been changed by statute in a number of
states. Without a statute a strong minority of the courts have held that the release does not
discharge the second tort-feasor if it provides in terms that it shall not do so. Some of them
even have recognized an accompanying oral agreement to that effect, and have met the
objection of the parol evidence rule with the argument that the second tortfeasor is not a party
to the instrument. Still others have accomplished the same result by construing a release with
reservation of rights against others as nothing more than a covenant not to sue.
The only desirable rule would seem to be that a plaintiff should never be compelled to
surrender his cause of action against any wrongdoer unless he has intentionally done so, or
unless he has received such full compensation that he is no longer entitled to maintain it.
Where there has been such full satisfaction, or where it is agreed that the amount paid under
the release is so received, no claim should remain as to any other tortfeasor; but these are
questions of fact, and normally to be determined by the jury, where the amount of the claim is
unliquidated. * * * Prosser, Torts 245 (2d ed. 1955).
Professors Harper and James seem to be in complete agreement with Prosser. 1 Harper and
James, The Law of Torts 10.1, p. 711 (1956).
Both Prosser and Harper and James properly indicate the clear distinction between a
release and a satisfaction, and we agree with their conclusion that the confusion of many of
the courts is due to a failure to recognize this distinction. They also treat of a distinction
between a release and a covenant not to sue. Our conclusion in the instant case could
probably be supported by treating the release as a covenant not to sue in accordance with
the reasoning contained in some of the cases.
conclusion in the instant case could probably be supported by treating the release as a
covenant not to sue in accordance with the reasoning contained in some of the cases.
However, we do not choose to take this approach.
In support of our adoption of what is referred to as the minority rule or the modern
rule or the more enlightened rule we might have justifiably simply rested our conclusion
upon the following: We have here two successive torts, the first by Hatch, the second by the
doctor. The torts were neither joint nor concurring. They were distinct, separate and
independent. No pertinent logical conclusion can be drawn from the statement that the
doctor's alleged tort would not have occurred but for' Hatch's tort. Plaintiff settled with
Hatch and with him alone and with no one else, for the injuries negligently caused by him,
and by him alone and by no one else. This is the clear purport of the release' executed by
appellant. No double recovery would follow. We reject the contrary conclusion (based on a
legal concept that has in our opinion been thoroughly discredited) that because the original
tort is the proximate cause of the added damages resulting from the negligence of the doctor,'
and plaintiff could have recovered same in an action against Hatch, her release of Hatch
released the doctor.
[Headnote 3]
Respondent seeks to sustain the summary judgment by reason of the Uniform Joint
Obligations Act, NRS 101.010-101.080. Appellant asserts that the act has no application,
because the torts here involved were separate and distinct torts. 101.020 defines obligation
as including liability in tort, and 101.030 defines the effect of a judgment against one or more
of several obligors, or against one or more joint, or joint and several obligors, as not
discharging a co-obligor not a party to the proceedings wherein the judgment was rendered.
The last-named section does not apply here, as there were no proceedings and there was no
judgment. Section 101.040 merely provides that the amount or value of any consideration
received by the obligee from one or more of several obligors or of joint, or joint and several
obligors, in whole or partial satisfaction, shall be credited to the extent of the amount
received.
from one or more of several obligors or of joint, or joint and several obligors, in whole or
partial satisfaction, shall be credited to the extent of the amount received. Section 101.050
provides for a release or discharge of one obligor, but reserving in writing the right to proceed
against co-obligors, and subject to the provisions of 101.040, as noted above, and in the
absence of a reservation of rights, shall discharge co-obligors only to the extent provided in
NRS 101.060, which follows. That section then provides, under varying circumstances which
on their face require the proof of facts, as to how a payment made by the first obligor shall be
apportioned with reference to claims against co-obligors. Accordingly, the act cannot of itself
support a summary judgment.
In remanding the case for trial it will be well to define the issues to be tried by the court.
(1) Our construction of the release leaves no issue as to the intent of the plaintiff in
executing same.
(2) Our rejection of the majority rule disposes of the special defense that plaintiff, by
releasing Hatch, thereby released the defendant.
(3) The Uniform Joint Obligations Act (NRS 101.010-101.090) has no application to the
issues.
[Headnote 4]
(4) As to compensation for her injuries, the jury may be instructed that plaintiff, by her
compromise settlement with Hatch, has been fully compensated for the damages directly
resulting from the latter's tort (without stating the amount of such compensation), but not
including damages alleged to be the proximate result of defendant's alleged negligent
diagnosis and treatment, or diagnosis or treatment of her injuries.
(5) The issues, then, remaining to be tried will be the questions of defendant's negligence,
if any, and the damages to plaintiff, if any, proximately caused thereby.
Reversed with costs and remanded.
____________
79 Nev. 176, 176 (1963) Thran v. District Court
EARNHART THRAN, Administrator of the ESTATE OF ROBERT W. ZIMMERMAN,
Deceased, and H. A. ZIMMERMAN, Petitioners, v. FIRST JUDICIAL DISTRICT COURT
IN AND FOR ORMSBY COUNTY, Respondent.
No. 4608
April 9, 1963 380 P.2d 297
Original proceeding in mandamus.
Proceeding for writ requiring District Court to dismiss action for want of prosecution. The
Supreme Court, Badt, C. J., held that under rule providing that whenever plaintiff has failed
for two years after action is filed to bring it to trial, court may in its discretion dismiss it, but
that when it is not brought to trial within five years, court, in absence of its stipulation
extending time, shall dismiss it, exercise of discretion was not involved where case had not
been brought to trial within five years.
Writ issued.
Vargas, Dillon & Bartlett and Alex. A. Garroway, all of Reno, for Petitioners.
Laxalt, Ross & Laxalt, of Carson City, for Respondent.
1. Mandamus.
Writ of mandate to compel dismissal is appropriate remedy after expiration of time prescribed by rule
providing for dismissal of action not brought to trial within five years after filing thereof except where
parties have filed stipulation extending time. NRCP 41(e).
2. Dismissal and Nonsuit.
Under rule providing that whenever plaintiff has failed for two years after action is filed to bring it to
trial, court may in its discretion dismiss it, but that when it is not brought to trial within five years, court, in
absence of its stipulation extending time, shall dismiss it, exercise of discretion was not involved where
case had not been brought to trial within five years. NRCP 41(e).
Duty rests upon plaintiff to use diligence at every stage of proceeding to expedite his case to final
determination.
Words and conduct short of written stipulation cannot constitute estoppel in cases involving rule
providing for dismissal of action not brought to trial within five years after filing thereof except where
parties have filed stipulation extending time. NRCP 41(e).
It is not incumbent upon defendant in moving for dismissal of action for want of prosecution to show
prejudice resulting from delay, and such prejudice will be presumed. NRCP 41(e).
6. Constitutional Law.
Giving mandatory effect to rule providing for dismissal of action not brought to trial within five years
after filing thereof except where parties have filed stipulation in writing that time may be extended does not
constitute violation of due process in denying parties right to preserve and enforce their rights. NRCP
41(e).
Constitutional right is subject to reasonable statutory limitations to time within which to enforce it.
OPINION
In the respondent court in an action entitled Peggy Thies, Administratrix of the Estate of
Willis B. Adkisson, Jr., deceased, Plaintiff, v. Earnhart Thran, Administrator of the Estate of
Robert W. Zimmerman, deceased, H. A. Zimmerman and Estate of Bertie A. Moore,
deceased, Defendants, Thran, as administrator, moved for dismissal of the action under
NRCP 41(e), which reads in pertinent part as follows: The court may in its discretion
dismiss any action for want of prosecution on motion of the defendant and after due notice to
the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such
action to trial. 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.
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 respondent court
in denying the motion said: This court feels that it was impossible, impracticable, or futile'
to bring this matter to trial for a period of 16 months within the 5-year period, and that the
5-year period set by NRCP 41(e) should be extended for 16 months from and after November
7, 1962. The respondent court thus based its decision on the terms used in Christin v.
Superior Court, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153, discussed infra.
[Headnote 1]
Petitioners then filed their petition for a writ of mandamus requiring the respondent court
to dismiss said action for failure to bring it to trial in accordance with the provisions of the
rule. Remedy by mandamus is available. J. C. Penney Co. v. Superior Court, 52 Cal.2d 666,
343 P.2d 419, and cases therein cited.
The main action grew out of a collision November 11, 1955, of a car jointly registered in
the names of H. A. Zimmerman and Robert W. Zimmerman and driven by Bertie A. Moore,
and a car owned and driven by Willis B. Adkisson, Jr., in which Adkisson, Robert W.
Zimmerman and Bertie A. Moore were killed. Complaint was filed and summons issued
November 7, 1957, just four days prior to expiration of the statute of limitations. Summons
was served on H. A. Zimmerman, a resident of Montana, by service upon the director of the
Department of Motor Vehicles of Nevada, NRS 14.070(1). On December 23, 1958, this court,
on application of H. A. Zimmerman, issued its writ prohibiting respondent court from
proceeding further against him. Zimmerman v. District Court, 74 Nev. 344, 332 P.2d 654.
Such proceeding in no way affected the estate of Robert W. Zimmerman or the estate of
Bertie A. Moore. On April 10, 1959, Thran, at the instance of the original plaintiff, was
appointed public administrator of Douglas County, and on said date, as such public
administrator was appointed administrator of the estate of Robert W. Zimmerman, deceased.
Later that month Peggy Thies, administratrix of the estate of Willis B. Adkisson, Jr.,
deceased, filed a claim with such administrator for damages arising out of the accident of
November 11, 1955.
that month Peggy Thies, administratrix of the estate of Willis B. Adkisson, Jr., deceased, filed
a claim with such administrator for damages arising out of the accident of November 11,
1955. The claim was rejected. On October 6, 1961, Thran, administrator, was substituted for
Robert W. Zimmerman. On November 22, 1961, Thran, as administrator, filed his answer.
On January 4, 1963, petitioners and H. A. Zimmerman moved for dismissal under NRCP
41(e), which motion was denied.
In opposing the issuance of the writ upon the ground that it is not mandatory under any and
all circumstances and that the trial court properly exercised its discretion in refusing to apply
the rule, respondent first refers to Astorga v. Ishimatsu, 77 Nev. 30, 359 P.2d 83, in which the
legislative history of the rule is recited, and which refers to Harris v. Harris, 65 Nev. 342, 196
P.2d 402, supporting the presumption that the rule was adopted by the Nevada legislature
with the construction given it by the California courts before the rule's adoption in Nevada in
1943. However, this court said in Harris v. Harris (citing California cases): The last sentence
of the statute makes it mandatory for the court to dismiss an action if not brought to trial
within three years from the filing of the remittitur. In Harris the only question involved was
whether a court possessed the inherent power to dismiss within the minimum period
designated by the statute. And in Astorga v. Ishimatsu this court affirmed the district court's
dismissal under the 5-year provision.
However, respondent's main support of the lower court's refusal to follow the mandatory
language of Rule 41(e) is the case of Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205,
112 A.L.R. 1153, which case is stated by respondent to be the fountain and source for almost
all later decisions. In the Christin case, however, the court recited that the basis of the
plaintiff's position was that while the appeal from the order changing venue was pending
in the District Court of Appeal, it was not possible for the plaintiff to bring the cause to
trial * * *. In our view this contention is sound * * *."
is sound * * *. It later repeated the issue before the Supreme Court of California using this
language: We are thus led to a consideration of the question whether it was in fact possible
for plaintiff to have brought the cause to trial during the time the appeal was pending.
However, the court then at great length outlines the difficulties confronting the plaintiff in
bringing the case to trial and then decided the case, not upon the question of impossibility
but on the grounds of impracticability and futility, and held that the time consumed by
the appeal from the order changing venue was not to be counted in the 5-year period specified
in the statute. We decline to be bound by the dictum thus expressed, as we would decline to
be bound by further dictum which would except from the statute such reasons as
unreasonableness, difficulty, hardship, inexpediency or other similar conditions not
appearing in the statute.
Nor is such adversion to a California case construing the California statute necessary to
our purpose of constructing or interpreting our own statute, now Rule 41(e). In Ronnow v.
City of Las Vegas, 57 Nev. 332, 65 P.2d 133, this court stated: [W]e must bear in mind that
our chief concern is to learn the intent of the legislature. [citing cases] Rules for statutory
construction are merely aids in the ascertainment of the legislative intent.
In Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617, we said, in treating the language of a
venue statute as mandatory rather than discretionary: This court has never held that the rule
of statutory construction whereunder the interpretation by the highest court of a sister state, of
a statute of that state copied by us, is strongly persuasive, is absolutely controlling. See
Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49. In the last-mentioned opinion, a tax case,
we upheld the curative provisions of our tax statute, though California, from which state the
statute was copied, had held contra. We acknowledged the persuasive effect of the California
holding, but held that it was not conclusive. In State v. Ducker, 35 Nev. 214, 127 P. 990, this
court said: When the legislative intent can be ascertained, that must govern, and all rules
of construction are but mere aids in the ascertainment of such intent."
legislative intent can be ascertained, that must govern, and all rules of construction are but
mere aids in the ascertainment of such intent. In State ex rel. Baker v. Wichman, 52 Nev. 17,
24, 279 P. 937, we said: [W]hether a word is to be construed as mandatory or directory
depends upon the intention to be gathered from the statute, if such intention can be
ascertained. See also State v. Shilling, 190 Okl. 305, 123 P.2d 674; McKenzie v. Missouri
Stables, 225 Mo.A.R. 64, 34 5.W.2d 136; Kenney v. Wolff, 102 Cal.App.2d 132, 227 P.2d
285. In Smith v. Langston, 204 Okl. 444, 230 P.2d 736, the court used the following apt
language: Rules of statutory construction are never used to create, but only to remove, a
doubt.
[Headnote 2]
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 is not
involved. Miller & Lux v. Superior Court, 192 Cal. 333, 219 P. 1006.
[Headnotes 3, 4]
Respondent further contends that the doctrine of estoppel has application to proceedings of
this nature; that if the defendant rests on his oars and permits the case to remain untried he
should not be heard to complain; and that in any event he must show prejudice. But it is the
plaintiff upon whom the duty rests to use diligence at every stage of the proceeding to
expedite his case to a final determination. J. C. Penney Co. v. Superior Court, 336 P.2d 545
(Cal.App. 1959). The defendant is required only to meet the plaintiff step by step as the latter
proceeds. Words and conduct, short of a written stipulation, cannot in cases involving this
statute constitute an estoppel. Miller & Lux v. Superior Court, 192 Cal. 333, 219 P. 1006;
Christin v. Superior Court, supra.
[Headnote 5]
Nor is it incumbent on the defendant to show prejudice resulting from the delay. Prejudice
is presumed. Northern Ill. Corp. v. Miller, 78 Nev. 213, 370 P.2d 955. Accord: Jackson v. De
Benedetti, 39 Cal.App.2d 574, 103 P.2d 990; State v. Superior Court, 3 Wash.2d 702, 102
P.2d 246.
[Headnotes 6, 7]
Respondent further contends that to give the rule mandatory effect would deny petitioners
the right to preserve and enforce their rights, and thus violate the due process clause.
However, a constitutional right is always subject to reasonable statutory limitations of this
nature. Muller v. Muller, 179 Cal.App.2d 815, 4 Cal.Rptr. 419.
Let the writ issue.
____________
79 Nev. 182, 182 (1963) Charleston Hill Nat'l Mines, Inc. v. Clough
CHARLESTON HILL NATIONAL MINES, INC.,
Appellant, v. MARY L. CLOUGH, Respondent.
No. 4548
April 10, 1963 380 P.2d 458
Appeal from the Sixth Judicial District Court, Humboldt County; Merwyn H. Brown,
Judge.
Action on promissory notes. The trial court rendered judgment for the payee and the maker
appealed. The Supreme Court, McNamee, J., held that notes reciting that actual consideration
was money advanced by payee to maker and stating that notes were given to satisfy
indebtedness from such advances reflected their real consideration on their faces
notwithstanding additional recitals of for value received, so that maker could not, claim
lesser amount, or no amount, was due, in absence of fraud or mistake, or proof of discharge
or partial discharge.
Affirmed.
Brian L. Hall, of Reno, for Appellant.
Vargas, Dillon & Bartlett, and Alex. A. Garroway, of Reno, for Respondent.
1. Evidence.
That agreed consideration for note is set out in note itself rather than in separate contemporaneous written
agreement does not change rule barring parol evidence as to other consideration.
2. Evidence.
While nothing in Negotiable Instruments Law nor parol evidence rule as between parties precludes proof
of no consideration or failure of consideration in suits on notes which contain bare recital of consideration
in words for value received, rule is otherwise where true or actual consideration is set forth in note, in
provisions of contractual nature, and, in such cases, such proof is inadmissible. NRS 92.001 et seq.
3. Contracts.
Contracts between maker and payee, represented by promissory notes, became complete upon payee's
acceptance which was evidenced by her action to enforce payment.
4. Evidence.
On payee's acceptance of promissory notes, she would be precluded from introducing parol evidence to
show that her advances, which were stated consideration for notes, were in excess of amounts stated
therein.
5. Evidence.
Notes reciting that actual consideration was money advanced by payee to maker and stating that notes
were given to satisfy indebtedness from such advances reflected their real consideration on their faces
notwithstanding additional recitals of for value received, so that maker could not, in defending suit on
notes, claim lesser amount, or no amount, was due, in absence of fraud or mistake, or proof of discharge or
partial discharge. NRS 92.001 et seq.
OPINION
Respondent sued appellant in the court below on two promissory notes executed to her as
payee, one dated September 23, 1957, in the sum of $43,548.36, and the other dated May 22,
1958, in the sum of $2,750.
Each note was signed:
Charleston Hill National Mines, Inc.
By: Mary L. Clough, President
By: Leon R. Grantz, Vice President
Attest: John F. Link, Secretary.
In its amended answer, Charleston Hill sets up as an affirmative defense that there was no
consideration therefor and that the notes were not to the best interests of the defendant
corporation and are therefore void. As a separate defense, Charleston Hill alleges that there
are setoffs against Clough's claims.
The notes are identical except as to the amount, date, and recital of the actual
consideration therefor, and each commences with the words For value received.
The note of September 23, 1957, recites:
This note is issued to the payee in consideration of amounts of money advanced and
loaned to the maker by payee over a period of several years past, the receipt whereof is
specifically acknowledged and the acts of the maker in borrowing and receiving said amounts
is hereby specifically approved and ratified.
The note of May 22, 1958, recites:
This note is issued to the payee in consideration of amounts of money advanced and
loaned to the maker by payee since September 1, 1957, until May 22, 1958, the receipt
whereof is specifically acknowledged and the acts of the maker in borrowing and receiving
said amounts is hereby specifically approved and ratified.
The fact that these are not mere recitals, but are, respectively, agreementscovenants to
which the maker bound itself, will be considered later.
This is an appeal from a judgment on a jury verdict in favor of respondent for the full
amount of the notes.
Appellant contends that it was error for the lower court not to permit evidence concerning
the consideration given for the notes. On the other hand, respondent maintains that the
allowance of such proffered testimony would violate the parol evidence rule, because each
note recites that it is issued to the payee in consideration of the amounts of money advanced
over specified periods.
The rule that parol evidence is not admissible to contradict or vary an absolute agreement
to pay money on the face of a note does not exclude evidence as between the original parties
showing a total or partial failure of consideration was recognized in Dixon v. Miller, 43
Nev. 2S0, 2S5
the original parties showing a total or partial failure of consideration was recognized in Dixon
v. Miller, 43 Nev. 280, 285, 184 P. 926, 927. The reason is obvious. The real consideration
for a promissory note is never apparent from its face. No conclusive presumption arises from
the words for value received,' and when a note is challenged for want or failure of
consideration the fact must be learned from extrinsic evidence which relates to the point of
time when the note was executed and discloses the dealings between the parties.
The court in that case was considering a note in which the real consideration did not
appear on its face. Such is not the situation in the present case. Although the notes contain the
words, for value received, the later recitals in both notes specify the actual considerations
for their execution, to wit, money advanced by the payee to the maker. The notes were given
to satisfy the indebtedness resulting from such advances. The present situation is more
analogous to that in the case of Sims v. Grubb, 75 Nev. 173, 176, 336 P.2d 759, 760, where
this court in limiting the rule enunciated in Dixon v. Miller, supra, said:
The situation here is entirely different. In this case there was more than a mere note
executed by the respondent. There was also a written agreement (escrow instructions) where
the nature of the consideration for the note was expressly set forth. It is not contended that
there was any failure of consideration so expressed, the respondent receiving not only the
deed and bill of sale but also possession of the property for approximately ten months. She
can no more contradict or vary the terms of that written agreement by oral testimony of other
and additional consideration promised for the note than could the appellant have shown by
parol evidence that respondent had agreed to pay him a greater sum for the property than that
expressed in the written agreement.
The court erred in admitting such evidence of an oral agreement as its sole purpose was
to vary the terms of the written contract of the parties.
[Headnote 1]
The fact that the agreed consideration for the note is set out in the note itself in the present
case, rather than in a separate contemporaneous written instrument as in Sims v. Grubb, does
not change the situation. Spells v. Swift & Co., 34 Ga.App. 620, 130 S.E. 593.
[Headnote 2]
Here, as stated above, the appellant did plead as a defense that the notes were given
without consideration, and although it is impossible to tell what the proffered testimony
relating thereto would have been in the absence of an offer of proof
1
we are of the opinion
that where the true consideration is stated in the note, such evidence would be inadmissible.
We are not here dealing with the situation which was present in Dixon v. Miller, supra, where
the consideration was expressed merely by the words for value received. There is nothing
in the Negotiable Instruments Act or in the parol evidence rule which as between the parties
precludes proof of no consideration or failure of consideration in suits upon notes which
contain the bare recital of consideration in the words for value received. The rule is
otherwise where the true or actual consideration is set forth in the note, constituting
provisions of a contractual nature.
In Gunter v. Hindman, 175 S.C. 436, 179 S.E. 494, 501, this distinction was pointed out as
follows.: * * * it has always been recognized as a part of the fundamental law on this subject
that parol testimony may be admitted to show a different consideration from that expressed in
a written instrument, when the statement of the consideration is intended as a mere recital,
such as one dollar and other valuable considerations,' or such as the term value received,' or
any other words indicating a mere recital as to the consideration in a written instrument such
as a deed or mortgage or note or other paper; but parol testimony cannot be admitted to
contradict the language of the written instrument in reference to the consideration, when
it is contractual in its nature."
____________________

1
In his examination of John F. Link counsel for appellant asked: Mr. Link, at this get together or gathering
on September 23rd, did Mrs. Clough show the other members of the board of directors any evidence of these
advances or loans? Objection to the question was sustained. No offer of proof was at any time made.
paper; but parol testimony cannot be admitted to contradict the language of the written
instrument in reference to the consideration, when it is contractual in its nature.
3 Corbin, Contracts 587, at 510, notes the distinction as follows:
Promissory notes and bills of exchange are seldom intended by the parties to be complete
integrations of the agreement in pursuance of which they are given. In order that they may be
negotiable, the face of the note must contain an unconditional promise to pay a sum of
money. As against a holder in due course, proof of extrinsic provisions and conditions does
not establish a good defense. This has nothing to do with the parol evidence rule.' But as
against any one not a holder in due course, proof of such extrinsic provisions and conditions
should nearly always be permitted, as is in fact done in numberless cases. At other times,
however, it has been held that offered evidence was inconsistent with the face of the note and
inadmissible. No attempt will be made here to reconcile or to distinguish these decisions. Of
course, it is possible for the parties to integrate their entire contract on the face of a
promissory note, however seldom they do so in fact.
Collins v. Shaffer, 66 Colo. 84, 179 P. 152, 153, was an action on a note by the payee
against the maker where a written agreement was executed contemporaneously with the note
and which stated that the note was in payment in full for a one-fourth interest in a certain
patent. The court considered the two instruments as forming one contract. The defense of
total failure of consideration was pleaded in the answer to the complaint and the maker
attempted to prove this defense by parol evidence. The court there said: The consideration
sought to be proved by the defendant by his parol evidence was wholly different from that
described in Exhibit C [the contemporaneous agreement]. Such evidence does not come
within any of the exceptions to the rule that parol evidence is inadmissible to vary the terms
of a written instrument, and the court committed no error in disregarding the same.
The case of Spells v. Swift & Co., supra, was an action upon a note which contained the
following recital: The consideration of this note is the above-mentioned commercial
fertilizer sold to me by Swift & Co., which I hereby acknowledge have been accepted, and
received with the express understanding that there is no warranty whatsoever. In holding that
it was error to allow the defendant to impeach such recital, the opinion states: The
consideration of a note can always be inquired into. Civil Code 1910, 4250. But if the
consideration be embraced in the terms of the notes, so as to constitute a part of the
agreement knowingly entered upon, it cannot be disputed or denied that the promise as made
was based upon the consideration thus expressed.
A similar rule applies to written instruments other than promissory notes. In Burk v.
Walton, 337 Mo. 781, 789, 86 S.W.2d 92, 96, the court said: While recitals in a written
instrument as to the consideration therefor amounting to statements of fact, and not rising to
the status of being contractual in their nature, are subject to contradiction [citations], extrinsic
evidence, in the absence of fraud, accident, or mistake, is not competent to vary or contradict
provisions of a contractual nature set forth therein where the parties to the document, or their
privies, are the contesting litigants.
To the same effect the court in Clarke v. Clarke, 194 Okl. 455, 152 P.2d 908, 910, stated:
And where, in a note or other written contract, the statement of the consideration is a mere
recital amounting to a receipt and is not contractual in form (McNinch v. Northwest Thresher
Co., 23 Okl. 386, 100 P. 524, 138 Am.St.Rep. 803; 20 Am.Jur. 975; 10 R.C.L. 1044; 22 C.J.
1171; 32 C.J.S., Evidence, 1569, p. 889), parol evidence is admissible to prove the true
consideration.
The subject of contractual consideration as regards the parol evidence rule is discussed
in 20 Am.Jur., Evidence 1112, and in Annot., 100 A.L.R. 17.
[Headnote 3]
The answer to the contention that the notes here are signed by only one party thereto and
do not constitute a contract within the contemplation of the parol evidence rule is found in the
case of Gladden v. Keistler, 141 S.C. 524, 140 S.E. 161, 164: "It is suggested that the
written instrument involved is signed by only one party, and is not a contract within the
contemplation of the parol evidence rule.
141 S.C. 524, 140 S.E. 161, 164: It is suggested that the written instrument involved is
signed by only one party, and is not a contract within the contemplation of the parol evidence
rule.
It is not always necessary, in order to give validity to a contract, that it should be signed
by both parties; it may be sufficient if it be signed by one party and accepted, held, and acted
upon by the other.
[Headnotes 4, 5]
In the present case the contracts between the corporation and respondent represented by
the two promissory notes became complete upon her acceptance of the notes which is
evidenced by the fact of her action herein to enforce the payment thereof. The respondent,
after accepting the notes, could not, in an action by her for advances made by her prior to
such acceptance, introduce parol evidence tending to show that the advances were in excess
of the amounts stated in the notes. The notes would be a complete defense to any excess. The
contract between her and the corporation in arriving at the amount due her becomes complete
upon her acceptance of each note. For the same reason the corporation cannot, in her suit on
the notes, claim a lesser amount or no amount was due her, in the absence of fraud or
mistake, or proof of discharge or partial discharge of the notes.
Under the circumstances of this case and the authorities cited, where neither fraud nor
mistake was asserted as a defense to the notes, to have received in evidence oral testimony for
the purpose of attacking the consideration as stated would have constituted an alteration of
the terms of a written instrument in violation of the parol evidence rule.
Because of the views heretofore expressed, it is unnecessary to consider whether the
execution of the notes constituted an accord and satisfaction, whether respondent by its action
is estopped from denying liability, or whether the execution of the second note eight months
after the first would amount to an affirmance of the first note.
Affirmed.
Badt, C. J., concurs.
Thompson, J., concurring in result:
I agree only with the result. The defendant (appellant here) failed to make an adequate
record to permit appellate review of the assigned error. The record shows that the defense
asked a witness the following preliminary question: Q. Mr. Link, at this get together or
gathering on September 23rd, did Mrs. Clough show the other members of the board of
directors any evidence of these advances or loans? Counsel for plaintiff interposed an
objection based upon the applicability of the parol evidence rule. The court sustained the
objection. Clearly, the question was preliminary. A yes or no would answer it. The
objection should not have been sustained at that time. Perhaps the defense should have
pursued the subject further. It did not. In any event, if 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.
However, were I to assume that the witness, if permitted to testify, would show an absence
of consideration for the notes, I would consider such evidence admissible and not touched by
the parol evidence rule. In this regard my view is directly contrary to the majority opinion.
The promissory notes here involved are negotiable instruments. All requisites are present.
NRS 92.008. Accordingly, they are deemed to have been issued for a valuable consideration.
NRS 92.031.
1
The Negotiable Instruments Law recognizes that the defense of absence of
consideration is available to defeat the claim of anyone who is not a holder in due course.
____________________

1
In the ordinary contract the party seeking to recover must prove consideration for the promise he is seeking
to enforce, while in the case of a negotiable instrument consideration is presumed. Thus, the absence of
consideration is a matter of defense. NRS 92.035. In other words, one seeking to recover on a negotiable
instrument
Instruments Law recognizes that the defense of absence of consideration is available to defeat
the claim of anyone who is not a holder in due course. NRS 92.035. In the nature of things
this defense, and others which are available to defeat an action on the note by the payee, must
rest in parol. Dixon v. Miller, 43 Nev. 280, 184 P. 926; Britton, Bills and Notes, p. 202. This
truism is recognized by NRS 52.060(2) dealing with conclusive presumptions. It provides that
the truth of the fact recited, from a recital in a written instrument between the parties
thereto is conclusive, except that this rule does not apply to a recital of consideration.
Thus a recital of consideration may be impeached by parol. The parol evidence rule is not
involved where the maker seeks to show that the paper record which, on the surface, looks
like a promissory note, is not such in law or fact because an indispensable element,
consideration, is absent. Mills v. Bonin, 239 N.C. 498, 80 S.E.2d 365; First State Bank v.
Miller, 118 Okl. 49, 246 P. 591; Herrman v. Combs, 119 Md. 41, 85 A. 1044; Haase v.
Ramsay, 10 Wis.2d 220, 102 N.W.2d 226.
Professor Corbin, in commenting upon the parol evidence rule as it applies to contracts,
makes this pointed statement: The first issue to be determined is, has a contract been made?
One party asserts a contract and asks its enforcement; the other denies the contract asserted by
the first, and may also deny that any contract whatever has been made. If the court is
convinced that no contract has been made, it will not be necessary to determine the later issue
of complete integration in writing. These two issues may sometimes be so interrelated that it
is easier to deal with them jointly; but, whether they are or not, it is certain that we need not
begin excluding parol evidence until we know that a contract has been made. 3 Corbin,
Contracts 577, at 385. (Emphasis added.)
It is equally certain that parol evidence should not be excluded to show that the
promissory notes are legally nonexistent because of the lack of consideration.
____________________
need not show that he gave consideration. The other party must bear the burden of showing the absence of
consideration (if such is his defense). If he does so, the defense will prevail against anyone not a holder in due
course. NRS 92.035; Dixon v. Miller, supra.
excluded to show that the promissory notes are legally nonexistent because of the lack of
consideration. Absent consideration, enforcible promissory notes (in the hands of anyone not
a holder in due course) do not exist as a matter of law.
Nevada has recognized that the parol evidence rule does not apply to exclude evidence
which goes to the very existence of the contract and tends to show that no valid or effective
contract ever existed. Child v. Miller, 74 Nev. 223, 327 P.2d 342; Western National
Insurance Co. v. Trent, 69 Nev. 239, 247 P.2d 208. On the other hand, it does apply where
both parties, admitting the existence of a valid document, seek to vary or change some of the
writing by extrinsic evidence. Sims v. Grubb, 75 Nev. 173, 336 P.2d 759, is illustrative.
There, in an action upon a promissory note, the court correctly excluded parol evidence when
its purpose was to show a different or additional consideration than expressed in the note. The
existence of a valid note was admitted, and the attempt to vary its terms was not allowed.
Gunter v. Hindman, 175 S.C. 436, 179 S.E. 494; Collins v. Shaffer, 66 Colo. 84, 179 P. 152;
Burke v. Walton, 337 Mo. 781, 86 S.W.2d 92, cited in the majority opinion, are also cases in
which the existence of all elements essential to a valid promissory note was admitted.
Consequently, parol evidence to alter or vary terms was not permitted.
I cannot accord validity to the distinction drawn in the majority opinion between a recital
of consideration and contractual consideration for two reasons. In the first place, the
language used is no more than a statement of the transaction which gives rise to the
instrument.
2
NRS 92.010(2). One searches in vain for words of promise.
____________________

2
The relevant parts of the two notes state:
(a) This note is issued to the payee in consideration of amounts of money advanced and loaned to the maker
over a period of several years past, the receipt whereof is specifically acknowledged, and the acts of the maker in
borrowing and receiving said amounts is hereby specifically approved and ratified.
(b) This note is issued to the payee in consideration of amounts of money advanced and loaned to the payee
since September 1, 1957 until May 22, 1958, the receipt whereof is specifically acknowledged, and the acts of
the maker in borrowing and receiving said amounts is hereby specifically approved and ratified.
of promise. The words used are no more than a recital of an executed consideration. Annot.,
14 A.L.R. 1126; 33 A.L.R. 1174; Beck Electric Constr. Co. v. National Contracting Co., 143
Minn. 190, 173 N.W. 413; Hubbard Bros. & Co. v. Southern Pacific Co., 5 Cir., 256 F. 761.
Second, if one were to assume that some kind of an integrated contract or agreement was
created by the words employed, nonetheless the parol evidence rule would not preclude
evidence to show that what appears to be a contract does not, in fact or law, exist. 3 Corbin,
Contracts 577; Child v. Miller, supra; Western National Insurance Co. v. Trent, supra.
In short, the maker of a negotiable instrument is not foreclosed by the parol evidence rule
from defeating the claim of the payee by showing that consideration is absent. Dixon v.
Miller, 43 Nev. 280, 194 P. 926. In Reinhart v. Echave, 43 Nev. 331, 187 P. 1006, on
rehearing, we recognized that a negotiable instrument, intended as a gift, is without
consideration and imposes no liability upon the maker to the payee. See also, Evans v. Cook,
11 Nev. 69, where it was recognized that, in an action upon a promissory note, it is a good
defense to show that the consideration for which the note was given was money won by
gambling, i.e., an illegal consideration.
If the defenses granted the maker of a negotiable instrument by NRS 92.035 of the
Negotiable Instruments Law cannot be established by parol evidence, the statute becomes
meaningless. For the reasons given, I express my disagreement with the majority opinion's
discussion of the parol evidence rule.
____________
79 Nev. 193, 193 (1963) Schoff v. Clough
HUGHIE J. SCHOFF, Receiver for CHARLESTON HILL NATIONAL MINES, INC.,
Appellant, v. MARY L. CLOUGH, Respondent.
No. 4549
April 10, 1963 380 P.2d 464
Appeal from the Sixth Judicial District Court, Humboldt County; Merwyn H. Brown,
Judge.
Action by receiver of corporation, against an officer of the corporation, to set aside
officer's sale of a mining claim to it. The trial court rendered judgment for defendant and
plaintiff appealed. The Supreme Court, McNamee, J., held that where there was no showing
that transaction was unfair to mining company, it was irrelevant as to whether officer, who
had purchased claim when she was not acting for corporation or under any duty to do so, had
made profit on transaction, and objection to question inquiring whether she had done so was
properly sustained.
Affirmed.
Brian L. Hall, of Reno, for Appellant.
1. Corporations.
Contract between corporation and officer thereof is not void or voidable except for unfairness or fraud.
NRS 78.140, subd. 1(c).
2. Corporations.
Where corporate officer as seller to corporation was both legal and equitable owner of property, fact that
she might make profit on sale was immaterial and could give corporation no claim against her so long as
transaction between them was fair. NRS 78.140, subd. 1(c).
3. Corporations.
Where there was no showing that transaction whereby mining company purchased claim from officer was
unfair to mining company, it was irrelevant as to whether officer, who had purchased claim when she was
not acting for company or under any duty to do so, had made profit on transaction, and objection to
question inquiring whether she had done so was properly sustained. NRS 78.140, subd. 1(c).
OPINION
This is an action to set aside a sale of a mining claim and to recover the purchase price
paid therefor. Appellant, plaintiff below, is the receiver for Charleston Hill National Mines,
Inc. In his complaint he alleges that in 1950 respondent sold to the corporation the Black
Hawk Mining Claim for $1S,000 cash; that the payment of said sum "unreasonably
reduced" the cash funds of the corporation; that said claim was worth little or nothing
and left the corporation in bad financial straits;1 that the action of the corporation's
board of directors, one of whom was the respondent, in authorizing said purchase was
not in the best interests of the corporation.
in 1950 respondent sold to the corporation the Black Hawk Mining Claim for $18,000 cash;
that the payment of said sum unreasonably reduced the cash funds of the corporation; that
said claim was worth little or nothing and left the corporation in bad financial straits;
1
that
the action of the corporation's board of directors, one of whom was the respondent, in
authorizing said purchase was not in the best interests of the corporation. Respondent in her
answer denied any improper dealing with the corporation.
There was a conflict in the evidence which was resolved by the advisory verdict of the jury
in favor of respondent and the acceptance thereof by the court. The trial court made formal
findings that the mining claim was worth at least $18,000 at the time of the sale, and that
respondent did not act unfairly or dishonestly with the corporation in the transaction. The
court concluded that, because of uncontradicted evidence that the mining claim had a value of
at least $18,000 on September 6, 1950, there was no fraud or intentional wrongdoing on the
part of respondent. Appeal is from the judgment based on these findings and conclusion.
At the trial respondent was asked by appellant's attorney:
Mrs. Clough, at the time you and the other members of the Board of Directors met in
September of 1950, and voted to accept this claim from you and pay you $18,000, was a full
disclosure made at that time relative to the amount of profit you would make on the sale?
An objection was made to this question on the ground that it was irrelevant and
immaterial. The objection was sustained, the court stating: As the court views it, whether she
made a profit or didn't make a profit is absolutely immaterial as to the value of the claim
when it was sold in 1950.
____________________

1
It was stipulated between the parties at the oral argument that although a receiver is in charge of the affairs
of Charleston Hill National Mines, Inc., there are absolutely no debts of the corporation except the debt to Mrs.
Clough (which is the subject of the action in Case No. 4548, 79 Nev. 182, 380 P.2d 458, decided this day).
Appellant assigns as error this action of the court in sustaining the objection. His entire
argument is based on the premise that under NRS 78.140(1)(c), unless the transaction
between the corporation and respondent, a director thereof, was fair it would be void or
voidable.
[Headnote 1]
A contract between a corporation and an officer thereof is not void or voidable except for
unfairness or fraud. Hough v. Reserve Gold Mining Co., 55 Nev. 375, 35 P.2d 742.
It was conceded by appellant at the trial that he was not charging respondent with fraud.
[Headnotes 2, 3]
There was no evidence before the trial court to show in any way that the transaction was
unfair to the corporation. Respondent had purchased the mining claim in 1943. It was not
shown that at the time of her purchase she had any thought of selling it thereafter to the
corporation or that the corporation was in any way interested in the property. In her
acquisition of the claim she was not acting for the corporation, nor under a duty so to do; she
acted as an individual unrelated in any way to the corporation. Indeed, the record does not
show that she was either a director or officer of the corporation when she purchased the
mining claim. Seven years later she and the corporation determined that it would be
beneficial to the corporation if it acquired the claim, and the price of $18,000 was determined
by both parties to be fair and reasonable. Under these circumstances where the seller is both
legal and equitable owner of the property, the fact that she might make a profit on the sale is
wholly immaterial, as it would have been if she had acquired the claim by gift or inheritance.
The only matter left for consideration is whether the price was fair. The findings of the court
supported by uncontradicted testimony that the claim had a value of at least $18,000 at the
time of the sale determines that question.
If a director or other officer purchases property, being at the time under no duty to
purchase for the corporation, he may afterwards sell it to the corporation, if it is represented
by other officers, without disclosing what he paid for it, and, if there is no fraud, he will not
be compelled to account for the profit he may make in the transaction. 3 Fletcher,
Cyclopedia Corporations 885, at 284 (perm. ed.).
We conclude that the action of the trial court in sustaining the objection was proper.
Affirmed.
____________
79 Nev. 197, 197 (1963) Patton v. Henrikson
MILBERN PATTON, as Guardian Ad Litem of GLEN EDWARD BREHM, and MILBERN
PATTON, Individually, Appellants, v. EMMA HENRIKSON, Respondent.
No. 4585
April 29, 1963 380 P.2d 916
Georgetta, Judge.
Suit for injuries suffered by the driver of a motor scooter which collided with automobile
driven by defendant. The trial court entered judgment on a verdict for defendant, and the
plaintiff appealed. The Supreme Court, Thompson, J., held, inter alia, that a witness of
ordinary intelligence, having observed the motor scooter in motion for 15 to 20 seconds, was
competent to express her opinion as to speed of scooter immediately prior to collision, though
witness was only 15 years of age at time of collision and not then licensed to drive, and that
any error in admitting immaterial testimony of such witness that some time after collision she
had taken driver-training course in high school was harmless.
Judgment affirmed.
Harry A. Busscher, of Reno, for Appellants.
Goldwater, Taber and Hill, of Reno, for Respondent.
Permitting counsel to argue the law and cite legal authority to court in presence of jury in opposition to
objection to question asked witness on direct examination was not prejudicial error, particularly where no
request was made that jury be excused during argument.
2. Trial.
Citation of authority to court in support of respective contentions of counsel in arguing for or against
objection to evidence should be encouraged.
3. Trial.
Reading of law, other than instructions, to jury during summation may be decreed improper practice.
4. Evidence.
Nonexpert witness of ordinary intelligence, having adequate opportunity to observe vehicle, is competent
to testify as to speed of moving vehicle.
5. Evidence.
A girl of ordinary intelligence, having observed motor scooter in motion for 15 to 20 seconds
immediately prior to collision with automobile, was competent to express opinion as to speed of scooter
immediately before collision, though she was only 15 years of age at time of collision and not then licensed
to drive.
6. Evidence; Witnesses.
That witness was only 15 years of age at time of collision and not then licensed to drive were factors to
be considered in assessing weight to be accorded her testimony as to speed of motor scooter immediately
before collision with automobile, but did not, alone, preclude admission thereof.
7. Appeal and Error; Evidence.
Testimony of witness, whose competency to testify as to speed of motor scooter immediately before
collision with automobile had been otherwise established, that some time after collision she had taken
driver-training course in high school was immaterial, but error in admitting such testimony was harmless.
NRCP 61.
Where plaintiff, suing for injury to driver of motor scooter in collision with automobile driven by
defendant, successfully argued during trial in opposition to defendant's motion for mistrial that reference to
insurance, made by defendant during cross-examination, was voluntary and harmless, plaintiff was not an
aggrieved party and could not complain of such ruling on appeal from judgment for defendant. NRCP
72(a); NRS 41.490.
9. Trial.
Written questions submitted to trial court by juror in personal injury suit as to existence of insurance
compensation for plaintiff was effectively answered by instruction thereafter read to jury prohibiting any
inference, speculation or discussion about insurance, and record on appeal from judgment for defendant did
not support contention that jury considered insurance contrary to mandate of instruction.
Reviewing court could not presume that jury ignored instruction in personal injury suit to refrain from
any inference, speculation or discussion about insurance.
OPINION
Glen Edward Brehm, a minor, was injured while driving a motor scooter which collided
with a car being driven by Emma Henrikson. Brehm's guardian ad litem filed suit to recover
damages. A jury found for the defendant Henrikson and judgment was entered on the verdict.
Plaintiff-guardian appeals. Five errors are assigned.
[Headnote 1]
First: Appellant contends that prejudicial error occurred when the trial court permitted
defense counsel to argue the law and cite legal authority in the presence of the jury. The
record shows that, during the direct examination of a defense witness, the objection of no
foundation was made by plaintiff's counsel to a question calling for the witness' opinion as to
the speed of the motor scooter just before the collision. During argument on the objection,
defense counsel read from a legal text. The argument was addressed to the court, and not to
the jury, though the latter was present. No request was made that the jury be excused during
argument on the objection.
[Headnote 2]
We reject the appellant's contention as incredible. The citation of authority to the court in
support of the respective contentions of counsel in arguing for or against the merit of an
objection made is to be encouraged, not censured.
respective contentions of counsel in arguing for or against the merit of an objection made is to
be encouraged, not censured. The assistance of counsel is solicited by the courts and
gratefully accepted. Had appellant's counsel believed that the arguments to occur on the
objection he interposed should not be heard by the jurors, he should have asked the court to
excuse them. He did not.
[Headnote 3]
The reading of law to the court in the presence of the jury in arguing an objection made to
evidence sought to be introduced during trial, is to be distinguished from the reading of law
(other than instructions) to the jury during summation. In the latter instance, such conduct is
sometimes deemed improper practice. Annot., 66 A.L.R.2d 9,
1
while, in the former, it is to
be commenced.
[Headnotes 4-6]
Second: Next the appellant argues that prejudicial error occurred when the trial court
permitted a witness, over objection, to express her opinion as to the speed of the motor
scooter immediately before the collision. The witness was 15 years old at the time of the
accident. The competency of a nonexpert witness to testify as to the rate of speed of a moving
vehicle is shown if such witness is of ordinary intelligence and his has an adequate
opportunity to observe the vehicle at the time in question. 70 A.L.R. 540; 94 A.L.R. 1190;
156 A.L.R. 384; Southwestern Freight Lines v. Floyd, 58 Ariz. 249, 119 P.2d 120; Davis v.
Lavenik, 178 Or. 90, 165 P.2d 277. Here the witness was shown to satisfy the competency
requirement. She was of ordinary intelligence. She observed the motor scooter in motion for
an estimated 15 or 20 seconds immediately before the collision. Her youth and the fact that
she was not then licensed to drive are factors to be considered in assessing the weight to
be accorded her testimony but do not, alone, preclude its admissibility.
____________________

1
Cf. Mahan v. Hafen, 76 Nev. 220, 351 P.2d 617, where during summation counsel read a statute to the jury.
The statute had been received in evidence during the trial. No objection was made when counsel read it during
summation. Held: in the absence of objection, the claim of error would not be considered for the first time on
appeal.
youth and the fact that she was not then licensed to drive are factors to be considered in
assessing the weight to be accorded her testimony but do not, alone, preclude its
admissibility.
[Headnote 7]
Third: Over the objection of immateriality the same witness was permitted to relate
that, some time after the accident, she had taken a drivers training course in high school. The
trial court's ruling is urged to be reversible error. We agree with appellant that the witness'
experience with cars, acquired some time after the accident, is not material or relevant to
show either that she was of ordinary intelligence at the time of the accident or that, at said
time, she had sufficient opportunity to observe the motor scooter to enable her to estimate its
speed. However, the foundation requirements to establish her testimonial qualification in that
regard were otherwise shown. Accordingly, the erroneous reception of such immaterial
evidence, innocuous rather than inherently prejudicial in nature, is not a predicate for
reversible error. Therefore, we deem the error harmless. NRCP 61.
Fourth: During cross examination of defendant the following happened:
Q. Mrs. Henrikson, who took these photographs? A. I don't know.
Q. Do you know when they were taken? A. No, I don't. I went up the next day with my
insurance adjuster.
Defense counsel moved for a mistrial. Plaintiff's counsel responded by arguing that the
mention made of insurance was a volunteer answer and harmless. The motion for mistrial
was denied.
[Headnote 8]
Had plaintiff won his case in the trial court, and had the defendant perfected an appeal
assigning the court's ruling as error, we would have to decide whether or not the questions
and answers quoted come within the rule announced in Henry v. Baber, 75 Nev. 59
announced in Henry v. Baber, 75 Nev. 59, 334 P.2d 839.
2
However, here the plaintiff lost his
case and appealed. The occurrence which he labeled harmless during trial (presumably
because he believed it was to his advantage and to the defendant's prejudice), is now asserted
as a reason for granting him another trial. He may not turn about and complain that the
ruling he solicited during trial was wrongfully made. He is not an aggrieved party as to this
claim of error, NRCP 72(a), and it is patently without merit.
Fifth: The court instructed the jury, You are reminded that no insurance company is a
party to this action, and that whether or not any insurance is involved has no bearing
whatsoever on any issue that you must decide in this case. Therefore, the oath that you took
as jurors requires that you refrain from any inference, speculation or discussion about
insurance. One of the jurors submitted four written questions to the court, one of them being,
Is there any insurance compensation? (for the plaintiff). The court told the juror that he (the
judge) was not permitted to answer the questions, except some of them will be, at least
partially, answered by the written instructions that I am about to give you. The instruction
above quoted, and others, were then read.
[Headnotes 9, 10]
The appellant does not object to the instruction. However, he does assert that the jury
considered insurance, contrary to the mandate of the instruction. There is nothing in the
record to support his position. The juror's question was posed before the jury instructions
were read.
____________________

2
In Henry v. Baber, supra, it was held that if the question was not deliberately asked with the intent to bring
the fact of insurance before the jury, and the answer was entirely unexpected and unsolicited, it was not error to
deny the defense motion for a mistrial.
In 1960 the legislature enacted NRS 41.490 relating specifically to a motion for mistrial in a personal injury
action occasioned by a reference to the defendant's liability insurance. We need not discuss the statute, but
merely wish to call attention to it.
were read. The quoted instruction effectively answered the question. We may not presume
that the jury ignored the instruction. This claim of error is without validity.
Affirmed.
____________
79 Nev. 203, 203 (1963) Haspray v. Pasarelli
EUGENE HASPRAY AND ROBERT COHEN, Appellants, v.
ARTHUR PASARELLI, Respondent.
No. 4559
April 30, 1963 380 P.2d 919
Action for specific performance of contract to sell realty or for damages in lieu thereof.
The trial court granted summary judgment for defendant and plaintiffs appealed. The
Supreme Court, McNamee, J., held that parol evidence was admissible to show that signed
agreement pertaining to conveyance of realty and unsigned agreement consisting of original
memorandum in handwriting of vendor showing terms of agreement were intended by parties
to constitute one transaction and plaintiffs should have been permitted to present evidence to
show that and also to explain differences in amount of down payment as set forth in
instruments.
Thompson, J., dissented.
George Rudiak, of Las Vegas, for Appellants.
Jones, Wiener & Jones, of Las Vegas, for Respondent.
1. Contracts.
Two separate writings may be sufficiently connected by internal evidence without any express words of
reference of one to the other and fact that they refer to same transaction and state terms thereof may appear
from character of subject matter and from nature of terms.
2. Evidence.
Parol evidence was admissible to show that signed agreement pertaining to conveyance of realty and
unsigned memorandum in handwriting of vendor showing terms of agreement were intended by parties to
constitute one transaction and alleged purchasers, who sought specific performance of contract or damages
in lieu thereof, should have been permitted to present evidence to show that and also to explain differences
in amount of down payment as set forth in instruments. NRS 111.210, subd. 1.
3. Evidence.
That document was unsigned did not preclude admission of parol evidence to connect it with signed
document in attempting to establish contract on basis of both documents. NRS 111.210. subd. 1.
4. Contracts.
Doctrine of incorporation by implied reference is accepted in Nevada.
OPINION
This is an action for specific performance of an alleged contract to sell real property or for
$27,000 damages in lieu thereof. The First Claim alleges a written contract whereby
respondent agreed to sell appellant Haspray the Apache Motel for $225,000, a copy of the
contract being attached to the complaint marked Exhibit A and hereinafter described. It is
further alleged in this claim that Haspray paid respondent $1,000 as a deposit on the purchase
price and that thereafter respondent repudiated the agreement and refused to perform the
same; that the market value of the property is $252,000.
In the Second Claim appellants allege that respondent entered into an oral contract with
them by which he had agreed to sell them the Apache Motel for $225,000 upon the following
terms: $25,000 as down payment with a deposit of $1,000 to be paid forthwith, and the
appellants to assume payment (a) of the existing first trust deed against the property (b) the
furniture contract with a balance of about $7,500 owing (c) the balance of the land contract in
about the sum of $25,000, and (d) appellants to execute a second trust deed upon said land in
the sum of $67,500, payable in installments of $900 per month including interest at 7
percent upon the unpaid balance, the entire balance to become due and payable in eight
years.
in the sum of $67,500, payable in installments of $900 per month including interest at 7
percent upon the unpaid balance, the entire balance to become due and payable in eight years.
In this Second Claim it is alleged that Exhibit A is a written memorandum of said
agreement.
In his answer, after certain denials, respondent admits the execution of Exhibit A; that
he offered to return the $1,000, which offer was refused, and as an affirmative defense alleges
that the alleged agreement fails to set forth the specific terms and conditions of the second
trust deed; that the agreement would not come into existence until all details, terms, and
conditions of the various encumbrances were fully agreed upon and which would be
incorporated into a formal written contract of sale and purchased; and that by virtue of the
statute of frauds, NRS 111.210, the memorandum of agreement represented by Exhibit A is
insufficient in that it fails to set forth the terms of payment of the mortgage, the debts, and
other terms necessary and required to satisfy its requirements.
Exhibit A is a printed form entitled RECEIPT AND AGREEMENT, dated August 12,
1960, and states in part: Received from Eugene Haspray, herein called Buyer, the sum of
One Thousand Dollars, evidenced by personal check as deposit on account of total purchase
price of $225,000 for the Apache Motel, 407 So. Main Street, Las Vegas, Nevada. Buyer will
deposit in escrow the balance of the purchase price within 10 days from date hereof as
follows: $25,000 down. Buyer to assume First Trust Deed of approximately $100,000. Also
furniture contract approximately $7,500 and contract on lot of approximately $25,000.
Second Trust Deed of approximately $67,500.
After certain other provisions not material to this decision, Exhibit A recites:
The undersigned Buyer offers and agrees to buy the above described property on the
terms and conditions above state.
[Signed] Eugene Haspray, Buyer.
On the back of Exhibit A appears the following:
ACCEPTANCE
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.
Dated 8-12-1960.
[Signed] Arthur Pasarelli.
After issues were made, respondent moved for summary judgment on the ground that the
memorandum (Exhibit A) fails to set forth the terms and conditions of payment of the second
trust deed. The motion was supported by the affidavit of respondent which states that Exhibit
A is the only writing of any nature subscribed by him in connection with the facts alleged.
The affidavit of Haspray was received in opposition to said motion and it states that Exhibit
E is an original memorandum in the handwriting of respondent; that respondent agreed to
take only $25,000 down rather than $30,000 as originally listed, thereby increasing the
amount of the second trust deed from $62,500 to $67,500. This affidavit further alleges that
when affiant signed the Receipt and Agreement on August 12, 1960, it was his
understanding that all of the terms and conditions as set forth in the original listing, Exhibit
E' above referred to, except as modified by our later negotiations, were included in the
Receipt and Agreement.
Exhibit E is as follows:
Sale
225,000 Sale Price
30,000 Down
1st Trust Deed $1,000 7 1/2% month 100,000
Lot 25,000 7% $350 month
Furniture 7% 355 month 7500
2nd Trust Deed $62,500
$900 month Due 8 years
8 per cent interest
There is a conflict in the evidence as to when Exhibit E came into existence, whether
during the afternoon of August 12, 1960, the day the Receipt and Agreement {Exhibit A) was
signed, or at the time respondent listed the motel with appellant some day before.
(Exhibit A) was signed, or at the time respondent listed the motel with appellant some day
before.
The record also contains part of respondent deposition wherein he testified that there had
been no meeting of the minds relative to the terms of the second trust deed, and that Exhibit
E was not intended as a memorandum of any agreement between him and Haspray.
Subsection 1 of NRS 111.210 provides: Every contract for the leasing for a longer period
than 1 year, or for the sale of any lands, or any interest in lands, shall be void unless the
contract, or some note or memorandum thereof, expressing the consideration, be in writing,
and be subscribed by the party by whom the lease or sale is to be made.
It is conceded by appellants that Exhibit A alone is insufficient to satisfy the
requirements of this statute. See Johnson v. Watson, 70 Nev. 443, 272 P.2d 580; Stanley v.
Levy & Zentner Co., 60 Nev. 432, 112 P.2d 1047, 158 A.L.R. 76.
Exhibit A makes no express reference to Exhibit E. Appellants maintain that it can be
implied from Exhibit A that Exhibit E which specifies the terms of payment of the
second trust deed was intended by the parties to be a part of Exhibit A, and that the two
instruments together satisfy the requirements of the statute of frauds.
In the present case the trial court held as a matter of law that Exhibit E bearing no date
and not being subscribed by respondent although in his handwriting was not the type of
memorandum called for by the statute of frauds, because it could not be ascertained therefrom
whether Exhibit E was merely some work paper that respondent may have written
preliminary to an arrival at some final agreement by the parties. For this reason the motion for
summary judgment was granted.
In Bowker v. Goodwin, 7 Nev. 135, 138, this court stated that where two instruments [a
promissory note and an agreement in relation thereto] were executed together as one
transaction they constituted but one instrument or contract, although written on different
pieces of paper. "They would have to be taken and construed together as if written on the
same paper and signed by both parties.
instrument or contract, although written on different pieces of paper. They would have to be
taken and construed together as if written on the same paper and signed by both parties. The
law in such case deals with the matter as it really wasas one transactionand therefore all
the papers drawn up simultaneously bearing on the same subject are held to be but one
contract, although written on several papers. In that case upon conflicting evidence the trial
court concluded that the two instruments should be taken as one contract, executed
simultaneously.
[Headnote 1]
Two separate writings may be sufficiently connected by internal evidence without any
express words of reference of one to the other. That they refer to the same transaction and
state the terms thereof may appear from the character of the subject matter and from the
nature of the terms. 2 Corbin, Contracts 514.
[Headnotes 2, 3]
All of the essential terms of the oral agreement alleged can be found in the two written
documents. If they were intended by the parties to constitute one transaction appellants
should have been permitted to present evidence to show this and also to explain the
differences in the amount of the down payment as set forth in the two instruments, and the
fact that Exhibit E is an unsigned document does not preclude the admission of parol
evidence to connect Exhibit E with Exhibit A. Crabtree v. Elizabeth Arden Sales Corp.,
305 N.Y. 48, 110 N.E.2d 551; Annot., 81 A.L.R.2d 991, 1005.
In Waterhouse v. Capital Investment Co., 44 Haw. 235, 353 P.2d 1007, 1014, the supreme
court said: There are a number of Hawaiian cases holding that the Statute of Frauds may be
satisfied by separate writings. These may be considered together if by internal evidence they
are shown to be related in subject matter, and together may constitute the required
memorandum in writing.
writing. When properly connected it is not necessary that all of them be signed. Fishel v.
Turner, 13 Haw. 392; Oliveira v. Silva, 18 Haw. 602, 609; Glockner v. Town, 42 Haw. 485;
see also 49 Am.Jur., Statute of Frauds, 392-395.
In Crabtree v. Elizabeth Arden Sales Corp., supra, where the documents relied upon
consisted of two signed payroll cards and a third unsigned memorandum which contained one
of the essential elements of the contract, the court in holding that parol evidence could be
used to show the circumstances surrounding the making of the unsigned memorandum stated:
Parol evidenceto portray the circumstances surrounding the making of the
memorandumserves only to connect the separate documents and to show that there was
assent, by the party to be charged, to the contents of the one unsigned. If that testimony does
not convincingly connect the papers, or does not show assent to the unsigned paper, it is
within the province of the judge to conclude, as a matter of law, that the statute has not been
satisfied.
[Headnote 4]
Once we accept the doctrine of implied reference, which we hereby approve, the necessity
for a trial of the factual issues and the impropriety of a summary judgment inevitably follow.
Judgment reversed and the cause remanded for trial.
Thompson, J., dissenting:
A contract for the sale of land shall be void unless the contract, or some note or
memorandum thereof, expressing the consideration, be in writing and subscribed by the party
by whom the sale is to be made. NRS 111.210. Whether the writing required by the statute
is legally sufficient presents a question of law. The court to whom the written memorandum
is submitted, looks to the writing alone to decide its adequacy. Resort to oral or parol
evidence is not authorized for the purpose of providing essential terms.
In Stanley v. Levy & Zentner Co., 60 Nev. 432, 446, 112 P.2d 1047, 1053, 158 A.L.R. 76,
it is stated: The substantial parts of the contract must be embodied in the writing with such a
degree of certainty as to make clear and definite the intention of the parties without resort to
oral evidence. The court in Stanley v. Levy & Zentner Co., supra, approved Restatement,
Contracts 207, reading: A memorandum, in order to make enforceable a contract within
the Statute, may be any document or writing, formal or informal, signed by the party to be
charged or by his agent actually or apparently authorized thereunto, which states with
reasonable certainty, (a) each party to the contract either by his own name, or by such a
description as will serve to identify him, or by the name or description of his agent, and (b)
the land, goods or other subject-matter to which the contract relates, and (c) the terms and
conditions of all the promises constituting the contract and by whom and to whom the
promises are made. The Restatement standard was again approved in Johnson v. Watson, 70
Nev. 443, 272 P.2d 580. In short, unless the writing, considered alone, expresses the essential
terms with sufficient certainty to constitute an enforceable contract, it fails to meet the
demands of the statute. Montanaro v. Pandolfini, 148 Conn. 153, 168 A.2d 550; Ellis v.
Klaff, 96 Cal.App.2d 471, 216 P.2d 15. The object of the statute would be frustrated if an
essential term of the contract could be provided by parol. Craig v. Zelian, 137 Cal. 105, 69 P.
853. A court must first determine, as a matter of law, that the writing in question satisfied the
statute before parol proof is admissible to establish the supplementary details of the contract.
Cf. Johnson v. Watson, supra.
In the case before us neither of the written memoranda (Exhibits A and E) satisfies the
statute when considered alone. However, the appellant (buyer) contends that they may be
considered together and, when so considered, reflect a meeting of the minds upon all
essential terms of a contract for the sale of the Apache Motel.1 I believe that, when the
two writings are read together {assuming, without deciding that the doctrine of
incorporation by implied reference applies), the conclusion is inescapable that the parties
did not agree on at least two of the essential terms of the alleged contract.
considered, reflect a meeting of the minds upon all essential terms of a contract for the sale of
the Apache Motel.
1
I believe that, when the two writings are read together (assuming,
without deciding that the doctrine of incorporation by implied reference applies), the
conclusion is inescapable that the parties did not agree on at least two of the essential terms of
the alleged contract. In Exhibit A the down payment is stated to be $25,000, while in
Exhibit E it is $30,000. The principal sum to be secured by the second trust deed is
specified as $67,500 in Exhibit A, and $62,500 in Exhibit E. Thus, instead of proving a
meeting of the minds on all essential terms, the opposite is irrefutably shown on the face of
the exhibits. The differences may not be explained by other testimony because the statute of
frauds requires the writing to reflect the agreement. The majority opinion holds, inter alia,
that such an explanation is permissible. Respectfully I suggest that such holding permits proof
of some of the essential terms of an alleged oral contract by oral evidence, rather than by the
writing demanded by the statute. In my view, the summary judgment entered below should be
affirmed.
I dissent.
____________________

1
Neither Exhibit A nor E expressly refers to the other. The doctrine of incorporation
by implied reference is employed by appellant to permit their incorporation. This doctrine is
referred to in Restatement, Contracts 208. See Annot., 81 A.L.R.2d 991. Cf. Bowker v.
Goodwin, 7 Nev. 135.
____________
79 Nev. 211, 211 (1963) Finnell v. Bromberg
LEONE C. FINNELL, Appellant, v. LEO EDWIN
BROMBERG, Respondent.
No. 4580
May 2, 1963 381 P.2d 221
Optionee brought action against one of three optionors to recover damages for breach of
contract giving option to purchase stock.
option to purchase stock. The trial court entered judgment for the optionee, and the optionor
appealed. The Supreme Court, Badt, C. J., held that where option provided that it could be
exercised by the optionee only after March 1 and before June 23 by notice in writing and
tender of purchase price in form of a cashier's check or money order, and telegram and letter
of the optionee to the optionors on May 20 stated unequivocally that the optionee exercised
option to purchase, requested deposit of stock certificates with certain bank, and stated that
the bank would make payment to the optionors for shares immediately on receipt from the
optionors, and the bank on May 20 wrote one of the optionors that the bank was enclosing a
copy of escrow instructions for her signature, and money covering option price of stock
certificates was at all times on deposit with the bank, there was a valid exercise of the option
by the optionee.
Affirmed in part. Reversed in part and remanded for limited new trial.
Guild, Busey & Guild, of Reno, for Appellant.
Stanley H. Brown and John S. Belford, of Reno, for Respondent.
1. Corporations.
Option to purchase stock must be unequivocally accepted according to its terms in order to constitute
legal and binding acceptance.
2. Corporations.
Where option to purchase stock provided that it could be exercised by optionee only after March 1 and
before June 23 by notice in writing and tender of purchase price in form of cashier's check or money order,
and telegram and letter of optionee to optionors on May 20 stated unequivocally that optionee exercised
option to purchase, requested deposit of stock certificates with certain bank, and stated that bank would
make payment to optionors for shares immediately on receipt from optionors, and bank on May 20 wrote
one of optionors that bank was enclosing copy of escrow instructions for her signature, and money
covering option price of stock certificates was at all times on deposit with bank, there was valid exercise of
option.
3. Corporations.
Tender is excused when seller of stock has repudiated contract for sale of stock.
4. Contracts.
Where party bound by executory contract repudiates his obligation before time for performance,
promisee has option to treat contract as ended so far as further performance is concerned and to maintain
action at once for damages occasioned by such anticipatory breach.
5. Corporations.
Where optionee exercised option to purchase stock, but one of optionors told agent of optionee that such
optionor had received advice that option contract was illegal, and that she was not bound by it and was not
required to deliver stock, and that she was going to take that advice and was not going to deliver stock to
optionee, there was anticipatory breach, and optionee had option to treat contract as ended and to maintain
action at once for damages.
Fact that trial judge died after trial but before deciding case, and fact that case was then by stipulation of
parties submitted to another judge on testimony taken before deceased judge would not entitle Supreme
Court on appeal to ignore findings and substitute its own, and Supreme Court could not disturb findings
supported by substantial evidence.
7. Corporations.
Where optionee on May 20 exercised option to purchase stock, but it was not until June 2 that one of
optionors repudiated contract, and up to that date optionee was willing to accept stock and he kept
importuning that optionor as late as June 1 and June 2 to deliver stock, and optionee on June 11 brought
action for damages for breach of contract against that optionor, damages should have been fixed by
determining difference between the market value of stock on June 2 and option price rather than difference
between market value of stock on May 20 and option price.
OPINION
This appeal requires a determination of the rights and obligations of the parties under an
option from Finnell to Bromberg for the purchase of certain corporate stock owned by the
former. The trial court found that Bromberg had notified Finnell of his exercise of the option
to purchase the stock and tendered the option price thereof, and that upon Finnell's rejection
Bromberg was entitled to judgment for damages in the amount of the difference between
the option price and the price to which the stock had advanced on the exchange at the
time of Finnell's breach.
and that upon Finnell's rejection Bromberg was entitled to judgment for damages in the
amount of the difference between the option price and the price to which the stock had
advanced on the exchange at the time of Finnell's breach. Judgment was entered in favor of
Bromberg in the sum of $99,484.93. A statement of the facts follows.
The option was in the following words:
The undersigned hereby grant to Leo Edwin Bromberg the option to purchase the
corporate stock hereinafter referred to on the following terms and conditions:
1. The option covers the stock of Barnhart Morrow Consolidated represented by
Certificate No. TB558 for 45,000 shares, Certificate No. TB559 for 61,060 2/3 shares,
Certificate No. TB560 for 10,000 shares.
2. The option can be exercised only after March 1, 1959 and before June 23, 1959 by
notice in writing and tender of the purchase price in the form of cashier's check or money
order.
3. The purchase price of said shares shall be 60 per share for shares represented by
Certificate Nos. TB559 and TB560 and 75 per share for shares represented by Certificate
No. TB558.
4. In consideration of this option the undersigned acknowledges receipt of the sum of
$5,000.00 which sum represents consideration for this option and is not to be deemed as part
of the purchase price for said stock.
Dated: 2 January 1959
/s/ Mrs. Imogene C. Wilson
/s/ Mrs. Florence C. Jones
/s Mrs. Leone C. Finnell
On May 20, 1959, Bromberg sent the following telegram to Finnell and her sisters, the
other two optioners.
1

I HEREBY EXERCISE OPTION TO PURCHASE BARNHART-MORROW
CONSOLIDATED CERTIFICATE NO. TB558 FOR 45,000 SHARES AT 75 PER SHARE,
NO.
____________________

1
The option to purchase the stock of Mrs. Wilson and Mrs. Jones (Mrs. Finnell's sisters) is not involved in
this appeal, which is restricted to Mrs. Finnell's 61,060 2/3 shares, at 60 a share, represented by Certificate
TB559, and her Certificate No. TB560 for 10,000 shares at 60 a share.
SHARE, NO. TB559 FOR 61,060 2/3 SHARES AT 60 PER SHARE AND NO. TB560
FOR 10,000 SHARES AT 60 PER SHARE, FOR A TOTAL CONSIDERATION OF
$76,386.40. PLEASE DEPOSIT SAID CERTIFICATES EVIDENCING SAID NUMBER
OF SHARES WITH THE BANK OF AMERICA, WILSHIRE SWEETZER BRANCH, 6507
WILSHIRE BOULEVARD, LOS ANGELES 48, CALIFORNIA, ESCROW NO. 9748, AND
BANK OF AMERICA WILL MAKE PAYMENT FOR SAID SHARES IMMEDIATELY
UPON RECEIPT FROM YOU. BANK OF AMERICA WILL MAIL YOU ESCROW
INSTRUCTIONS FOR SIGNATURE TODAY. KINDEST PERSONAL REGARDS.
On the same date he wrote Mrs. Finnell at her Reno address and Mrs. Jones and Mrs.
Wilson at their respective Los Angeles addresses, in virtually the same words and figures
contained in the telegram.
On the same date the Bank of America, Los Angeles, wrote Finnell at Reno as follows:
We enclose a copy of escrow Instructions for your signature. When we are in receipt of
this Instruction signed by all parties and the Stock certificates listed therein, we will present
the Certificate and proceed as per Instruction.
If the cashier's check in the amount of $76,386.40 is to be divided between Imogene C.
Wilson, Florence C. Jones and Leone C. Finnell in this escrow, we will require written
instructions signed by all three as to the exact amount of the checks to be issued to each party,
otherwise we will issue one check in the amount of $76,386.40 payable to the order of all
three. A self-addressed envelope is enclosed for your convenience in returning the signed
escrow instruction to this office.
The escrow instructions referred to contained, first, some two pages of printed matter
holding the bank harmless against everything except gross negligence or willful
misconduct, and authorized the bank, in the event of any controversy between the parties or
with any third person, to await the settlement thereof by final appropriate legal proceedings,
"notwithstanding anything in the following instructions to the contrary."
final appropriate legal proceedings, notwithstanding anything in the following instructions to
the contrary. This is followed by the provision for the payment by Capital Factors of $25,000
and for payment by Bromberg of $51,386.40, making a total of $76,386.40, which was to be
delivered by cashier's checks to Finnell and her two sisters.
2
It is then provided: Upon
issuance of the above mentioned cashier's check, the undersigned [Wilson, Jones, and
Finnell] will have no further interest in this escrow.
It is then provided that Bromberg deposit a $25,000 note payable to Capital Factors and
38,500 shares of Barnhart Morrow stock (furnished by Barnhart Morrow), whereupon
Capital Factors will have no further interest in this escrow.
The bank is then to hold the residue of the stock until it has received $85,000 with orders
for stock per a written from attached and such sum is to be used for payment by the banks of
bills in accordance with an attached list, and Barnhart Morrow is to deposit its note for
$85,000 for delivery to Bromberg when payment of the bills has been made. The escrow may
then be closed.
The form attached to the escrow instructions whereby subscribers to Barnhart Morrow
stock deposit their money, provided that all such funds be held by you until the entire block
of shares to be sold through this escrow has been so deposited as set forth in the escrow
instructions.
The parties entered into a stipulation as to the facts, including the following:
On or about January 2, 1959, plaintiff and defendant entered into an option agreement
* * *. Under this agreement defendant gave to plaintiff an option to purchase 71,060 2/3
shares of the stock of Barnhart Morrow Consolidated at the price of sixty cents a share. The
option could be exercised between March 1, 1959, and June 23, 1959. Plaintiff paid
defendant and her two sisters $5,000.00 for said option.
____________________

2
See footnote 1.
On or about May 20, 1959, plaintiff had caused to be deposited in escrow with the Bank
of America, Wilshire-Sweetzer Branch, in Los Angeles $76,386.40. * * * From this amount
$42,636.40 was to be paid to defendant when she deposited in the escrow the stock called for
by the option.
On or about May 20, 1959, plaintiff wired and wrote to defendant, advised her of his
exercise of the option, that the bank would make payment to her immediately upon the receipt
of the shares and that the bank would send escrow instructions for her signature. By letter
dated the same day the bank sent the escrow instructions to defendant.
On May 20, 1959, the market price of the stock was $2.00 per share.
* * * * *

After March 31 and prior to May 20, a Mr. Turnbull told defendant that she did not need
to deliver the stock.
There is some conflict in the testimony as to telephone calls concerning the delivery of
the stock by defendant. Portions of that testimony were:
Mr. Talis testified:
I called her person to person. I believe she was here in Reno, and I said I was Mr.
Bromberg, and I said I had understood that she said she would deliver the stock today,
Monday [June 1, 1959], during banking hours and since it hadn't arrived I was calling her in
an effort to try and find out when the stock would arrive. Her answer to this wasI will try to
describe it as closely as I can, that she was going to deliver the stock except that she was
waiting to find out from Mr. Brombergor me, I presume she thought I was Mr.
Brombergif she could deliver the stock without signing the escrow agreement. She
definitely was not going to sign it. I told her arrangements had been made at the Bank of
America that they would accept the stock without her signature on the escrow agreement, and
they would give her her check. She said under those conditions she would be down to the
bank tomorrow with her sisterdo you want me to continue? "'Q Yes.
Q Yes.
A At the end of the business day the following day, the stock had not arrived and I called
Mrs. Finnell again long distance. I said it was Mr. Bromberg's office calling; the stock did not
arrive; when did she plan on bringing it down. At that point she said she had received advice
that her option agreement was illegal and that she wasn't bound by it and didn't have to
deliver the stock. I asked who gave her that advice, was it an attorney. She said, That's my
business. That is advice I had and the advice I have taken, and I am not going to deliver the
stock.'
Plaintiff testified:
A Mrs. Finnell did not want to sign the escrow instructions. She did not want to become
a party to the escrow. * * *
Q What else did she tell you?
A She also told me she would deliver the stock on the following Monday, her sister had
the stock, it would be delivered the following Monday to the bank to pick up the money.
Q But she said she didn't want to sign the escrow instructions?
A That is right. I told her it was not necessary for her to sign the escrow instructions.'
Defendant testified:
Q And what did you say then with reference to the escrow instructions?
A I told this man that called me the reason why we didn't want to sign the escrow papers.
Q Then you were subsequently informed that you didn't have to sign them?
A He told us he would present us a check without our putting the stock in escrow.
Q Well, didn't he tell you he had made arrangements with the bank so the stock would be
put in escrow without your signing the instructions?
A No, he did not.'
Defendant testified that she did not receive the letter from the bank until May 28th or
29th. Plaintiff disputes this.
* * * * *
It is further stipulated and agreed that the Court may consider the matter on the record
and briefs, make its Findings of Fact and Conclusions of Law and enter its decree.
The trial court found, in part, as follows:
II On January 2, 1959, in consideration of the payment to her of $5,000.00 by plaintiff,
defendant Finnell at Los Angeles, California, granted, in writing, to plaintiff, the right and
option to purchase from her 71,060 2/3 shares of said capital stock at the price of sixty cents
per share, said option to be exercised after March 1, 1959, and prior to June 23, 1959.
III On May 20, 1959, plaintiff had caused to be deposited in escrow with Bank of
America, Wilshire-Sweetzer Branch, Los Angeles, California, the sum of $76,386.40, with
instructions to pay the same by cashier's check to defendant Finnell, and Imogene C. Wilson
and Florence C. Jones, upon receiving from them said stock certificates, together with an
additional certificate held by the said Imogene C. Wilson and Florence C. Jones. Of said
amount, $42,636.40 was due to defendant Finnell for her said shares.
IV On May 20, 1959, plaintiff, by telegram and letter, notified defendant Finnell, and
Imogene C. Wilson and Florence C. Jones that he exercised said option and that upon deposit
of said stock certificates with said escrow holder it would immediately make payment to her
therefor.
V After the said exercise of the option defendant Finnell told plaintiff's agent that she
would not sign the proposed escrow instructions and was told by him and by plaintiff that she
did not need to do so and that if she would deliver the stock certificates to the escrow holder
she would be paid therefor.
The next day she told said agent that she had received advice that the option agreement
was illegal, that she was not bound by it and did not have to deliver the stock.[
3
] "At no time
prior to June 11, 1959 did defendant specify the form or mode of tender that she would
accept.
____________________

3
As noted above, the testimony supported this finding went still further. Following the recital in the above
finding, the witness testified: I asked her who gave her that advice, was it an attorney. She said, That's my
business. That is advice I had and the advice I have taken, and I am going to deliver the stock.'
At no time prior to June 11, 1959 did defendant specify the form or mode of tender that
she would accept.
* * * * *
VII From and including May 20, 1959, to and including May 25, 1959, the market value
of said stock was $2.00 per share. From and including May 26, 1959, to and including May
29, 1959, the market value thereof was from $1.80 to $1.90 per share.
VIII That the difference between the option price of said stock of sixty cents per share
and the market value thereof of $2.00 per share is $99,484.93.
Although Finnell has not filed or included in her brief any definite specification of errors,
the grounds of her appeal are, we think, made clear.
1. Appellant states: The primary question is whether or not Bromberg legally exercised
the option by setting up the bank escrow. Finnell's contention is that this was not a proper or
legal exercise of the option. It is apparent from what follows that the escrow here referred to
by Finnell is the escrow set up by the bank's written instructions heretofore discussed in some
detail. Finnell discusses these instructions at great length, indicating that they brought in new
parties to the transaction, with complications of money being furnished by other people
through the purchase of stock and relieving the bank from the necessity of making any
distribution whatsoever until all the stock was paid for and the money appropriated to the
purposes discussed in the written instructions. Although not necessary to our decision, a
careful study of such escrow instruction shows that Finnell had nothing to fear from this
source. The instructions clearly declared that upon deposit of the stock, the money would be
immediately paid, and Finnell would have no further interest in the escrow.
[Headnotes 1, 2]
Finnell contends that an option must be unequivocally accepted according to its terms in
order to constitute a legal and binding acceptance. Many authorities are cited in support of
this proposition.
in support of this proposition. Bromberg does not contest this rule and it is undeniably good
law. The option provided that it could be exercised only after March 1, 1959 and before June
23, 1959 by notice in writing and tender of the purchase price in the form of cashier's check
or money order. Bromberg's telegram and letter of May 20, 1959, stated unequivocally, I
hereby exercise option to purchase * * *. Please deposit said certificates * * * with the Bank
of America * * * and Bank of America will make payment for said shares immediately upon
receipt from you. * * * The bank under the same date wrote Finnell, We enclose copy of
escrow Instructions for your signature. When we are in receipt of this Instruction signed by all
parties and the Stock certificates listed therein, we will present the Certificate and proceed as
per Instruction. It was stipulated as an agreed fact that the money covering the option price
of the certificates was at all times on deposit with the bank. The written instructions to the
escrow holder were to deliver cashier's check when the bank held the certificates, upon which
Finnell will have no further interest in this escrow.
Whether with or without justification, Finnell absolutely refused to sign the escrow
instructions; and it is true that the indications in Bromberg's letter and telegram and the bank's
letter that her signing of such escrow instructions would be required.
Talis testified, and the court found in accordance therewith, that upon Finnell's refusal to
sign the escrow instructions he advised her that it was unnecessary for her to do so, that the
money was at the bank, and that upon presentation of the stock certificate, cashier's check
would be delivered to her. Much space is devoted in Finnell's brief to the contention that this
was a modification of the option and that as the acceptance of the option was required to be in
writing, so was any modification. We need not enter into this discussion. The gist of the
situation is that on May 20, 1959, Bromberg definitely notified Finnell of the exercise of the
option, that the money was at the bank (which fact is conceded), and that upon receipt of the
stock the bank would make payment.
and that upon receipt of the stock the bank would make payment. This was the exercise of the
option, and the unilateral contract created by the option immediately became a bilateral
contract between Finnell and Bromberg. A clear statement of such situation appears in 1
Corbin, Contracts 264, at 876: [I]n specifying the mode of acceptance and the condition of
his duty, the option giver can cause the contract either to remain unilateral as before the
acceptance or to become bilateral. The specified condition can be either the actual rendition
of a definite performance (such as payment of the price) or the making of a promise of such
performance. The difference that it makes is this: first, it determines the manner in which the
option holder must acceptthe character and limits of his power; secondly, it answers the
question whether the option giver can maintain any action, for either damages or specific
performance, against the option holder. In most cases, the courts are likely to interpret the
agreement in such a way that the contract will be held to be bilateral after a proper notice of
acceptance. In such cases, the notice of acceptance is operative without any tender of the
price; and this is true even though such tender may still be a condition of the duty to execute a
conveyance.
This court took the same view in Milner v. Dudrey, 77 Nev. 256, 362 P.2d 439. The
optionee gave notice of exercise of her option to purchase in words less certain than the
notice of election in the present case. The option in Milner required: If the survivor shall
elect to purchase * * * such notice of election shall be given in writing * * * within fifteen
days * * * and shall tender therewith a good faith deposit of not less than $10,000.00. The
notice of election recited, I am advised that a deposit of $10,000.00 will be made forthwith
at the First National Bank * * *. This court held, first, An option is exercised by the giving
of an unconditional notice that the holder does elect to exercise it. (citing authorities) * * * In
this case the letter * * * with the statement that $10,000 was being deposited, certainly
indicated the intent to be bound by this notice accepting the option.
accepting the option. * * * the letter * * * constituted written notice of present election to
exercise the option. Accord: Bonde v. Weber, 6 Ill.2d 365, 128 N.E.2d 883. This court next
considered the contention that the deposit of the check in the First National Bank of Nevada
in Las Vegas was not proper tender, because it was not tendered to the executrix, or her
attorney, or any of their heirs. (The principal administration was in California, with ancillary
administration in Nevada. The option had been set up in a partnership agreement, giving the
surviving partner an option to purchase the interest of the deceased partner.) The agreement
provided that the notice of election to exercise the option shall be given in writing to the legal
representative of said deceased within fifteen days after the date of death and shall tender
therewith a good-faith deposit of not less than $10,000. It required, not a deposit in bank, but
that the optionee shall tender the deposit of $10,000. This court held that the deposit in bank
with notice to the attorney who had represented the deceased and who represented the person
named as executrix was legally sufficient tender under the terms of the partnership
agreement.
So we have the written exercise of the option on May 20, 1959, and the tender of the
money on the same date. The time in which the option could be exercised and the tender
made was after March 1, 1959, and before June 23, 1959.
Even without consideration of the fact that Bromberg had up to June 23, 1959, to make the
tender, we consider Milner v. Dudrey, supra, direct authority for holding that the option had
been duly exercised and a tender properly made. Accord: Killam v. Tenney, 229 Or. 134, 366
P.2d 739, 746; Bonde v. Weber, 6 Ill.2d 365, 128 N.E.2d 883, 888, 889; H. M. R., Inc. v.
Boeckenhauer, 24 Ill.2d 65, 179 N.E.2d 613, 615.
It should be noted that Finnell contends not only that the written escrow instructions
submitted to her by the bank for her signature with the information that the money was on
deposit and would be paid immediately upon presentation of the stock was not a proper
exercise of the option, but also that the situation whereunder she was notified that the
money was in the bank for immediate payment on delivery of the stock was not a
compliance with the option requirement for a tender by cashier's check or money order.
upon presentation of the stock was not a proper exercise of the option, but also that the
situation whereunder she was notified that the money was in the bank for immediate payment
on delivery of the stock was not a compliance with the option requirement for a tender by
cashier's check or money order. If she doubted that the money was at the bank, this could
have been most simply verified by an inquiry. It should be remembered that the option
contract was executed not only by Mrs. Finnell but also by her two sisters, each of whom had
a block of stock in the corporation. The acceptance of the option was likewise directed to all
three. Mrs. Finnell lived in Reno, but the two sisters lived in Los Angeles. Mrs. Finnell made
no objection to the fact that the deposit had been made in the Bank of America at Los
Angeles. She did not even make the suggestion that it would be more convenient to her if the
money were deposited at her bank at Reno. Indeed the testimony shows that it was
contemplated by Mrs. Finnell that all the stock would be deposited by her sister in Los
Angeles. There is no occasion for applying or further investigating the rule relied upon by
Finnell as stated in 86 C.J.S., Tender 19, at 568, as follows: A deposit in a bank or other
designated place of payment, on the day fixed, of the amount due is a good tender if the
obligation is payable at such bank or depository, but not otherwise. Indeed the text goes on
to express the general rule that this objection is generally considered waived by a failure to
object. We are satisfied that the deposit in the bank to the end that it might be picked up upon
the deposit of the stock was the reasonable way to make the tender. One would otherwise
have to picture the awkward situation where the tenderer offers the cashier's check with one
hand while holding out the other hand to receive the stock. If a group of stock certificates
should be tendered, it would be necessary to examine each certificate and tally the total of the
shares represented. And the other party would have to examine the check to determine if it
were in the proper sum and properly executed by the cashier or assistant cashier of the bank.
the bank. Business is simply not ordinarily conducted in such manner in these days. The safe,
reasonable, convenient, businesslike, and customary manner of closing such a transaction is
through a bank.
[Headnotes 3, 4]
2. A tender is excused where the vendor has repudiated the contract. H. M. R., Inc. v.
Boeckenhauer, supra, and cases therein cited. As stated in 17 C.J.S., Contracts 472, at 973:
Where a party bound by an executory contract repudiates his obligation before the time for
performance, the promisee has, according to the great weight of authority, an option to treat
the contract as ended so far as further performance is concerned, and to maintain an action at
once for the damages occasioned by such anticipatory breach.
[Headnote 5]
This leads us to the question discussed at length by both parties whether or not Finnell
repudiated the contract at a time when Bromberg still had some three weeks to make his
tender. We have referred to the court's finding that Finnell told Bromberg's agent that she had
received advice that the option contract was illegal, and that she was not bound by it and
would not have to deliver the stock; and to the testimony that Finnell said that she had taken
such advice and was not going to deliver the stock. This, in our opinion, is a classic example
of an anticipatory breach, although the parties discuss it under the proposition of whether or
not there was a repudiation. Mrs. Finnell denied this and asserted that she had only refused to
sign the formal escrow instructions. This direct contradiction was, as noted, resolved by the
trial court.
[Headnote 6]
3. However, appellant contends that, as the case was originally tried before Judge A. J.
Maestretti who died before deciding it and then, by stipulation of the parties, was submitted
to Judge John W. Barrett upon the testimony taken before Judge Maestretti, our rule,
uniformly applied, that we will not disturb a finding made by the trier of the facts where
the facts are in dispute or where there is substantial evidence to support the finding, does
not apply.
applied, that we will not disturb a finding made by the trier of the facts where the facts are in
dispute or where there is substantial evidence to support the finding, does not apply. She
contends that under such circumstances this court may ignore the findings of the trial court
and may substitute its own, and she cites many federal cases supporting in more or less
degree such contention. While such may be the rule in the federal courts, it is not the rule in
this state.
In Garaventa v. Gardella, 63 Nev. 304, 309-313, 169 P.2d 540, 543-545, it was urged,
under an exactly similar situation, that we should reexamine the entire case, determine for
ourselves the weight of the evidence and credibility of the witnesses, and draw our own
conclusions. That is what we are urged to do here. The question was discussed at length
under our constitutional provisions for original jurisdiction in the district court and appellate
jurisdiction only in this court. We there said: In our opinion the correct rule is that even
where the evidence was all in writing, the trial court's findings will not be set aside unless
clearly or manifestly against the weight of the evidence, or without any reasonable support
therein. Of the numerous authorities sustaining this rule, we cite but a few which give the
reasons for their holdings.
* * * * *
The conclusion we have reached in the foregoing discussion is based squarely upon the
ground that in cases like the present this court has no power or jurisdiction to weigh the
evidence without regard to the findings of the trial court, but can only consider the evidence
for the purpose of determining whether there was any substantial evidence to support such
findings, and whether the conclusions reached by the lower court were clearly wrong.
We again considered the question in Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98, and
adhered to Garaventa. Finnell claims that the testimony on which Bromberg relies is
incredible, but we do not find it so.
4. Appellant contends that the finding of damage in the sum of $99,484.93 is not supported
by the evidence. We have seen that Finnell repudiated her option contract on June 2, 1959.
The judgment was based on the difference between the market value of the stock at $2.00 per
share, namely, $142,121.33 and the stock at the option price of 60 cents per share or the sum
of $42,636.40. Two dollars per share was the value of the stock on May 25, 1959. From that
date to May 29 it varied between $2.00 and $1.80, but no value of the stock appears as of
June 2. Bromberg supports the finding of damage under the following rule quoted from 18
C.J.S., Corporations 414, at 1001: Where the purchase price has not been paid, the
measure of damages is ordinarily the difference, if any, between the contract price and the
market value of the stock at the time when and where it should have been delivered, together
with interest thereon from the time of the breach * * *. He then points out that the record
shows a market value of at least $2.00 per share from May 20 through May 25, 1959. It is
then his theory, developed during the oral argument, that as he had accepted the option on
May 20 it was presumably the thought of the trial court that five days constituted a reasonable
time for delivery of the stock, and that on such date the breach occurred, so that May 25
should be the date on which the value of the stock should be based. However, there is nothing
in the record to show that such theory was the basis of the court's judgment, or any evidence
of rule or custom on the stock exchange or otherwise in support thereof.
[Headnote 7]
It was not until June 2, 1959, that Finnell repudiated the contract. Up to that date
Bromberg was willing to accept the stock. He kept importuning Mrs. Finnell, as late as June 1
and June 2, 1959, to deliver it to the bank. He did not consider that there was a breach on
May 20 or May 25 or at any time until June 2. He commenced his action on June 11. The only
real basis for fixing the damage would be the value of the stock on June 2, 1959.
We consider that the judgment must be affirmed in all respects, except the fixing of the
amount of damage and that the case must be remanded for a limited new trial on this issue. It
is so ordered. No costs are awarded.
McNamee, J., concurs.
Thompson, J., concurring:
This case was presented to the lower court and here on the proposition that Finnell's
breach of the option contract occurred when she failed to deliver her stock into escrow at the
Los Angeles bank within a reasonable time after Bromberg had exercised his option to
purchase. On May 20, 1959 Bromberg gave written notice of election to exercise his power of
acceptance and also made a tender of the purchase price through escrow. Nothing remained
for him to do, assuming that his tender of the purchase price through escrow was a proper
tender. The legal battle was waged below and here over this point, i.e., whether the tender of
payment through escrow was legally sufficient. I agree with my colleagues that it was. The
escrow instructions are clear that, upon deposit of the stock, the money would be immediately
paid and Finnell would have no further interest in the escrow. This fact alone distinguishes
this case from McCall v. Carlson, 63 Nev. 390, 172 P.2d 171, so heavily relied on by
appellant. As to Finnell, the escrow arrangement here proposed amounted to no more than a
request that she deliver the stock to the bank as Bromberg's agent, rather than to Bromberg
directly. No conditions were imposed to give cause for complaint that Bromberg had not met
the terms of the option contract. Accordingly, I find no impropriety in using the market value
of the stock on May 25, 1959 for the purpose of computing damages. It was Finnell's duty to
deliver the stock within a reasonable time after May 20, 1959. Thus, I am not prepared to
state, on this record, that the trial court erred in deciding that five days was a reasonable time
to require Finnell's performance. Therefore, I would affirm the judgment below without
remand for a limited new trial.
Had the case been presented on the theory that Finnell's unequivocal repudiation of the
option contract on June 2, 1959 (I am not going to deliver the stock.), was an anticipatory
breach of her obligation to do so, a remand for a limited new trial would be appropriate.
1
However, the theory of anticipatory breach, as applied to this case, assumes that Bromberg
had not completely exercised his option on May 20, 1959. Only if we were to decide that
Bromberg's tender of payment through escrow was improper, or if we refused to decide that
question at all, would the theory of anticipatory breach, as a predicate for recovery, come into
the case. In that event the record would support the following: (a) on May 20, 1959,
Bromberg gave written notice of election to exercise his power of acceptance. 1 Corbin,
Contracts 264, at 876; Milner v. Dudrey, 77 Nev. 256, 362 P.2d 439;
2
and (b) on June 2,
1959 Finnell unequivocally repudiated the option contract when 21 days still remained within
which Bromberg could tender payment of the purchase price. Such repudiation was an
anticipatory breach excusing the tender of payment by Bromberg, 4 Corbin, Contracts, at 920,
and giving him immediate cause for suit without waiting for the option period to expire. 4
Corbin, Contracts, at 853; Bonde v. Weber, 6 Ill.2d 365, 128 N.E.2d 883; cf. Cladianos v.
Friedhoff, 69 Nev. 41, 240 P.2d 208.
3

Thus it is manifest that the distinction between the two possible theories of recovery (each
being supported by the record) may affect the amount of damages to which Bromberg is
entitled. The market value of the stock fluctuated during May 1959. Its value on June 2, 1959
(the date to be used for fixing damages if the theory of recovery is anticipatory breach) may
be greater or less than it was on May 25, 1959 {the date which the trial court presumably
used, believing that Bromberg's tender of payment through escrow was proper).
____________________

1

The record does not disclose the market value of the stock on June 2, 1959. Hence, a remand for that
determination would be needed to fix damages.

2
The present case is to be distinguished from those cases in which the option holder is to exercise his option
only by the unilateral act of tendering payment of the purchase price. See: Bourdieu v. Baker, 6 Cal.App.2d 150,
44 P.2d 587, as an example.

3
The record shows that suit was commenced on June 11, 1959. The option period did not expire until June
23, 1959.
theory of recovery is anticipatory breach) may be greater or less than it was on May 25, 1959
(the date which the trial court presumably used, believing that Bromberg's tender of payment
through escrow was proper). I believe that an appellate court should sustain a judgment upon
the theory presented by counsel and used by the trial court, if it is sustainable on that ground.
Cf. Nelson v. Sierra Construction Corp., 77 Nev. 334, 364 P.2d 402 (concurring opinion).
However, as the judgment in Bromberg's favor is also sustainable on the theory of
anticipatory breach, with a remand for the sole purpose of recomputing his damages, I will
concur in the result.
____________
79 Nev. 230, 230 (1963) Pate v. Mead
NETTIE PATE and MATTIE GARRETT, Appellants, v.
CARSTEN MEAD and ELSIE MEAD BROWN, Respondents.
No. 4589
May 8, 1963 381 P.2d 230
Judge.
Proceeding for distribution of the estate of one who had died intestate. The lower court
rendered judgment from which an appeal was taken. The Supreme Court, Thompson, J., held
that evidence supported findings that deceased husband did not die without heirs but died
leaving half brother and half sister surviving so that heirs of his wife who had predeceased
him, dying intestate, were not entitled to his estate.
Judgment affirmed.
Hawkins, Cannon & Hawkins, of Las Vegas, for Appellants.
Edward C. Marshall and George L. Albright, of Las Vegas, for Respondents.
1. Descent and Distribution.
Evidence supported findings that deceased husband did not die without heirs but died leaving half brother
and half sister surviving so that heirs of his wife who had predeceased him, dying
intestate, were not entitled to his estate.
79 Nev. 230, 231 (1963) Pate v. Mead
surviving so that heirs of his wife who had predeceased him, dying intestate, were not entitled to his estate.
NRS 134.060, 134.160, 134.210.
2. New Trial.
There was no error in denying new trial for assertedly newly discovered evidence constituting letter by
which counsel sought to impeach testimony given by witness for opponents where testimony sought to be
impeached had been excluded by trial court in reaching its decision and it was doubtful if letter did
impeach, and, if it did, whether it struck material point in case.
OPINION
Over the objection of appellants, Nettie Pate and Mattie Garrett, the district court ordered
distribution of the estate of George Wilbur Mead to the respondents Carsten Mead and Elsie
Mead Brown. George Wilbur Mead died intestate at Las Vegas. He was predeceased by his
wife, Lillie Mead, who also died intestate. The appellants Nettie Pate and Mattie Garrett are
the sisters of Lillie Mead and claim the estate of George Wilbur Mead under NRS 134.210.
That statute provides that if a wife (Lillie Mead) dies intestate, leaving heirs, and the husband
(George Wilbur Mead) subsequently dies intestate, without heirs, his estate shall vest in the
heirs of the wife. After a full hearing the district court found that the respondents Carsten
Mead and Elsie Mead Brown were, respectively, the half brother and half sister of the
decedent, and ordered distribution to them in equal shares;
1
that George Wilbur Mead died
intestate, with heirs, and that the appellants' claim to his estate, based upon NRS 134.210
(that George Wilbur Mead had died intestate, without heirs), is unfounded. The sole question
presented is whether the proof offered supports the finding of relationship between the
decedent and the distributees.
____________________

1
NRS 134.060 provides that, if one dies intestate, leaving no issue, wife, father or mother surviving, his
estate descends, in equal shares, to his brothers and sisters. NRS 134.160 provides that kindred of the half blood
shall inherit equally with those of the whole blood in the same degree.
79 Nev. 230, 232 (1963) Pate v. Mead
[Headnotes 1, 2]
The district court's finding is amply supported. A need does not exist for a complete recital
of the proof. It is sufficient to relate that a court could reasonably find from the evidence that
(a) the decedent, George W. Mead, was the son of Charles Wilbur Mead and his first wife,
Elizabeth Joy Mead; (b) the respondents Carsten Mead and Elsie Mead Brown are the son
and daughter of Charles Wilbur Mead and his second wife, Mary Stuhr Mead; (c) the only
living kindred of the decedent, George W. Mead, are his brother and sister of the half blood,
namely Carsten Mead and Elsie Mead Brown.
2
As the record discloses a substantial
evidentiary basis for the lower court's determination of heirship, our function as an appellate
court is exhausted.
3

Affirmed.
____________________

2
Probative documentary records (birth, marriage and death certificates) reasonably show that Charles Wilbur
Mead was born in Pittsburgh, Pa. in 1863; when 18 years old (1881) he married Elizabeth Joy. Two children,
Maud, born May 27, 1883 and the decedent, George Wilbur mead, born March 2, 1885 were issue of this
marriage. On April 23, 1886, Elizabeth Joy Mead died. On December 20, 1887, Charles Wilbur Mead married
Mary Stuhr. Four children were the issue of this second marriage, two of whom are the respondents. Carsten
Mead and Elsie Mead Brown. All children of Charles Wilbur Mead's two marriages are dead, except the
respondents. The marriage certificate of Charles Wilbur Mead and his first wife was found by Carsten Mead in
the trunk of his mother who was Charles Wilbur Mead's second wife. The bank records of the decedent George
Wilbur Mead and the birthday book of respondents, together with the latters' oral testimony, reasonably establish
that the Charles Wilbur Mead, who was the father of the decedent, is the same Charles Wilbur Mead who was
their father.

3
Appellants also urge that error occurred when the lower court denied their motion for a new trial based upon
newly discovered evidence. We find no merit in their contention. The newly discovered evidence is a letter
which appellants' counsel proposed to use to impeach the testimony given by a witness for the respondents. The
testimony sought to be thus impeached was excluded by the lower court in making its decision. Furthermore, it is
doubtful whether the letter does impeach, and if it does, whether it strikes a material point in the case. Cf. Whise
v. Whise, 36 Nev. 16, 131 P. 967, 44 L.R.A.,N.S., 689; Bramlette v. Titus, 70 Nev. 305, 267 P.2d 620.
____________
79 Nev. 233, 233 (1963) Southern Nevada Plumbing v. Adelson
SOUTHERN NEVADA PLUMBING & HEATING CORP., a Nevada Corporation,
Appellant, v. MERVYN ADELSON and IRWIN MOLASKY, Respondents.
No. 4528
May 13, 1963 381 P.2d 232
Lien foreclosure suit by plumbing contractor. The trial court rendered judgment favorable
to defendants, and the plumbing contractor appealed. The Supreme Court, Badt, C. J., held
that trial court was not required to construe provision for payment for extra work at cost plus
unnamed percentage of cost in accordance with testimony that usual custom and practice in
the district was 20 percent, without recourse to the other contract provisions for cost plus 15
percent, particularly where 15 percent figure resulted from oral conference and agreement.
Affirmed.
Hawkins, Cannon & Hawkins, of Las Vegas, for Appellant.
George Rudiak, of Las Vegas, for Respondent.
1. Mechanics' Liens.
Evidence supported finding that certain extras claimed by plumbing contractor seeking to foreclose lien
were not extras or were extras in part only.
Evidence supported finding that plumbing contractor, seeking to foreclose lien, entered into contract
providing for furnishing and installing piping, valves, vents, pipe fittings, etc. as per plans and
specifications verbally outlined with full knowledge of contents of contract and plans and specifications.
Evidence supported allowance of $2,069.99 as legitimate variations and extras in performance of contract
by plumbing contractor which sought to foreclose lien and whose secretary's testimony concerning time
cards turned in was of extremely questionable value under circumstances developed in her
cross-examination.
4. Customs and Usages.
Trial court entertaining lien foreclosure action by plumbing contractor was not required to construe
provision for payment for extra work at cost plus unnamed percentage in accordance with testimony that
usual custom and practice was 20 percent, without recourse to other contract provisions for cost plus 15
percent, particularly where 15 percent figure resulted from oral conference and agreement.
5. Evidence.
Determination of competency of expert witnesses was largely in discretion of trial judge.
6. Evidence.
Testimony as to costs and values by construction expert and valuation expert who had been accepted by
court as competent to testify was not objectionable as hearsay although construction expert had gone over
job and pointed out work done to valuation expert who thereupon placed his value on extras involved in
lien foreclosure suit.
OPINION
This is an appeal by Southern Nevada Plumbing & Heating Corporation from a judgment
rendered in favor of Paradise Development Corporation, assignor of the respondents, in a lien
foreclosure suit by Southern Nevada. Appellant, a plumbing contractor, entered into a
contract to do the plumbing work contemplated by plans and specifications upon Sunrise
Hospital in Clark County, Nevada. A supplementary contract was subsequently entered into
for the furnishing of oxygen and vacuum piping, and later a further contract for the
installation of air conditioning. Upon the completion of the construction, appellant presented
bills for sundry items as extras on the first two contracts, and as the total labor and material
supplied by reason of the third contract, it being asserted that on the third contract no plans or
specifications were ever submitted to appellant, and that it was therefore necessary to bill
such jobs as labor and materials for all work done on such item upon a quantum meruit. The
aggregate of such items amounted to $40,609.62.
Payment having been refused, appellant filed its lien claim and suit to foreclose the same.
Respondents counterclaimed, claiming an overpayment of $S26.14, in addition to the sum
of $14,609.70 paid to clear their property from a lien for which appellant was responsible.
counterclaimed, claiming an overpayment of $826.14, in addition to the sum of $14,609.70
paid to clear their property from a lien for which appellant was responsible.
The trial occupied 23 days and the record of the testimony is contained in six typewritten
volumes, embracing 4,332 folios. The trial court made its findings, from which it concluded
that appellant was indebted to respondents in the sum of $12,239.78 plus interest and costs.
From the judgment and order denying new trial, this appeal was taken. Appellant specifies as
errors of law the following: (a) that the trial court erred in rejecting in toto sundry items
claimed as extras; (b) that the trial court erred in allowing sundry items of extras in sums less
than the amounts claimed when the only evidence introduced supported the amounts claimed;
(c) that it erred in admitting the testimony of three expert witnesses as to value; (d) that it
erred in applying as overhead and profit the figure of 15 percent against evidence requiring an
allowance of 20 percent; (e) that the trial court erred in finding that the contract for the air
conditioning was a valid and binding contract; and (f) that the court erred in disapproving the
time and material billing of items held by the court to be valid extras.
Treatment in the appellant's opening brief of the sundry items above referred to is by
listing, first, all the claimed extras that were disallowed as such, and secondly, such items as
were allowed in part only. In all, these comprise some 49 items, each one of which is
considered separately so that we have in effect that many separate lawsuits.
[Headnote 1]
This, then, is another case in which the appellant comes before this court and says: We
fully recognize the rule under which this court will not undertake to disturb the trial court's
finding when supported by substantial evidence or where the evidence is in substantial
conflict, but * * *. In the present instance this in effect is said 49 times. We have examined
what the briefs have to say in discussion of each item involved.
involved. As to doubtful items, we have had recourse to the record and to our court reporter's
transcript of parts of the oral argument. To discuss each of the items in dispute would be far
beyond the call of duty, conscientious as this court tries to be. The result is that as to each
item in dispute, we are unable to conclude that the court's finding lacks substantial support.
Some of the items however require special attention, and will be noted later.
The trial court's written opinion, on which the findings were based, indicates the
meticulous attention given to every item. The learned trial judge first noted that as to each of
the items, or nearly every one of them, there was testimony given by some six witnesses,
some for appellant and some for respondents so that the reasoning of the court is based in
each of these items upon what the court considers to be the most worthy testimony relating to
each of the items. Item by item the court indicates either: Held to be not an extra, or that of
the specific amount claimed, a specific reduced sum is allowed.
[Headnotes 2, 3]
As to the air conditioning contract, appellant contended that there was no express contract
because the alleged contract was too indefinite to be enforced, as no plans had been
submitted to it. Because of this assertion, appellant sought payment on a quantum meruit
basis in the amount of $28,777.57. Under the written contract appellant agreed to furnish and
install all necessary chilled and hot water piping, cooling tower condensing piping, valves and
air vents, pipe fittings, etc., as per plans and specifications as verbally outlined by Barney
Klinger of Kissell Refrigeration Corporation. All equipment to be furnished by Kissell * * *.
Total price $7,000.00. The court allowed $2,069.99 as legitimate variations and extras. The
court held that appellant entered into said contract with full knowledge of its contents and
of the plans and specifications detailing the work to be performed and materials to be
furnished * * *. Times, places, dates, and persons then present were investigated, indicating
to the trial court's satisfaction that appellant had knowledge of the plans before it made
its bid.
trial court's satisfaction that appellant had knowledge of the plans before it made its bid. The
labor portion of the air conditioning claim received its support entirely in the appellant's
secretary's testimony concerning the time cards turned in. This testimony, under the
circumstances developed in her cross-examination, was of extremely questionable value, the
court referring to appellant's sloppy business methods, and the labor costs and the material
costs of the asserted extras were flatly contradicted by respondents' witnesses. The record
furnishes ample support for the trial court's finding and conclusion.
Appellant's assignments of error as they pertain to the other contracts are equally without
merit. Item by item the trial court sifted the evidence.
One disputed item concerned the sum of $5,560.05 for overtime, of which appellant
charged $3,415.29 to respondents. The trial court found that as the hospital was urging the
contractor to get the job done, it was agreed that each pay half of the overtime charges, and
concluded that the sum of $2,780, under this agreement for this item, was properly chargeable
one half to each. The trial court accordingly allowed $2,780 of the $3,415.29 charge for the
overtime.
The court disallowed an item of $1,378.79 claimed for unloading, moving, and setting of
equipment in the kitchen and snack bar. (The court allowed $75.20 for part of this work.) The
contract provided, The kitchen equipment is to be furnished by others, but shall be
connected by SOUTHERN. Appellant contends that the requirement that the equipment be
connected by it does not include setting it in place. Respondents' witnesses testified that
according to the custom of the industry, where a specialty contractor has contracted to
connect up kitchen equipment, it is his obligation to set it up. The court held that the work of
setting up the equipment was within the scope of the contract.
The main part of appellant's claim for $2,102.10 relating to changes in plumbing to
accommodate service sinks was rejected by the court, whose action was apparently based
upon the testimony of respondents' foreman to the effect that they had not been installed in
accordance with the plans.
the effect that they had not been installed in accordance with the plans. Appellant contends,
however, that the extra work was the result of a change order signed by respondent Adelson.
Adelson testified, however, that he was there simply because the foreman was sick; that it
was represented to him that this particular work was not in the contract. He said, I don't
know anything about the contract but this work has got to be done. When appellant's
foreman insisted that in order to get the work done he had to have a change order signed,
Adelson replied: You make out the change order and I will sign it * * *. I explained to him,
as he was well aware, that I had no knowledge of the contract, all I knew was that the work
had to be done at this point, that I would sign a change order. If there was any problem we
would go over it later but the work had to be done at that point, so I signed the order * * * At
the time I signed these I did not actually know whether they were proper extras or not. The
court's conclusion that the extra work was the result of appellant's failure to follow the plans
and that the change order was made with the reservation that it was subject to future
examination and adjustment, finds substantial support in the evidence.
A similar situation applies to a claimed extra of $1,957.59 for material and labor for
connecting sterilizers and for repairing sterilizers. Here again respondent Adelson had signed
a change order under the circumstances above recited. And here again the testimony was in
direct conflict.
Appellant's claim for $2,121.80 for partial installation of a sprinkling system was reduced
by the court to the allowed sum of $1,450.65. The record shows ample substantiation of this
action, particularly in the testimony of one Rubidoux, a partner in Nevada Lawn Irrigation
Company who had begun and later completed the installation after appellant had done part of
the work.
And so it goes on and on, with item after item.
[Headnote 4]
Appellant asserts error in the trial court's application of a factor of 15 percent on overhead
and profit, asserting that the only evidence on the point is the testimony of appellant's
witnesses supporting a usual practice in Las Vegas of applying 10 percent for overhead, plus
10 percent for profit. The actual plumbing contract provided for payment of actual cost plus
15 percent of such cost, not to exceed $67,328.67. The work sheets attached contained the
provision: 1. Should any extra work (that is, extra labor and extra materials in addition to the
labor and materials herein set forth) be ordered, the plumbing contractor shall be paid for the
same * * *. The amount to be paid for same to be agreed upon in advance or to be the overall
cost price of said extra labor and materials plus ......% thereof. The witness Yanke, testifying
for appellant, said in this regard: Originally when I figured the job, this hospital job on my
original take-off figure sheet, I figured it at 10 and 10 and Mr. Molasky [one of the
respondents] saw it and he said that was too much money, he didn't want to pay that and then
we agreed at a flat 15% as it shows in the contract. It would not be in order for this court to
say that the trial court was compelled to construe the provision for payment of costs and
materials, plus .....%, in accordance with testimony that 20 percent was the usual custom
and practice in the Las Vegas district without recourse to other contract provisions for cost
plus 15 percent, particularly as this figure resulted from oral conference and agreement
between the parties.
[Headnotes 5, 6]
Appellant contends that the respondents' witnesses who testified to costs and values were
not properly qualified as experts, and that all their testimony should have been rejected as
incompetent. The determination of the competency of the expert witnesses was largely in the
discretion of the trial judge. Lockart v. Maclean, 77 Nev. 210, 361 P.2d 670; Board of
Regents of University, Etc. v.
Etc. v. Cannon, 86 Ariz. 176, 342 P.2d 207, 209; Webb v. Olin Mathieson Chemical
Corporation, 9 Utah 2d 275, 342 P.2d 1094, 1097, 80 A.L.R.2d 476. We find no error in his
rulings in this regard. In a few instances it is claimed that such testimony is based on hearsay,
because the construction expert had gone over the job and pointed out the work done to the
valuation expert, who thereupon placed his valuation on the extras in question. The
competency of both witnesses to testify having been accepted by the court, the hearsay rule
was not violated.
The few items we have discussed are representative of them all. We are satisfied that as to
each item there was a direct conflict in the evidence. The trial court resolved this conflict, in
most instances in favor of respondents, but allowed a total of $8,880.37 for extras. The duty
of an appellate court to review the evidence has been performed when it has determined that
there is substantial evidence to support the [findings]. Pinana v. State, 76 Nev. 274, 289, 352
P.2d 824.
In Friendly v. Larsen, 62 Nev. 135, 144 P.2d 747, involving a construction contract for
numerous improvements in the buildings on a ranch, the owner, like the respondents here,
contended that the labor and material items had been grossly padded. There the trial court
accepted almost in toto the testimony of the contractor and his witnesses in preference to the
testimony of the owner's witnesses. Here the trial court accepted the testimony of the owner's
witnesses and rejected that of the contractor's witnesses. There, as here, the court considered
certain items claimed to be extras and likewise considered value of labor and improvements
involved. The court said: [Appellants] claim that the evidence indicates clearly gross and
unwarranted padding of items of labor and material. Some of the items were disallowed by
the trial court. We think the trial court gave careful consideration to the evidence relative to
the items in question, and that the claims of the appellants were disallowed only in such
instances as the evidence on the part of the respondents substantially justified and sustained a
finding in their favor.
The next proposition deals with extras which appellants claim the respondents were
bound to supply under the terms of the contract. Certain claimed deductions were asked by
appellants of the trial court; some were allowed and others disallowed. We think the court
took the proper view of the law and the facts in making a determination of this claim.
Such, we think, is the case here. The judgment and the order denying new trial are
affirmed with costs.
____________
79 Nev. 241, 241 (1963) Long v. Flanigan Warehouse Co.
LEWIS G. LONG, Appellant, v. FLANIGAN WAREHOUSE COMPANY and INLAND
LADDER CO., a Corporation, Respondents.
No. 4583
May 22, 1963 382 P.2d 399
Appeal from judgment of the Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Action against retailer and manufacturer of a ladder for injuries sustained by plaintiff when
he used ladder which had been purchased by plaintiff's employer. From a judgment of the trial
court in favor of defendants, the plaintiff appealed. The Supreme Court, Thompson, J., held,
inter alia, that the plaintiff did not have a claim against the retailer or manufacturer based
upon breach of implied warranties of quality because of absence of privity, and that the
retailer did not have a duty to inspect or test the ladder for latent defects and hence could not
be held liable to the plaintiff on theory of negligence.
Judgment affirmed.
Nada Novakovich, of Reno, for Appellant.
Leslie A. Leggett, of Reno, for Respondent Flanigan Warehouse Company.
Vargas, Dillon & Bartlett and Alex. A. Garroway, of Reno, for Respondent Inland Ladder
Co.
1. Sales.
Under Uniform Sales Act, there are two implied warranties, (1) that goods are reasonably fit for
particular purpose of buyer, when he makes that purpose known to seller and it appears that he relies on
seller's skill or judgment, and (2) merchantable quality, when goods are bought by description from one
who deals in goods of that description, and not warranty is to be implied unless case falls within one of the
two categories. NRS 96.240, subds. 1, 2.
2. Sales.
A sale by description does not occur when goods are present and there is an opportunity to inspect. NRS
96.240, subds. 1, 2.
3. Sales.
Though implied warranty of fitness for particular purpose might be a predicate for recovery against
retailer, had plaintiff himself purchased the ladder which contained latent defect, it was not an available
remedy where ladder was purchased by plaintiff's employer, since the buyer's employee is not embraced by
the statutory definition of buyer. NRS 96.020, 96.240, subds. 1, 2.
4. Sales.
An employee who was injured by using defective ladder purchased by employer had no claim for relief
against retailer or manufacturer based upon breach of implied warranties of quality in absence of privity
with retailer. NRS 96.020, 96.240, subds. 1, 2.
5. Negligence.
If liability is to be placed upon retailer or manufacturer, it must be upon (1) his negligence, or (2) upon a
declared public policy that one who sells a product in condition dangerous for use shall be strictly liable to
its ultimate user for injuries resulting from such use, although the seller has exercised all reasonable care
and user has entered into no contractual relation with him.
The Supreme Court would decline to predicate error upon inability of trial court to foresee a new
development in product liability law, so that when issue of strict liability would be presented to a trial
court, ruling made, and appeal taken, Supreme Court would then decide the matter.
7. Pleading.
Every favorable factual intendment is to be accorded the plaintiff in ruling on involuntary dismissal
motion. NRCP 41(b).
8. Negligence.
Where retailer examined ladder received from manufacturer for transit damage, none was found, ladder
was placed in warehouse, and six days later it was sold to plaintiff's employer, retailer was under
no legal duty to inspect ladder for latent defect which allegedly caused plaintiff's
injuries, and absent a breach of duty, retailer was not liable on theory of negligence
for plaintiff's injuries.
employer, retailer was under no legal duty to inspect ladder for latent defect which allegedly caused
plaintiff's injuries, and absent a breach of duty, retailer was not liable on theory of negligence for plaintiff's
injuries.
9. Negligence.
In action against manufacturer of ladder for injuries sustained by user because of latent defect, questions
asked of officer of manufacturer called as adverse witness as to manufacturer's advertising brochures and as
to whether ladder was warranted or guaranteed to be safe were properly sustained on ground of irrelevancy
and immateriality, where as matter of law, plaintiff did not have claim for relief based on breach of implied
warranties, and questions did not tend to prove any of facts prerequisite to liability on theory of negligence.
NRS 96.240, subds. 1, 2.
10. Negligence.
To recover against manufacturer of ladder which caused plaintiff's injuries, on theory of negligence,
plaintiff had to offer probative evidence to show (a) a defect in ladder, (b) that it was in existence when
ladder left possession of manufacturer, and (c) that the defect came about as result of failure of
manufacturer to use ordinary care, and as to (c) doctrine of res ipsa loquitur was an aid, and in addition
proximate cause must be shown, that is, that defect claimed caused injury.
OPINION
The plaintiff (Long) brought suit for damages against the retailer (Flanigan Warehouse
Company) and the manufacturer (Inland Ladder Co.) of a wooden ladder. The retailer ordered
the ladder from the manufacturer on January 22, 1960. It was delivered to the retailer's
warehouse on January 26, 1960. On February 1, 1960 the retailer sold the ladder to a painting
contractor (Solvas). It was used occasionally thereafter. The plaintiff, a painter employed by
Solvas, claims that on August 12, 1960, a leg of the ladder split and collapsed because of
defective construction; that he was standing on the fourth step of the ladder when its left rear
leg collapsed; and that he fell to the floor and was injured.
The plaintiff's claim for relief against each defendant is two-fold: breach of the implied
warranties of quality, fitness for a particular purpose (NRS 96.240(1)) and merchantability
(NRS 96.240(2)), and negligence. The case was presented to a jury.
case was presented to a jury. At the close of the plaintiff's case in chief, each defendant
moved for involuntary dismissal. NRCP 41(b). The motion of the retailer was granted. As to
it, the district court ruled that the lack of privity barred liability on the implied warranty
theory. Regarding the negligence claim, that court concluded that the law does not impose a
duty upon the retailer to inspect or test the ladder for latent defects. Accordingly, its failure to
do so did not result in a breach of duty giving rise to a cause of action in the plaintiff based on
negligence.
The manufacturer's motion to dismiss was also granted as to the implied warranty count,
and for the same reason, lack of privity. However, its motion was denied as to the negligence
claim, and the case proceeded against the manufacturer on that theory alone. The jury
returned its verdict for the manufacturer. From the judgments entered the plaintiff appeals.
The assigned errors require our determination of the following questions: 1. Does the user
of a chattel have a claim for relief against a retailer or the manufacturer, or both, based upon a
breach of the implied warranties of quality, absent a contractual relationship (privity)? 2.
Should the concept of strict liability (liability without fault), which issue was not presented to
the trial court, apply to the claim of a user of a chattel against either the retailer or the
manufacturer?
1
3. Does the retailer of a chattel have the duty to inspect or test it for latent
defects? 4. Were certain questions (to later be specified) asked by plaintiff's counsel of an
adverse witness during the plaintiff's case in chief, to which objections were sustained,
relevant or material to the issues raised in the case against the manufacturer? The questions
relating to the implied warranties of quality as a predicate for the retailer's and
manufacturer's liability to one not in privity, are of first impression in Nevada.
____________________

1
After the judgment was entered in the present case, the Supreme Court of California approved and applied
the strict liability doctrine against the manufacturer of the product. Greenman v. Yuba Power Products, Inc., 27
Cal.Reptr. 697, 377 P.2d 897. Plaintiff-appellant asks us to apply it to this case.
The questions relating to the implied warranties of quality as a predicate for the retailer's
and manufacturer's liability to one not in privity, are of first impression in Nevada. The lack
of privity as a defense has been asserted by counsel and rejected by this court in two cases,
Underhill v. Anciaux, 68 Nev. 69, 226 P.2d 794 (foreign substance in Coca Cola bottle), and
Cosgriff Neon Sign Co. v. Mattheus, 78 Nev. 281, 371 P.2d 819 (collapsing brick pylon).
However, in each instance, liability was based on negligence. Implied warranty as a predicate
for liability was not involved in Cosgriff, while in Underhill though it was pleaded the point
was not decided.
2
Clearly the absence of contractual privity is not a defense for one whose
liability rests in tort. For this reason the asserted defense was rejected in Cosgriff and
Underhill. We must now decide whether such want of privity is a defense to a claim for relief
based upon a breach of the implied warranties of quality.
[Headnotes 1, 2]
1. In Nevada the implied warranties of quality on the sale of goods are governed by the
Uniform Sales Act. They are two: (a) a warranty that the goods are reasonably fit for the
particular purpose of the buyer, when he makes that purpose known to the seller and it
appears that he relies on the seller's skill or judgment, NRS 96.240(1) (see Kirk v. Stineway
Drug Store Co., 38 Ill.App.2d 415, 187 N.E.2d 307, for an excellent discussion as to the
proof of the seller's representation and the buyer's reliance); (b) a warranty of merchantable
quality, when goods are bought by description from one who deals in goods of that
description, NRS 96.240(2). No warranty is to be implied unless the case falls within one of
the two mentioned categories. The present case does not involve the warranty of
merchantable quality.
____________________

2
In Underhill, supra, the court stated, inter alia: It appears to be one for the application of the theory of
negligence, together with the doctrine of res ipsa loquitur, and was so treated in the decision of the lower court.
does not involve the warranty of merchantable quality. A sale by description does not occur
when the goods are present and there is an opportunity to inspect. Adams v. Peter Tramontin
Motor Sales, Inc., 42 N.J. Super. 313, 126 A.2d 358; Grass v. Steinberg, 331 Ill. App. 378, 73
N.E.2d 331.
[Headnote 3]
Though the implied warranty of fitness for a particular purpose might be a predicate for
recovery against the retailer, had the plaintiff himself purchased the ladder, Kirk v. Stineway
Drug Store Co., supra, it is not here an available remedy, because the ladder was purchased
by plaintiff's employer. The terms seller and buyer, are defined by the act, NRS 96.020.
Those definitions appear to have been drawn with the immediate parties to the sale (or their
legal successors in interest) in mind. The buyer's employee is not embraced by the statutory
definition. Where the parties to the lawsuit are not the immediate buyer and seller the weight
of authority is that such lack of contractual privity will bar recovery on an implied warranty
theory. 75 A.L.R. 2d 39; Prosser, Torts (2d ed.), p. 510. The Uniform Sales Act places many
additional obstacles in the path of liability in the case before us. The most eminent scholar in
this field of law, William L. Prosser, discusses them, 69 Yale L.J. 1009, at 1124 et seq., and
concludes: What all this adds up to is that warranty,' as a device for the justification of strict
liability to the consumer, carries far too much luggage in the way of undesirable
complications, and is leading us down a very thorny path. The courts which quote, in nearly
every other case, the statement that the remedies of injured consumers ought not to be made
to depend upon the intricacies of the law of sales,' have proceeded to entangle themselves in
precisely those intricacies like Laocon and his sons. All this is pernicious and entirely
unnecessary. No one doubts that, unless there is privity, liability to the consumer must be in
tort and not in contract. There is no need to borrow a concept from the contract law of sales;
and it is 'only by some violent pounding and twisting' that 'warranty' can be made to
serve the purpose at all.
and it is only by some violent pounding and twisting' that warranty' can be made to serve the
purpose at all. Why talk of it? If there is to be strict liability in tort, let there be strict liability
in tort, declared outright, without an illusory contract mask.
[Headnotes 4, 5]
However, some recent decisions have declared that lack of privity is not a defense to a
claim based upon breach of implied warranty. Spence v. Three Rivers Builders & Masonry
Supply, Inc., 353 Mich. 120, 90 N.W.2d 873; Continental Copper & Steel Industries v. Red
Cornelius, 104 S.2d 40 (Fla.App. 1958); B. F. Goodrich v. Hammond, 10 Cir., 269 F.2d 501;
Jarnot v. Ford Motor Co., 191 Pa.Super. 422, 156 A.2d 568; dictum, Beck v. Spindler, 256
Minn. 543, 99 N.W.2d 670; Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69, 75
A.L.R.2d 1. We decline to follow their reasoning. Clarity in our law will not be served by
applying the Uniform Sales Act to parties for whom its provisions were not designed. If
liability is to be placed upon either the retailer or the manufacturer, it must rest upon (a) his
negligence, or (b) upon a declared public policy that one who sells a product in a condition
dangerous for use shall be strictly liable to its ultimate user for injuries resulting from such
use, although the seller has exercised all reasonable care and the user has entered into no
contractual relation with him (liability without fault). We therefore hold that, as a matter of
law, the district court properly granted the motions for the involuntary dismissal of the claims
asserting a breach of the implied warranties of quality.
2. We turn next to discuss briefly the concept of strict liability in tort. In Greenman v.
Yuba Power Products, Inc., 27 Cal.Rptr. 697, 377 P.2d 897, Justice Traynor, writing for a
unanimous court, discarded the shackles of contract warranties and candidly declared that, A
manufacturer is strictly liable in tort when an article he places on the market, knowing that it
is to be used without inspection for defects, proves to have a defect that causes injury to a
human being.
a defect that causes injury to a human being. California has thus judicially declared its public
policy. As previously mentioned, Greenman was handed down after judgment was entered in
the present case. On this appeal, plaintiff-appellant has asked us to follow it.
[Headnote 6]
In Greenman plaintiff won his case against the manufacturer in the trial court. Thus, the
posture of that case on appeal would permit the Supreme Court to affirm the judgment, but
upon a new and different theory than was presented below. Here, however, the plaintiff lost
his case against the manufacturer. We are asked, on the basis of Greenman (which had not
then been decided), to declare that the trial court erred in failing to conduct the trial on a
theory not advanced by counsel nor at that time declared by any court to be the law. The issue
of strict liability in tort was not presented. We decline to predicate error upon the inability of
a trial court to foresee a new development in product liability law. When that issue (strict
liability) is presented to a trial court, a ruling made, and an appeal taken, we shall then decide
the matter. In this connection the words of Justice Harlan, dissenting, in Sanders v. United
States, 373 U.S. 1, 83 S.Ct. 1068, are particularly appropriate: I seriously doubt the wisdom
of these guideline' decisions. They suffer the dangers of pitfalls that usually go with judging
in a vacuum. However carefully written, they are apt in their application to carry unintended
consequences which once accomplished are not always easy to repair. Rules respecting
matters daily arising in the federal courts are ultimately likely to find more solid formulation
if left to focused adjudication on a case-by-case basis, * * *, rather than to ex cathedra
pronouncements by this Court, which is remote from the arena.
arena. In dealing with cases of this type, I think we do better to confine ourselves to the
particular issues presented. * * *
3

[Headnotes 7 8]
3. Did error occur when the trial court ruled, as a matter of law, that the retailer was not
negligent, and granted its motion to dismiss the plaintiff's claim based on negligence? We
think not. Though every favorable factual intendment is to be accorded the plaintiff, in ruling
on a 41(b) involuntary dismissal motion, Corn v. French, 71 Nev. 280, 289 P.2d 173; Gordon
v. Cal-Neva Lodge, Inc., 71 Nev. 336, 291 P.2d 1054; Gunlock v. New Frontier Hotel Corp.,
78 Nev. 182, 370 P.2d 682, the narrow question here posed is one of law. The facts are not in
dispute. The retailer received the ladder on January 26, 1960. It was examined for transit
damage. None was found. It was placed in the warehouse. Six days later it was sold to
plaintiff's employer. The defect, if one existed, was latent. The retailer did not inspect or test
for the claimed latent defect. The sole question is whether it was under a legal duty to do so.
We agree with the trial court that it was not. Burgess v. Montgomery Ward, 10 Cir., 264 F.2d
495; Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603, 158 A.L.R. 1402;
Restatement, Torts 402 (Supp.1948). Cf. Cosgriff Neon Sign Co. v. Mattheus, 78 Nev. 281,
371 P.2d 819. Absent a breach of duty, a liability based on negligence does not exist.
____________________

3
The problems posed by strict liability in tort are manifoldwhat parties are to be strictly liablethe
manufacturer, the retailer, the wholesaler? To what products should the doctrine apply, if to be applied at
allfood, drink, inherently dangerous items, standardized merchandise? What defenses are available, if any at
all? The Prosser article, 69 Yale L.J. 1100-1148 is penetrating and helpful. Of interest also is NRS 14.080,
providing for the service of process on foreign manufacturers, producers and suppliers.
[Headnotes 9, 10]
4. An officer of the manufacturer was called by plaintiff's counsel as an adverse
witness during presentation of the plaintiff's case in chief. The court sustained the objections
of irrelevancy and immateriality made by counsel for the manufacturer to a series of questions
about the manufacturer's advertising brochures; also to the question whether the ladder was
warranted or guaranteed to be safe. Its ruling is asserted as error. We have already held, as a
matter of law, that the plaintiff does not have a claim for relief based upon an asserted breach
of the implied warranties of quality. Hence, the questions are not relevant or material to that
theory of recovery because it does not exist. Nor do we deem the questions relevant or
material to the charge that the manufacturer was negligent. To recover on that theory of
liability the plaintiff had to offer probative evidence to show (a) a defect in the ladder; (b) that
it was in existence when the ladder left the possession of the manufacturer; and (c) that the
defect came about as the result of the failure of the manufacturer to use ordinary care. As to
(c) the doctrine of res ipsa loquitur is an aid. Cf. Underhill v. Anciaux, 68 Nev. 69, 226 P.2d
794. In addition, proximate cause must be shown, that is, that the defect claimed caused the
injury. The questions asked do not tend to prove any of those facts. The trial court ruled
correctly.
Affirmed.
____________
79 Nev. 251, 251 (1963) Durando v. Mapes Enterprises, Inc.
ART DURANDO, Appellant, v. MAPES ENTERPRISES, INC.,
a Nevada Corporation, Respondent.
No. 4586
May 27, 1963 381 P.2d 683
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Action by patron against restaurant for mouth injuries allegedly sustained when patron bit
into ice cream containing piece of glass. From an adverse judgment of the trial court the
patron appealed. The Supreme Court, Badt, C. J., held that evidence supported finding that
mouth injuries sustained by patron were minimal and that patron was adequately
compensated by $750 pre-trial settlement paid by ice cream company's insurer, and that
patron was not entitled to further recovery from restaurant.
Affirmed.
Springer & Newton, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey and Folsom, of Reno, for Respondent.
1. Damages.
Evidence supported findings that mouth injuries sustained by restaurant patron on biting into ice cream
containing piece of glass were minimal and that patron was adequately compensated by $750 pre-trial
settlement paid by ice cream company's insurer.
2. Damages.
Restaurant patron who was adequately compensated for mouth injuries sustained on biting into ice cream
containing piece of glass by $750 pre-trial settlement paid by ice cream company's insurer was not entitled
to further recovery from restaurant.
OPINION
Of appellant's three assignments of error, the first two were abandoned. The third, liberally
construed, is that the findings are not supported by the evidence.
that the findings are not supported by the evidence. The trial court found as follows:
That the defendant, at all times mentioned in plaintiff's complaint, was a Nevada
corporation owning and operating a restaurant known as the Mapes Coffee Shop, to which the
general public was invited for the consumption of food; that said defendant warranted to the
general public, including plaintiff, that the food prepared, served and sold by it was
wholesome and fit for human consumption; that on or about July 3, 1960, plaintiff was a
paying patron in said restaurant and at said time and place ordered strawberry ice cream
containing a piece of glass; that the injuries sustained by plaintiff as a result of having the
upper gums of his mouth coming in contact with said glass were minimal; that plaintiff was
paid Seven Hundred Fifty Dollars ($750.00) by the insurance carrier for Chism Ice Cream
Company in settlement of all claims that said plaintiff had against said Company, arising out
of said incident; that said amount more than compensated said plaintiff for damages resulting
from said injuries aforementioned; that said plaintiff is not entitled to recover further damages
against the defendant herein; and that said defendant and its duly authorized agents and
servants were not negligent in serving to plaintiff said ice cream containing glass.
The opening statement made to the court by plaintiff's counsel admitted receipt of the sum
of $750 from [Chism] Ice Cream Company.
[Headnote 1]
Appellant does not attack the court's conclusion that the receipt by plaintiff of said sum of
$750 was admissible in evidence to be considered by the above entitled court for the purpose
of mitigating or reducing damages sustained by said plaintiff. In its finding that plaintiff's
damage was minimal and that said amount more than compensated plaintiff for damages
resulting from his injuries, the court's further conclusion that judgment be entered in favor of
defendant and against plaintiff was fully justified.
[Headnote 2]
As the findings find substantial support in the evidence, and as plaintiff has been fully
compensated for his injuries and is not entitled to be twice compensated, Waters v.
Stevenson, 13 Nev. 157, Hansen v. Collett, 79 Nev. 159, 380 P.2d 301, the judgment must be
affirmed with costs.
It is so ordered.
McNamee, J., and Mowbray, D. J., concur.
Justice Gordon Thompson being disqualified, the Governor commissioned Honorable
John C. Mowbray, Judge of the Eighth Judicial District, to sit in his place.
____________
79 Nev. 253, 253 (1963) Rice v. Clark County
JUANITA RICE, Special Administratrix of the Estate of DAVID H. ORMONT, Deceased,
Appellant, v. Clark County, a Political Subdivision of the State of Nevada; HARLEY E.
HARMON, ARTHUR OLSEN and CLESSE M. TURNER, Individually, and as the Clark
County Commissioners; PRESS LAMB, Individually, and as Superintendent of Roads of
Clark County, Respondents.
No. 4588
May 27, 1963 382 P.2d 605
Appeal from the Eighth Judicial District Court, Clark County; John Mowbray, Judge.
Action against county, its commissioners, and superintendent of roads, for damages for
wrongful death, presenting question of sovereign immunity of county in operation of
highways. The trial court rendered judgment for defendants and plaintiff appealed. The
Supreme Court, McNamee, J., held that sovereign immunity does not extend to counties so as
to relieve them for their negligent operation of roads.
Reversed.
Badt, C. J., dissented.
Wodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Appellant.
Edward C. Marshall, District Attorney, Charles L. Garner, Chief Civil Deputy District
Attorney, Clark County, and V. Gray Gubler, of Las Vegas, for Respondents.
1. Highways.
Sovereign immunity does not extend to counties so as to relieve them for their negligent operation of
roads. NRS 244.245, 244.250, 403.020, 403.090.
2. Constitutional Law; Highways.
As counties' immunity from liability for negligence in operation of roads was court made, court as well as
legislature was empowered to reject it.
3. Highways.
As sovereign immunity does not extend to county in negligent operation of roads, it would not extend to
individual county officials.
4. Counties.
Where county commissioners reject claim in entirety, it is not required to be filed with auditor. NRS
244.215, 244.245, 244.250, 244.255.
Misjoinder of parties is not a cause for dismissal of an action. NRCP 21.
OPINION
This is an action to recover damages for the wrongful death of one Ormont brought by his
special administratrix against several defendants. Appeal is from the judgment of dismissal
entered in favor of the above-named respondents.
Three questions are presented on this appeal:
1. Were the respondents entitled to a dismissal on the ground of governmental immunity?
2. Is the presentation of an unaudited claim to the county auditor a condition precedent to
instituting a suit against the county upon such claim?
3. Is a misjoinder of parties a cause for dismissal of a cause of action? If any of the above
three questions can be answered in the affirmative, the judgment of the trial court must
be affirmed.
If any of the above three questions can be answered in the affirmative, the judgment of the
trial court must be affirmed.
As to the first question we are required to determine whether the doctrine of sovereign
immunity insofar as it applies to counties and county officials in the construction and
maintenance of public roadways should be repudiated.
It is conceded that the weight of authority sustains county immunity when the county is
acting in its governmental capacity, and likewise, the weight of authority establishes the rule
that the maintenance of roads and highways by a county is a governmental function.
We recognized the rule that a county cannot be sued without legislative consent in McKay
v. Washoe General Hospital, 55 Nev. 336, 33 P.2d 755, 36 P.2d 78. But in Granite Oil v.
Douglas County, 67 Nev. 388, 219 P.2d 191, 16 A.L.R.2d 1069, we held that the rule has no
application when a county acts in a proprietary capacity, and in Hughey v. Washoe County,
73 Nev. 22, 306 P.2d 1115, this court reversed an order of dismissal against the county
apparently for the same reason, although no mention was made whether or not the county was
acting in its proprietary capacity.
With respect to cities in their operation and maintenance of streets, a different rule has
been followed in this state.
In McDonough v. Virginia City, 6 Nev. 90, 93, the city was held subject to liability for its
negligent construction of an intersection of two of its public streets. A state statute provided
that the city had power to lay out, extend, and alter its streets. The court there said that the
language conferring this power is permissive. But although it is thus left optional with the
city to open streets * * *, still if it undertake to do it, the act must be done with that degree of
care for the rights and personal safety of individuals which natural persons are required to
exercise under similar circumstances.
In Barnes v. City of Carson, 33 Nev. 17, 43, 110 P. 3, 4, where the city had been given a
similar discretionary power as to its streets, this court said: When it was established upon
the trial that the excavation was made in the street by the city and negligently left in the
nighttime without proper lights to indicate the same, and that by reason thereof the
plaintiff was injured, there was nothing left for the court and jury to determine but the
amount of damages."
established upon the trial that the excavation was made in the street by the city and
negligently left in the nighttime without proper lights to indicate the same, and that by reason
thereof the plaintiff was injured, there was nothing left for the court and jury to determine but
the amount of damages.
To the same effect in the case of Pardini v. City of Reno, 50 Nev. 392, 400, 401, 263 P.
768, 770, 771, where the court held the duty of the city, implied from the grant of exclusive
control over its streets, is not a public duty owing to the public alone, but a private, corporate
duty * * *. The immunity extended to legislative or discretionary acts of a municipal
corporation does not apply to corporate acts of a purely ministerial character. Thus for the
first time this court based a city's liability on the ground that its maintenance of streets
constitutes a proprietary function.
In Las Vegas v. Schultz, 59 Nev. 1, 83 P.2d 1040, the liability of the city for negligently
allowing an obstruction to remain on a highway was upheld without any discussion of
municipal immunity.
Whether the existing rule in this state imposing liabilities upon cities for injuries resulting
from their failure to keep streets in a reasonably safe condition is based on the theory that the
duty to keep streets safe is a corporate or proprietary duty, or whether the duty is considered
governmental and liability is regarded as an exception to the general rule of nonliability for
acts done in the exercise of governmental duties, the result in either case is the same.
We are now asked to extend this liability to counties maintaining roads under powers
similar to those granted to the cities.
NRS 244.155 provides: The board of county commissioners shall have power and
jurisdiction in their respective counties to lay out, control and manage public roads, turnpikes,
ferries and bridges within the county, in all cases where the law does not prohibit such
jurisdiction, and to make such orders as may be necessary and requisite to carry its control
and management into effect.
NRS 403.090 states: The board of county highway commissioners shall have exclusive
control of all matters pertaining to the construction, repairing and maintaining of public
highways, roads and bridges within its county.
1

Under the decision of McDonough v. Virginia City, supra, such a grant of power was held
to be permissive rather than mandatory, and if a city exercised its discretion to exercise such
powers, it would become liable for its negligence in so acting.
Is there any logical reason why on the one hand a city should be liable for its negligent
construction or maintenance of its public roadways and a county under the same or similar
grant of power should not? We could easily supply an affirmative answer by holding that a
county in the operation of its roads and highways acts in a corporate or proprietary capacity as
was said with respect to the City of Reno in the Pardini case. Then under the authority of
Granite Oil v. Douglas County, supra, liability of the county necessarily would follow.
We prefer, however, under the circumstances of this case to say that sovereign immunity
does not extend to counties whether the operation of roads is considered a governmental or a
proprietary function. See Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618.
Although this court in Taylor v. State and University, 73 Nev. 151, 311 P.2d 733, held that
the state was immune from liability for negligence, we recognized that the rule of sovereign
immunity has been severely criticized.
In Johnson v. City of Billings, 101 Mont. 462, 54 P.2d 579, 581, 583, 584, the action was
against both the City of Billings and the County of Yellowstone. In holding that cities and
counties stand in the same relation to the traveling public with respect to the care of highways
and liability for injuries thereon, the court said: First, as to the differentiation between cities
and counties, it is correctly said: 'The reason of the rule which, in many cases, charges a
city * * * with liability and, under the same conditions of fact, exonerates a county, is
artificial and is to be sought for in historical sources; it is not supported by legal reason or
analogy.' 5 Thompson on Negligence, 302.
____________________

1
NRS 403.020 provides that the board of highway commissioners shall be composed of the regularly elected
and qualified county commissioners.
is correctly said: The reason of the rule which, in many cases, charges a city * * * with
liability and, under the same conditions of fact, exonerates a county, is artificial and is to be
sought for in historical sources; it is not supported by legal reason or analogy.' 5 Thompson
on Negligence, 302. The basis for the exemption of counties, originally, being lack of
corporate existence and want of power to raise corporate funds, where counties are, by law,
made public corporations and empowered to raise funds, the reason for the rule ceases and
the rule ought to fall with it; * * * it does not seem a sufficient answer to this argument to say
that counties are political subdivisions of the state, for cities are political subdivisions * * * as
fully as counties are, and in this respect, the keenest vision can discover no difference
between the two classes of public corporations.' 1 Elliott on Roads & Streets (4th Ed.) 599.
* * * * *

Being unembarrassed by any former opinion of this court on the question directly before
us for determination, we discard precedent and refuse to perpetuate the error of other courts
throughout the Union * * *.
To soften this blow, however, the Montana court unhappily added: In repairing the
highway, the county was acting voluntarily and in its proprietary capacity, and not under the
mandate of the statute to keep the highways in repair.
In 1961 the California Supreme Court decided the case of Muskopf v. Corning Hospital
District, 55 Cal.2d 211, 213, 11 Cal.Rptr. 89, 90, 359 P.2d 457, 458. The plaintiffs contended
that operating a hospital is a proprietary function of government. In holding the defendant
liable for negligence that court refused to base its action on such dubious ground, and stated:
After a re-evaluation of the rule of governmental immunity from tort liability we have
concluded that it must be discarded as mistaken and unjust.
The case of Stone v. Arizona Highway Commission, 381 P.2d 107 (Ariz. 1963), abolished
the rule of sovereign immunity in Arizona. The supreme court there said: "After considering
all the facets of the problem, we feel that the reasoning used by the California court in
Muskopf v. Corning Hospital District, supra, has more validity and therefore we adopt it.
After considering all the facets of the problem, we feel that the reasoning used by the
California court in Muskopf v. Corning Hospital District, supra, has more validity and
therefore we adopt it. The substantive defense of governmental immunity is now abolished
not only for the instant case, but for all other pending cases, those not yet filed which are not
barred by the statute of limitations and all future causes of action. All previous decisions to
the contrary are specifically overruled.
[Headnote 1]
In this opinion we need not go as far. We hold merely that sovereign immunity does not
extend to counties so as to relieve them for their negligent operation of roads.
[Headnote 2]
It is contended that it is for the legislature and not the courts to remove immunity. We so
stated in Taylor v. State and University, supra. There we were considering the liability of the
State of Nevada and the University of Nevada for negligence. Here, where only a county's
liability is involved, we do not hesitate to say that since its immunity was court made, this
court as well as the legislature is empowered to reject it. Muskopf v. Corning Hospital
District, supra.
2
Moreover, in Granite Oil v. Douglas County, supra, without awaiting
legislative action, we wiped out county immunity from tort liability when a county is engaged
in a proprietary function.
[Headnote 3]
If, in this case, sovereign immunity does not extend to the county as such, obviously it
would not extend to the individual county officials either.
The next question concerns the presentment of appellant's claim to the county in
accordance with the following statutes:
NRS 244.245: 1. No person shall sue a county in any case for any demand, unless he
shall first present his claim or demand to the board of county commissioners and the county
auditor for allowance and approval, and if they fail or refuse to allow the same, or some
part thereof, the person feeling aggrieved may sue the county."
____________________

2
See article entitled Sovereign Immunity commenting on Muskopf v. Corning Hospital District in 38
Calif.S.B.J. 177.
and if they fail or refuse to allow the same, or some part thereof, the person feeling aggrieved
may sue the county.
NRS 244.250: 1. All unaudited claims or accounts against any county shall be presented
to the board of county commissioners, duly certified by the claimant, within 6 months from
the time such claims or accounts become due or payable. * * *
NRS 244.255: No claim which has once been presented and rejected shall ever again be
considered or allowed by the same, or any subsequently elected or appointed, board of county
commissioners of the same county.
It appears from the record that appellant's claim was presented to the board of county
commissioners within the six months' period following the death of Ormont, and was
thereafter denied by the board. It does not appear, however, whether the claim was ever
presented to the county auditor.
The purpose of these statutes is found in NRS 244.215. This section provides: (1) The
county auditor may not sign his warrant until after the county commissioners have by an order
allowed the claim; (2) when the commissioners allow the claim, the auditor before payment
thereon can be made must endorse on such order his allowance; (3) if the county auditor
refuses to allow the claim the order is presented to the board of county commissioners who
then can by unanimous vote order the payment of the same; (4) if the auditor allows the claim
in part, a warrant shall issue for such part, unless the board by a similar unanimous vote,
allows a greater sum; and (5) the auditor may not draw his warrant unless the money is in the
particular fund.
[Headnote 4]
We conclude from these enactments that if the county commissioners reject a claim the
county auditor is not involved. He has no authority to allow or audit a rejected claim. It is
unreasonable to construe these acts as requiring a claim to be filed with or a demand to be
made on the county auditor in the event of the complete rejection of an unaudited claim by
the commissioners.
[Headnote 5]
The last question is whether misjoinder of parties is a cause for dismissal of a cause of
action. NRCP 21 expressly provides that it is not. The contention that the board of Clark
County highway commissioners are indispensable parties, when it is composed exclusively of
the members of the board of county commissioners, has no merit.
Judgment is reversed and the cause remanded for trial.
Collins, D. J., concurs.
Thompson, J., being disqualified, the Governor commissioned Honorable Jon R. Collins,
Judge of the Seventh Judicial District Court, to sit in his place.
Badt, C. J., dissenting:
I dissent.
Although the majority opinion limits its holding as follows: We hold merely that
sovereign immunity does not extend to counties so as to relieve them for their negligent
operation of roads, I am fearful that the clear effect of the opinion will ultimately be the
complete abrogation by this court of sovereign immunity. It is frankly conceded by the
majority opinion that the weight of authority sustains county immunity when the county is
acting in its governmental capacity, and likewise, that the weight of authority establishes the
rule that the maintenance of roads and highways by a county is a governmental function. In
support of abandonment of the doctrine in its entirety, the opinion relies on Johnson v. City of
Billings, 101 Mont. 462, 54 P.2d 579, Stone v. Arizona Highway Commission, 381 P.2d 107
(Ariz. 1963), and Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359
P.2d 457. It might have added Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1;
Molitor v. Kaneland Community Unit District, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469;
Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618; Spanel v. Mounds View
School District, 118 N.W.2d 795 (Minn. 1962).
The reasons given in the opinions cited, attacking the governmental immunity doctrine are
quite persuasive, and most certainly the language used is condemnatory in the extreme of the
doctrine itself. Despite the fact that it is still the prevailing doctrine in the United States,
including the State of Nevada, this dissent is primarily based, not on the ground that as a
matter of public policy it should be retained (upon which I am presently expressing no
opinion), but on the ground that an abrupt abrogation of the doctrine, if such action appears
advisable as a matter of public policy, should be by way of legislative action.
On such phase of the subject the decisions relied upon are not so persuasive, and are not
persuasive at all in view of the decisions of this court and the conditions in this state.
In Granite Oil v. Douglas County, 67 Nev. 388, 219 P.2d 191, 16 A.L.R.2d 1069, we
placed counties within the same category as municipal corporations with reference to liability
when acting in a proprietary capacity, and held that sovereign immunity did not exist when
the county was acting in such capacity. We cited authorities from many states and quoted at
length, with approval, from Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371, 376,
in which the North Carolina court concurred in the view, that a county when acting in its
governmental capacity cannot be sued without legislative sanction, and that if it were thought
wise to exempt municipalities from tort liability in connection with operation of airports (the
point involved in Granite Oil), such exemption should be expressly granted by the
Legislature, rather than by judicial decree.
In Jensen v. Labor Council, 68 Nev. 269, 281, 229 P.2d 908, 913, we quoted Mr. Justice
Frankfurter, speaking for the court in International Brotherhood v. Hanke, 339 U.S. 470, 70
S.Ct. 773, 94 L.Ed. 995, to the effect that in the determination of matters of state policy the
clash of fact and opinion should be resolved by the democratic process and not by the judicial
sword. Mr. Justice Merrill in writing the opinion of this court noted that although this was
said with respect to the interpretation of statutes or with respect to property or contract
rights {Minnesota Mining Co. v. National Mining Co., 3 Wall.
that although this was said with respect to the interpretation of statutes or with respect to
property or contract rights (Minnesota Mining Co. v. National Mining Co., 3 Wall. 332, 70
U.S. 332, 18 L.Ed. 42), it should likewise apply to torts.
In Springer v. Federated Church, 71 Nev. 177, 180, 283 P.2d 1071, 1072, dealing with
immunity of charitable institutions, we were urged to overrule Bruce v. Young Men's
Christian Ass'n, 51 Nev. 372, 277 P. 798. While recognizing that Plaintiff unquestionably
has made out a strong and persuasive case for the abandonment of the beneficiary theory there
announced, we called attention to the fact that the overruling of the Bruce case would
impose liability retroactively so that we must adhere to stare decisis, and referred to Jensen v.
Labor Council, supra. We then said: If an abandonment of the rule of the Bruce case is to be
deemed desirable, the abandonment should be prospective rather than retroactive and the
determination should be legislative rather than judicial.
We should note here that the State of New York by statute abolished the sovereign
immunity doctrine in 1929 (Laws of New York, 1929, ch. 467, 1), and the State of
Washington by statute abolished it in 1961 (Wash. Sess. Laws 1961, ch. 136).
Some comment is necessary on the opinions relied upon in support of the abrogation of the
doctrine. The Montana case, Johnson v. City of Billings, supra, bitterly rejecting in the
strongest terms the entire doctrine of sovereign immunity, then indicates that the entire
opinion is dictum, using the following language: Conceding, for the purpose of this opinion,
that ordinarily the repair of * * * our highways constitutes a governmental function, it is not
so with respect to the particular situation presented here, a joint project of the city and
county in the construction of a drain ditch for the benefit of both, for which purpose the
county might have been included in a drain district and treated in the same manner as a
private corporation. The opinion then referred to an earlier Montana case in which, in the
construction work, "the city and county were each acting in the proprietary, and not in
the governmental, capacity."
the construction work, the city and county were each acting in the proprietary, and not in the
governmental, capacity.
In Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1, 9, 16, the single headnote
informs us that the lower court's holding of governmental immunity was affirmed, because
the Supreme Court of Michigan was equally divided. The majority decided to abrogate the
doctrine, but for future cases only, thus rendering that part of the majority opinion dictum. In
the opinion of Mr. Justice Carr the following was said:
We have cited herein a number of decisions from various States in support of the general
principle that in dealing with the doctrine of governmental immunity from damages for
tortious acts committed in carrying out governmental functions the legislature alone is clothed
with authority to modify, extend or abrogate such doctrine. Additional quotations from such
decisions to those above included herein would be merely cumulative and would extend this
opinion to an unnecessary length. Unquestionably the overwhelming weight of authority
supports the rule that has heretofore obtained in Michigan. Abrogation of that rule by this
Court is in excess of the powers vested in the judiciary of the State by the Constitution
adopted by the people acting in their sovereign capacity. The practical situation presented is
that if the legislature deems it necessary so to do it may act to modify, or even abrogate
entirely, the doctrine of governmental immunity. It is also true that the people acting under
the initiative provisions of the State Constitution may accomplish a like result by legislation
or by Constitutional amendment.
On the opposite side the opinion by Mr. Justice Edwards said:
All distinguished writers recommend corrective legislation, enacted with the adjusted
detail carefully drawn statutes only can provide. So do I. But what is an appellate court to do
when the legislative process remains comatose, year after year and decade after decade, the
court meanwhile bearing the onus of what was done judicially during the dim yesterdays
and maintained to this day by the self-stultifying fetish of stare decisis?
was done judicially during the dim yesterdays and maintained to this day by the
self-stultifying fetish of stare decisis? Must the court continue to proclaim its impotence as
legislators shrug their responsibility with a nod of risus sardonicus toward the error-guilty
judicial branch? My answer is that this Court may relieve itself of past error by confessing
and adjudging that error, and that it may at the same time force what all students of the
problem have rightly sought for lo these many years; a statute relieving the injured citizen
from the total burden of municipal negligence and still controlling the result so that municipal
functions may be carried on without serious financial risk. (Emphasis supplied.)
In the concurring opinion in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618,
627, which approved both the abrogation of the sovereign immunity doctrine and that such
abrogation should, in the absence of legislative action, be accomplished by the court, it was
stated: The legislature still has the last word and may restore the court abolished rule if it
determines public policy so requires. This kind of reasoning does not appear to be logical
and merely indicates all the more strongly that such determination of policy should be made
by the legislature in the first instance.
In Spanel v. Mounds View School District, 118 N.W.2d 795, 804 (Minn. 1962), the trial
court dismissed an action on the ground of governmental immunity. The appellate court
decided that the doctrine should be abrogated, but that this should operate in futuro and felt
compelled to affirm the judgment of dismissal. In its closing paragraph it said:
It may appear unfair to deprive the present claimant of his day in court. However, we are
of the opinion it would work an even greater injustice to deny defendant and other units of
government a defense on which they have had a right to rely. We believe that it is more
equitable if they are permitted to plan in advance by securing liability insurance or by creating
funds necessary for self-insurance. In addition, provision must be made for routinely and
promptly investigating personal injury and other tort claims at the time of their occurrence
in order that defendants may marshal and preserve whatever evidence is available for the
proper conduct of their defense."
injury and other tort claims at the time of their occurrence in order that defendants may
marshal and preserve whatever evidence is available for the proper conduct of their defense.
We see, then, that the action of the trial court dismissing the claim against the school district
was affirmed, and the rule abrogating sovereign immunity made to apply only in futuro. This
is the treatment recommended in many of the cases, in all of which cases, then, virtually the
entire opinion becomes dictum. But this is simply legislating on matter not before the court.
The power of this court on appeal is governed by NRS 2.110 reading: Power of court on
appeal. This court may reverse, affirm or modify the judgment or order appealed from as to
any or all of the parties, and may, if necessary, order a new trial * * *. Following the
dissenting opinion in State v. Corinblit, 72 Nev. 202, 298 P.2d 470, in which the majority of
this court authorized neither a reversal nor an affirmance nor a remand but simply a
declaration of error, the legislature amended NRS 177.060, by the addition of NRS
177.065, so as specifically to permit the state to appeal questions of law in criminal cases
where such questions had become moot. So far as can be found, this is the only instance in
which this court has been authorized to determine moot questions, in other words, advisory
opinions. In some states, but not in Nevada, such course is specifically authorized.
Mr. Justice Schauer, with whom Mr. Justice McComb concurred, dissenting in Muskopf v.
Corning Hospital District, 55 Cal.2d 211, 359 P.2d 457, 463, convincingly spoke as follows:
As recently as 1958 this court, in Vater v. County of Glenn, 49 Cal.2d 815, 820 [4], 323
P.2d 85 (per Chief Justice Gibson, with only Justice Carter dissenting), although it expressly
recognized that there has been much learned criticism of the principle of governmental
immunity, held that abrogation or restriction of this doctrine is primarily a legislative matter.'
And Talley v. Northern San Diego Hosp. Dist. (1953), 41 Cal.2d 33, 41 [15], 257 P.2d 22
(per Justice Shenk, with only Justice Carter dissenting), upon facts materially identical
with those of the present case, held that 'Whether the doctrine of sovereign immunity
should be modified in this state is a legislative question.' Also this court, in denying
petitions for hearing after decisions of the District Courts of Appeal, has during the last
decade frequently adhered to this view.
Justice Carter dissenting), upon facts materially identical with those of the present case, held
that Whether the doctrine of sovereign immunity should be modified in this state is a
legislative question.' Also this court, in denying petitions for hearing after decisions of the
District Courts of Appeal, has during the last decade frequently adhered to this view. [Citing
many cases] But today's majority apparently impatient with the Legislature's failure to act as
speedily and comprehensively as they believe it should, usurp the legislative function, refuse
reasonable respect for the doctrine of stare decisis, and sweepingly announce (p. 90 of 11
Cal.Rptr., p. 458 of 359 P.2d) that After a re-evaluation of the rule of governmental
immunity from tort liability we have concluded that it must be discarded as mistaken and
unjust.'
No satisfactory answer has been forthcoming to destroy this logical and convincing
argument.
Mr. Justice Schauer's reference to the fact that the legislature enacted various statutes
concerning immunity during the period while California was holding that the abolishment of
governmental immunity was a legislative function finds an echo in our own situation. After
the City of Reno had been made defendant in many tort actions growing out of defective
sidewalks, the legislature of this state by an act approved March 28, 1957, Stats. Nev. 1957,
ch. 287, 5, amended the charter of the City of Reno by providing that the construction,
maintenance and repair of sidewalks, curbs and gutters within the city was declared to be a
governmental function and that no action, suit or proceeding shall be instituted or
maintained against the City of Reno, its officers and agents for injuries to persons or property
resulting from any failure on the part of the City of Reno, its officers and agents to construct,
maintain or repair any sidewalk, curb or gutter within the city.
The necessity for legislative action is further illustrated in an article entitled, The work of
the California Law Revision Commission on SOVEREIGN IMMUNITY, by Thomas
Stanton, of San Francisco, 38 Calif.
S.B.J. 177. The author first refers to Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11
Cal.Rptr. 89, 95, 359 P.2d 457, 463, in which it was determined in the majority opinion that
the doctrine of governmental immunity for torts for which its agents are liable has no place
in our law. The author notes that the decision in Muskopf was preceded by an extended
study by the Conference of the problem of sovereign immunity from liability, which
culminated in 1956 in the approval of a committee report, recommending the adoption of a
statute making public agencies in California liable for all torts committed by their employees
within the scope of their employment. (Emphasis supplied.) The action of the Conference
then came before the governors, and the board referred it to the California Law Revision
Commission. The California legislature in 1957 then authorized the Commission to make a
study to determine whether the doctrine of sovereign or governmental immunity in California
should be abolished or revised. The legislature then in 1961 enacted a statute suspending the
effect of Muskopf until the 91st day after the adjournment of the 1963 session, contemplating
that further legislative action would be taken prior to the deadline date, and it looked to the
Commission for recommendations on the form of such legislation. The Commission devoted
two years to the study, resulting in the submission to the legislature of a series of seven
recommendations. These are too detailed for inclusion here, but clearly indicate the complex
nature of the recommended legislationa veritable code governing the ramifications of the
proposed legislation, which in turn required amendment of other subsisting acts of the
legislaturethings that no court of last resort could possibly undertake. The factual matters
above recited are taken entirely from Mr. Stanton's article.
The matter of abrogating the rule of sovereign immunity is a classic example of a policy
that should be determined, if at all, by the legislature. Single car accidents on the vast
stretches of Nevada roads are becoming more and more frequent. Small rocks on the roads
may launch a hundred tort actions against the county.
The policing of such roads and the furnishing of investigators would be a major financial
problem, to say nothing of the clogging of the courts with jury actions, as well as the great
increase of burdens upon the appellate court. The legislature, with its investigative machinery,
should attack the problem and declare the policy under such rules as may seem proper.
But perhaps the most cogent reason against abrogating government immunity by court
decree is the fact that it operates in praesenti rather than in futuro as would an act of the
legislature. In the future all governmental agencies will appreciate the necessity of insuring
against liability. Persons who have in the past abstained from filing actions against a county
because of our declared rule of governmental immunity will, if not barred by limitations, be
clothed with the right to sue governmental agencies which, relying on our declared doctrine,
have not found it necessary to take out liability insurance.
I would affirm the judgment of the trial court in dismissing the action.
____________
79 Nev. 269, 269 (1963) Penn Moultrie v. District Court
PENN MOULTRIE CORPORATION; OPTICAL SUPPLY CO., Inc.; FORD CLOTHES,
Inc.; BRACKIN JEWELRY AND OPTICAL CO., Inc., Petitioners, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE
COUNTY OF CLARK, and DAVID ZENOFF, District Judge of Department One Thereof,
Respondents.
No. 4533
May 28, 1963 382 P.2d 397
Original proceeding in certiorari.
Proceeding by four corporations challenging jurisdiction of district court in separate
maintenance action to expropriate corporate funds deposited in a bank. The Supreme Court,
Badt, C. J., held that even if the husband were the alter ego of the petitioning
corporations, the district court lacked power to order pendente lite distribution of
corporate deposits for child support where the wife's attempt at substituted service on
resident husband was invalid and the husband had no notice of the district court's action
and had not been afforded an opportunity to be heard.
Supreme Court, Badt, C. J., held that even if the husband were the alter ego of the petitioning
corporations, the district court lacked power to order pendente lite distribution of corporate
deposits for child support where the wife's attempt at substituted service on resident husband
was invalid and the husband had no notice of the district court's action and had not been
afforded an opportunity to be heard.
Orders of respondent court vacated.
George Rudiak, of Las Vegas, for Petitioners.
G. William Coulthard, John Peter Lee, Franklin N. Smith, all of Las Vegas, for
Respondents.
1. Husband and Wife.
Wife's attempt at substituted service on husband who was a resident of state was invalid for want of
proper showing of due diligence in separate maintenance suit. NRCP 4(e)(1).
2. Husband and Wife.
Even if husband were alter ego of corporations which maintained bank deposits, district court lacked
power in separate maintenance suit to order pendente lite distribution of corporate deposits for child
support where wife's attempt at substituted service on resident husband was invalid and husband had no
notice of district court's action and had not been afforded an opportunity to be heard. NRCP 4(e)(1).
OPINION
This is an original petition for a writ of certiorari by four corporations, challenging the
jurisdiction of the district court to expropriate their funds on deposit at the First National
Bank of Nevada, Las Vegas, in a separate maintenance action to which the petitioners were
not named as parties. The separate maintenance suit was started by the wife, Frauke Elizabeth
Brackin against her husband, Nelson Louis Brackin. The wife claimed that the husband was
the alter ego of the said corporations. The lower court, by reason of such claim, first
restrained the disposition of corporate deposits at said bank, and subsequently ordered the
pendente lite monthly distribution of sums therefrom to the wife for child support.
said bank, and subsequently ordered the pendente lite monthly distribution of sums therefrom
to the wife for child support.
Initially the petitioning corporations who were not named as parties to the separate
maintenance action, by motion, sought to dissolve the temporary injunction. Perhaps they
could have attacked the court's jurisdiction to tie up their funds in a separate proceeding
addressed to that question. Cf. Garaventa Co. v. Dist. Court, 61 Nev. 350, 128 P.2d 266. They
did not choose so to proceed. Instead they elected to blunder into
1
the pending action in a
manner unknown to our statute or rules of procedure. Presumably their motion to dissolve
was in the nature of a request to intervene because their moneys on deposit might be
adversely affected by the court's disposition of the separate maintenance action. NRCP 24(a).
However, because of the circumstances hereinafter related, we do not find it necessary to
determine the legal significance of their entry into the separate maintenance action in the
manner described.
[Headnotes 1, 2]
The record before us reflects that the wife asserted the husband to be a Nevada resident.
However, personal service of process was not made upon him in Nevada, and the attempt at
substituted service is invalid for want of a proper showing of due diligence.
2
NRCP 4(e)(1);
Foster v. Lewis, 78 Nev. 330, 372 P.2d 679; State v. District Court, 68 Nev. 527, 238 P.2d
1125. Thus, jurisdiction over the husband in the separate maintenance action has not been
acquired. Were we to assume as true the wife's assertion that the husband is the alter ego of
the petitioning corporations, still the lower court lacked power to order pendente lite
distribution of corporate deposits for child support. In Matthews v. Matthews, 240 N.Y. 28,
147 N.E. 237, 38 A.L.R. 1079, it is said, "In its opinion the Appellate Division considered
this section unconstitutional as authorizing the payment of alimony and counsel fee out of
the sequestered property without notice to the defendant and before service of the
summons in the action upon him.
____________________

1
The present appellate counsel was not counsel below nor did he draw the pleadings for appellant in the
district court.

2
The affidavit reflects only affiant's conclusion, That despite diligent efforts on the part of the plaintiff
herein, his whereabouts are unknown to her at this time; that plaintiff has not reason to believe that defendant is
now in the State of Nevada.
it is said, In its opinion the Appellate Division considered this section unconstitutional as
authorizing the payment of alimony and counsel fee out of the sequestered property without
notice to the defendant and before service of the summons in the action upon him. We agree
that the defendant's property, whether he be resident or nonresident, cannot be paid out and
disposed of by an order of the court without some notice actual or constructive to the
defendant and an opportunity afforded him to be heard.
* * * * *
An abandoned wife where, as in this case, her husband is a nonresident, may sequester his
property; but the service of the summons by publication must be commenced as herein stated.
After he has been served by publication and is in default of appearance or pleading, the court
can enter judgment and dispose of the sequestrated property as it deems best for the interest
of the wife and children.
* * * * *
The plaintiff made out a summons and complaint in this action for separation. Without
having served them personally upon the defendant, she obtained an order sequestrating the
defendant's property and directing payment out of it for support and counsel fee. No order for
service by publication was obtained. Even if service by publication had been properly
commenced, the Special Term had no power to make immediate payments out of the
sequestered funds before service or judgment.
Accordingly, the orders entered below on June 15, 1962, and June 22, 1962, respectively,
authorizing distribution, pendente lite, of funds of the petitioning corporations on deposit
with the First National Bank of Nevada, Las Vegas, are vacated as having been made without
jurisdiction.
The order of June 8, 1962, ordering the defendant bank to pay certain sums to Frauke
Elizabeth Brackin out of moneys of Nelson Louis Brackin and moneys of the joint account of
Nelson Louis Brackin and Nelson Louis Brackin, Jr., and moneys contained in a safe
deposit box in the name of Nelson Louis Brackin, is not attacked in this proceeding, and
accordingly no order is made with reference thereto.
Louis Brackin, Jr., and moneys contained in a safe deposit box in the name of Nelson Louis
Brackin, is not attacked in this proceeding, and accordingly no order is made with reference
thereto.
No costs are awarded.
____________
79 Nev. 273, 273 (1963) Porter v. Funkhouser
DON R. PORTER, Appellant, v. PRESTON LEE FUNKHOUSER, Jr., MURIEL JOYCE
EVEREST, MERLA GENE HALE, and JOHN R. FUNKHOUSER, Respondents.
No. 4540
May 23, 1963 382 P.2d 216
Appeal from the Second Judicial District Court, Washoe County; Clel Georgetta, Judge.
Action for wrongful death of plaintiffs' mother as result of an automobile collision. The
trial court entered judgment for plaintiffs and defendant appealed. The Supreme Court,
McNamee, J., held that award of $35,000 compensatory damages to four adult children for
death of their 68-year-old mother was not excessive.
Affirmed.
[Rehearing denied June 24, 1963]
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Appellant.
R. P. Wait and E. J. Wait, Jr., of Reno, for Respondents.
1. Death.
In wrongful death action a jury is empowered to include damages for loss of probable future
companionship, society and comfort, along with damages for loss of services of monetary value. NRS
41.090.
2. Death.
Award of $35,000 compensatory damages to four adult children for death of their 68-year-old mother
was not excessive.
3. Death.
Award of damages in a wrongful death action for loss of probable future companionship, society and
comfort does not have to bear a reasonable relationship to pecuniary loss.
4. Death.
Wrongful death statute was not contradictory on its face although it authorizes a recovery of damages for
pecuniary loss, including loss of probable future companionship, society and comfort. NRS 41.090.
5. Damages.
Giving of instruction that it was within discretion of jury whether or not to take into consideration
reduced purchasing power of the dollar in arriving at amount of damages was proper.
6. Automobiles.
It was proper for court to give instruction as to legal definition of intoxication in action for wrongful
death arising out of defendant's operation of a motor vehicle even though intoxication was admitted in the
pleading and at trial, where defendant denied allegation of wantonness and recklessness.
7. Death.
Excluding evidence of a change of habits by defendant between time of accident and time of trial on issue
of punitive damages was not an abuse of discretion.
8. Death.
Refusal to instruct regarding present value or present worth of damages to be suffered in the future was
proper in action for wrongful death. NRS 41.090.
Even if failure to instruct that jury could take into account financial condition of defendant and his wife in
considering award of punitive damages, if any, was error, error was not prejudicial where award of $5,000
punitive damages, under the circumstances, was minimal as a punitive award, particularly in view of
allowance of $35,000 compensatory damages.
OPINION
This is a wrongful death action brought by the adult children of Barbara Jane Funkhouser
who died as a result of a collision between the car she was driving and a truck driven by
appellant. The amended answer admits negligence, intoxication, and proximate cause.
negligence, intoxication, and proximate cause. By jury verdict, respondents were awarded
$35,000 compensatory damages, $1,408.40 for funeral expenses, and $5,000 punitive
damages. By separate verdict, respondent Preston Lee Funkhouser, Jr., was awarded $525 for
damages to deceased's automobile.
Appeal is from the judgment based on the verdicts. Several errors are assigned.
Appellant claims that the verdict for $35,000 compensatory damages is excessive and that
the verdict for $5,000 punitive damages is wrong.
1. Appellant argues that the $35,000 compensatory damages awarded for the death of a
68-year-old woman to four adult children, only one of whom proved the loss of services of an
objective monetary value, is excessive as a matter of law.
[Headnote 1]
It is true that evidence of loss of services of monetary value in itself is insufficient to
sustain the award of $35,000. Under NRS 41.090, however, in wrongful death actions a jury
is empowered to include damages for loss of probable future companionship, society, and
comfort.
In Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824, we stated:
The core of the matter seems to be that an appellate court will disallow or reduce the
award if its judicial conscience is shocked; otherwise it will not.
[Headnote 2]
We are unwilling to say as a matter of law that the award of $35,000 compensatory
damages to four adult children is so grossly excessive as to shock the moral sense. We
conclude as we did in Novack v. Hoppin, 77 Nev. 33, 43, 359 P.2d 390, 395, that [u]nder the
particular facts and circumstances of this case, we are unable to say that the award of
damages was so excessive as to justify reversal on that ground. In that case, an award of
$175,000 compensatory damages was made to the widow and four minor children of the
deceased. See Sandifer Oil Co. v. Dew, 220 Miss. 609, 71 So.2d 752.
[Headnote 3]
Appellant further argues that the award for loss of probable future companionship,
society, and comfort must bear a reasonable relation to the pecuniary loss. The verdict does
not separate in its $35,000 verdict what part thereof was for the loss of probable future
companionship, society, and comfort. Furthermore, since recovery for future companionship,
society, and comfort is allowed by statute, and there is no requirement that such damages
must bear a reasonable relation to pecuniary loss, appellant's contention in this regard is
without merit.
[Headnote 4]
Appellant contends that the amendment to NRS 41.090 which allows the court or jury to
include damages for loss of probable future companionship, society and comfort has made
the statute contradictory on its face, because the word pecuniary is limited in meaning to
tangible financial loss. We reject this interpretation. The language of the statute is clear and
does not warrant such a construction. In this connection the construction placed on this statute
by appellant during the trial appears in Instruction No. 14 which as submitted by the appellant
and given by the court is as follows:
You shall award plaintiffs such damages as in your judgment will compensate them for
the pecuniary loss proved to have been sustained by them. The measure of such compensatory
damages is such sum as will equal the pecuniary or monetary loss that the plaintiffs will have
actually suffered by being deprived of the support, financial aid, services, earnings, and
probable future companionship, society and comfort by the death of the deceased. See Patton
v. Henrikson, 79 Nev. 197, 380 P.2d 916.
[Headnote 5]
2. Error is asserted because the court instructed the jury that it might take into account the
reduced purchasing power of the dollar in determining the amount of damages to be
awarded. He does admit in his opening brief, however: "The weight of authority supports
the trial court, but that alone does not necessarily make it correct."
brief, however: The weight of authority supports the trial court, but that alone does not
necessarily make it correct.
The instruction in this regard is as follows:
This Court takes judicial notice of the fact that the purchasing power of the dollar has
substantially decreased in recent years. Therefore, you may consider this as an established
fact in this case, and you may take this factor of reduced purchasing power into consideration
in determining the amount of damages awarded to the plaintiffs.
The court did not order but rather left it within the discretion of the jury whether or not to
take this factor into consideration in arriving at the amount of the damages. Such an
instruction is proper. Annot., 12 A.L.R.2d 611, 619, 643-645. There was no error in giving
[such an] instruction, nor would it have been error to refuse it, because it is hardly necessary
to remind a jury of the diminished purchasing power of the dollar as the jurors are reminded
of it almost daily when they purchase the necessaries of life. Risley v. Lenwell, 129
Cal.App.2d 608, 650, 277 P.2d 897, 925.
[Headnote 6]
3. Appellant contends that it was improper to instruct the jury as to the legal definition of
intoxication and on the statutory presumption of intoxication when intoxication is admitted in
the pleadings and at the trial and, therefore, is not in issue. It is appellant's argument that such
instructions unfairly point to intoxication as a factor in the case. In answer thereto,
respondents argue that appellant denied the allegation of wantonness and recklessness.
The evidence shows that appellant realized he had been drinking extensively and that his
physical condition had become impaired. Under such circumstances the giving of the two
instructions relating to intoxication was relevant to the issue of wanton and reckless
misconduct which required a jury determination whether appellant's conduct constituted a
conscious disregard of danger and probable injury to others.
[Headnote 7]
4. Where punitive damages are sought was it error for the court to exclude evidence of a
change of habits by appellant between the time of the accident and the time of trial?
Appellant contends it is, but cites no authority for such contention. Respondents assert that
apparently there isn't a case which has ever held such evidence to be admissible.
In sustaining the objection to such evidence the trial court said: * * * any change of heart
that a man may have after he has done a bad act which will justify punitive damages would
not be admissible in mitigation of the damage suffered as of that time. The door is closed
more or less as of the date of the incident.
Because such evidence concerns a collateral issue, it was within the province of the trial
judge to exclude the same whenever he concluded that such evidence might be harmful or
prejudicial to one party and of little benefit to the other.
[Headnote 8]
5. Error is claimed because the trial court refused upon request to instruct the jury
regarding the present value or present worth of the damages to be suffered in the future from
the wrongful act.
While it is the rule in certain actions for personal injury particularly under the Federal
Employers' Liability Act that a trial court must instruct the jury on request upon the subject of
present worth or present cash value of future loss of earnings, such rule is not applicable
under the circumstances of this case. Damages for loss of probable future companionship,
society, and comfort are subject to the rule relating to future pain and suffering. The weight of
authority is against a reduction in the allowance of damages for such intangible elements.
Therefore it was proper to refuse a requested instruction to such effect. Annot., 77 A.L.R.
1439, 1451; United States v. Harue Hayashi, 9 Cir., 282 F.2d 599; Texas and Pacific Railway
Company v. Buckley, 5 Cir., 232 F.2d 257; see Legare v. United States, S.D. Fla., 195
F.Supp. 557.
[Headnote 9]
6. During the trial the court admitted appellant's evidence of his financial affairs. In
instructing the jury it stated: In considering the amount of compensatory damages which you
shall award to the plaintiffs, you must disregard all evidence concerning the income or
financial condition of defendant Don R. Porter and his wife. The court then refused to give
appellant's requested instruction, which included the following: but you may take into
account the financial condition of the defendant Don R. Porter and his wife in considering the
award of punitive damages if any.
The general rule seems to be that where it is competent for plaintiff to prove the wealth of
defendant to increase the punitive damages it is equally competent for defendant to show a
lack of it to diminish them. 25 C.J.S., Damages 127; 17 C.J., p. 996, n. 10.
If we concede that the receipt in evidence of appellant's financial condition was proper and
that therefore the failure to give this instruction was erroneous, the error if any was not
prejudicial. The award of $5,000 punitive damages, under the circumstances of this case
where an advanced state of intoxication caused the death, is minimal as a punitive award,
particularly in view of the amount of compensatory damages allowed.
Affirmed.
Badt, C. J., and Breen, D. J., concur.
Thompson, J., being disqualified, the Governor commissioned Honorable Peter Breen,
Judge of the Fifth Judicial District Court, to sit in his place.
____________
79 Nev. 280, 280 (1963) Marshall v. District Court
THE STATE OF NEVADA Upon the Relation of EDWARD G. MARSHALL, District
Attorney of Clark County, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, and HONORABLE
JOHN SEXTON, District Judge Presiding in Department five thereof, Respondents.
No. 4617
May 29, 1963 382 P.2d 214
Original petition for writ of certiorari.
Petition for writ to review action of a district court judge in entering order requiring
district attorney to produce certain articles in murder prosecution. The Supreme Court,
McNamee, J., held that even if the action of the district court judge in granting the motion to
produce was an abuse of discretion, such an error not going to the jurisdiction of the district
court could not be corrected by certiorari.
Writ denied.
Harvey Dickerson, Attorney General, and Edward G. Marshall, District Attorney, Clark
County, for Petitioner.
John Manzonie and Drake DeLanoy, of Las Vegas, for Respondents.
1. Judges.
Where District Court Rules provided for assignment of cases to a specific judge for all purposes but that
any judge could sign orders if master calendar judge was unavailable, judge to whom murder prosecution
had not been assigned was authorized to shorten time and to hear motion to require district attorney to
produce certain articles and judge's resulting order to produce, even if erroneous in whole or in part, was
not without jurisdiction where assigned judge had done nothing except setting, vacating, and resetting the
trial. DCR 26; NRCP 83; NRS 3.020.
2. Courts.
The rule-making power given to district judges does not include power to adopt rules in conflict with
statute, and will not be construed to authorize them to limit jurisdictional power of a
judge properly sitting within a judicial district having more than one judge.
not be construed to authorize them to limit jurisdictional power of a judge properly sitting within a judicial
district having more than one judge. NRS 3.020.
3. Criminal Law.
Even if judge's action in granting motion was an abuse of discretion, such an error not going to
jurisdiction of court could not be corrected by certiorari.
OPINION
Certiorari is sought to review the action of respondent court. Its jurisdiction is challenged
on the ground that a criminal action charging the defendants therein with murder had been
assigned to Judge Zenoff, one of the judges of the Eighth Judicial District, pursuant to Rule
10 of the Rules of the District Court of Clark County, Nevada, who had set the trial date for
March 18, 1963; that on March 13, 1963, two motions in said criminal action were noticed
before Judge Sexton, judge of the Third Judicial District, who was sitting in Department 5 of
the Eighth Judicial District Court; that Judge Sexton shortened the time for hearing the
motions to the afternoon of March 13, 1963; and that over the objection of the district
attorney, orders were entered granting said motions.
In this proceeding we are concerned only with the order requiring the district attorney to
produce for inspection and copying the following: the autopsy report of the victim; any and
all photographs relevant to the action; all statements of all persons who testified at the
preliminary hearing or who will be witnesses at the trial; and a certain tape recording
theretofore given by defendant Valrie.
Said Rule 10 provides that after a criminal case is filed the Master Calendar Judge shall
assign it for arraignment and other proceedings as equally as possible among the judges of
the court and when said assignment is made said assignment is then for all purposes * * *.
Petitioner contends that because of the prior assignment to Judge Zenoff, Judge Sexton
had no jurisdiction to make the said order to produce.
Petitioner also cites Rule 26 of District Court Rules which provides that when any district
judge shall have entered upon the trial or hearing of any case, proceeding or motion, or made
any ruling, order or decision therein, no other judge shall do any act or thing in or about the
matter. This rule is not applicable in the present case, because it positively appears that Judge
Zenoff had done nothing in the case after the assignment to him other than setting, vacating,
and resetting the trial.
Clark County District Court Rule 11 provides that any available judge may sign certain
enumerated orders which do not include the order to produce. The final sentence of Rule 11
states: All other orders, except as hereinabove noted, shall be signed by the judge of the
Master Calendar if he be available, and if said Master Calendar Judge is unavailable then any
other judge deeming the order proper may sign it and the matter shall be referred to the judge
of the Master Calendar.
[Headnote 1]
The record shows that on March 13, the date Judge Sexton signed the order to produce,
Judge Zenoff was Master Calendar Judge and that he was not available. It thus appears in
construing Rule 10 in conjunction with Rule 11 that Judge Sexton was authorized to shorten
the time and to hear the motion. His resulting order to produce, even if erroneous in whole or
in part, was not without jurisdiction.
NRCP 83 provides: Each district court by action of a majority of the judges thereof may
from time to time make and amend rules governing its practice not inconsistent with these
rules. Copies of rules and amendments so made by any district court shall upon their
promulgation be furnished to the Supreme Court, but shall not become effective until sixty
days after approval by the Supreme Court and publication. In all cases not provided for by
rule, the district courts may regulate their practice in any manner not inconsistent with these
rules.
Inasmuch as the said rules of the District Court of Clark County, Nevada, have never been
approved by the Supreme Court, respondents contend that they have never become effective.
On the other hand, petitioner argues that NRCP 83 relates only to civil cases, and that the
rules made by district courts pertaining to criminal cases do not need supreme court approval
to become effective. It is unnecessary to determine this issue because of the provisions of
NRS 3.020 relating to jurisdiction of the district courts.
NRS 3.020 provides: In judicial districts where more than one judge has been provided
for * * *, such judges shall have concurrent and coextensive jurisdiction within the district,
under such rules and regulations as may be prescribed by law, and the district judges therein
shall have power to make additional rules and regulations, not inconsistent with law, which
will enable them to transact judicial business in a convenient and lawful manner.
[Headnote 2]
The rule-making power given to district judges by this statute does not include the power
to adopt rules in conflict with statute, and will not be construed to authorize them to limit the
jurisdictional power of a judge properly sitting within a judicial district having more than one
judge. Twaddle v. Winters, 29 Nev. 88, 85 P. 280, 89 P. 289; see Sullivan v. Nevada
Industrial Com., 54 Nev. 301, 14 P.2d 262.
[Headnote 3]
The action of Judge Sexton in granting the motion to produce was within his discretion,
and if there was an abuse of discretion such an error not going to the jurisdiction of
respondent court cannot be corrected by certiorari. See Pinana v. District Court, 75 Nev. 74,
334 P.2d 843.
Writ denied.
____________
79 Nev. 284, 284 (1963) Widett v. Bond Estate, Inc.
MYRON WIDETT Appellant, v. BOND ESTATE, INC., A Corporation, Aka Bond Estates,
Inc., and BENJAMIN JAFFE, Respondents.
No. 4514
May 31, 1963 382 P.2d 212
Appeal from judgment of the Eighth Judicial District Court, Clark County; John C.
Mowbray, Judge.
Action to recover a commission allegedly due for services in procuring financing for
purchases of equipment for a hotel. The trial court entered judgment for defendants and
plaintiff appealed. The Supreme Court, Thompson, J., held that plaintiff was not entitled to a
commission for services rendered in securing a commitment where commitment required a
life insurer to guarantee performance as a condition of committing party's participation in the
financing program, and written agreement which had been entered into by the parties
providing for commission for securing financing did not provide that an insurer guarantee
performance as a condition of participation.
Judgment affirmed.
Gregory & Gregory, of Las Vegas, for Appellant.
Jones, Wiener & Jones, of Las Vegas, for Respondents.
1. Contracts.
Rights and duties of parties were fixed by their final written agreement where it appeared that intention of
the parties was that there would be no enforcible contract until a written agreement was finally signed.
2. Contracts.
Negotiations of parties became merged in their final written agreement where intention of the parties was
that there be no enforcible contract until a written agreement was entered into.
3. Brokers.
Plaintiff was not entitled to a commission for services rendered in securing a financial commitment where
commitment required a life insurer to guarantee performance as a condition of committing party's
participation in a financing program, and written agreement which had been entered into by the parties
providing for a commission for securing financing did not provide that an insurer guarantee performance as
a condition of participation.
4. Brokers.
Plaintiff was not entitled to a commission for securing commitment of a bank to make a loan to a
corporation where written agreement provided for payment of the commission upon bank's conclusion of
the loan to corporate defendant, and the loan was never made.
OPINION
Widett commenced suit against Bond Estate, Inc., a corporation, and Jaffe, its sole
stockholder, to recover a commission claimed to be due for services in procuring financing
for purchases of equipment for the Tropicana Hotel at Las Vegas. He claims to have secured
commitments totaling $1,800,000 ($1,200,000 from St. Paul Fire and Marine Insurance
Company, and $600,000 from the Bank of Las Vegas) as required by a written agreement
with Jaffe dated February 19, 1955. The trial court found that the commitments procured did
not meet the terms of the written agreement, and entered judgment for the defendants. Widett
appeals.
(1) The St. Paul commitment. Through Widett's efforts a commitment was obtained from
St. Paul to advance Bond Estate, Inc. and Jaffe $1,200,000. Bonds were to be issued by Bond
Estate, Inc., and Jaffe, as principals, and St. Paul as surety, in favor of the equipment sellers
as obligees. The obligation of St. Paul, as surety, was to indemnify the obligees, should Bond
Estate, Inc. and Jaffe, or either of them, fail to make the payments due upon the equipment
purchase contracts. In addition, however, the terms of the commitment required that Guaranty
Reserve Life Insurance Company of Hammond, Indiana, guarantee the performance of Bond
Estate, Inc. and Jaffe, as principals upon the mentioned bonds. This additional requirement
caused the trial court to conclude that the St. Paul commitment did not meet the terms of the
written agreement of February 19, 1955. Its conclusion in this regard is the basis for Widett's
claim of error.
[Headnotes 1-3]
We believe the trial court's conclusion was justified. The final written agreement of
February 19, 1955 did not provide that Guaranty Reserve Life Insurance Company was to
guarantee the performance of Jaffe and Bond Estate, Inc., as a condition of St. Paul's
participation in the financing program. Yet the commitment for participation up to
$1,200,000, subsequently given by St. Paul, specifically required such guaranty. Because of
such requirement, Jaffe and Bond Estate, Inc. refused to consummate the proposed
arrangement.
1
Though previous conduct of Jaffe in dealing with Widett may have caused the
latter to conclude that Guaranty Reserve Life Insurance Company would be willing to
guarantee Jaffe's performance, such a guaranty was not provided for in the final written
agreement. As the evidence may reasonably be viewed to disclose the parties' intention that
there would be no enforcible contract until a written agreement was finally signed (Dolge v.
Masek, 70 Nev. 314, 268 P.2d 919), their rights and duties are fixed by the final written
agreement. Their preceding negotiations, in legal contemplation, became merged therein
(Gage v. Phillips, 21 Nev. 150, 26 P. 60; Chiquita Mining Co. v. Fairbanks, Morse & Co., 60
Nev. 142, 104 P.2d 191; Tallman v. First National Bank, 66 Nev. 248, 208 P.2d 302), absent
allegation and proof of fraud or mistake. In such circumstances the trial court could properly
decide that Widett had failed to secure a commitment from St. Paul which fulfilled his
obligation under the written agreement upon which this suit for a commission rests.2
____________________

1
Before consummating the final agreement of February 19, 1955, Widett had secured St. Paul's commitment
to participate up to $1,000,000 if Jaffe, Bond Estate, Inc. and Conquistador Corp. (proposed lessee of the
Tropicana) would execute bonds as principals. Conquistor refused and the commitment fell through. The
agreement of February 19, 1955 upon which this case was brought, incorporated in large part all terms of the
prior commitment, but specifically required Conquistador Corp. to be omitted as a principal on the bonds to be
issued. Conquistador Corp. was omitted. However, the second commitment of St. Paul required that Guaranty
Reserve Life Insurance Company guarantee the performance of Jaffe and Bond Estate, Inc. Such requirement
was not contained in either the first commitment nor the agreement of Feb. 19, 1955.
under the written agreement upon which this suit for a commission rests.
2

[Headnote 4]
(2) Bank of Las Vegas commitment. Widett also insists that error occurred when the trial
court refused to award him a commission for securing the commitment of the Bank of Las
Vegas to loan Jaffe and Bond Estate, Inc. $600,000. The written agreement upon which he
predicates his right to relief required that the Bank of Las Vegas conclude the loan to Jaffe
and Bond Estate, Inc. before a commission would be due. The loan was not made. Because of
this fact, the lower court denied relief. We find no error in this ruling.
Affirmed.
____________________

2
Widett was paid $12,700 for services rendered Jaffe and Bond Estate, Inc., up to consummation of the final
agreement of February 19, 1955.
____________
79 Nev. 287, 287 (1963) Kraemer v. Kraemer
WILLIAM D. KRAEMER, Appellant and Cross Respondent, v. MARGARET KRAEMER,
Respondent and Cross Appellant, RALPH E. LARRABEE, Respondent.
No. 4538
June 6, 1963 382 P.2d 394
Judge.
Wife brought suit for divorce, and subsequently she amended her complaint and named
successful bidder at trustee's sale of her motel and trustee as defendants. The trial court
entered judgment, and the husband appealed, and the wife cross-appealed. The Supreme
Court, Thompson, J., held that California interlocutory decree of divorce ordering husband to
pay alimony of $200 a month for 24 months was res judicata as to wife's request for
additional alimony in her subsequent divorce suit in Nevada.
$200 a month for 24 months was res judicata as to wife's request for additional alimony in her
subsequent divorce suit in Nevada.
Reversed in part, modified in part, affirmed in part, and remanded with instructions.
G. William Coulthard and Franklin N. Smith, of Las Vegas, for William D. Kraemer.
Dwight B. Claar, Jr., of Las Vegas, for Margaret Kraemer.
William Singleton and Rex A. Jemison, of Las Vegas, for Ralph E. Larrabee.
1. Divorce.
California interlocutory decree granting wife divorce and ordering husband to pay alimony of $200 a
month for 24 months was res judicata in wife's subsequent Nevada divorce suit in which she sought
additional alimony.
2. Evidence.
Nevada Supreme Court would take judicial notice of California law as expressed in reported opinions of
that state.
3. Divorce.
Evidence sustained finding that wife was entitled to divorce on ground of extreme cruelty.
4. Divorce.
California interlocutory decree granting wife divorce on ground of extreme cruelty was not final
judgment as to issue of extreme cruelty, and wife was not precluded from thereafter obtaining Nevada
divorce on ground of extreme cruelty.
Correct judgment will not be reversed simply because based on wrong reason.
6. Conspiracy.
Evidence sustained finding in wife's divorce suit that wife failed to establish her charge that husband and
his friend, who purchased wife's motel at trustee's sale, conspired to procure trustee's sale and thereby cut
off wife's right to redeem. NRS 21.190-21.210, 107.080.
7. Divorce.
Where wife filed suit for divorce three days before trustee's sale of her motel, and thereafter she requested
and received restraining order blocking prospective transfer of title from trustee to successful bidder, and
she amended complaint and named trustee and successful bidder as defendants in divorce
suit, trial court was empowered to appoint her as receiver to continue operation of
motel and properly directed that her furniture in motel remain there as security
against possible wrong to successful bidder.
named trustee and successful bidder as defendants in divorce suit, trial court was empowered to appoint her
as receiver to continue operation of motel and properly directed that her furniture in motel remain there as
security against possible wrong to successful bidder. NRS 32.010. subd. 6.
OPINION
Margaret Kraemer filed suit for divorce, alleging extreme cruelty and requesting alimony.
Additionally she charged that William, her husband, had conspired with Ralph Larrabee (who
was also named a defendant) to deprive her of an interest in the Forty-Niner Motel, Las
Vegas, Nevada. William answered, pleading a prior interlocutory California decree obtained
by Margaret as res judicata. He and Larrabee also denied the conspiracy charge. After trial the
district court entered a judgment with which neither Margaret nor William was pleased.
William appealed, assigning errors, and Margaret filed a cross-appeal, doing the same.
Larrabee is here as a respondent to Margaret's cross-appeal. The appeal and cross-appeal
require us to dispose of the following questions: (1) Is the California interlocutory decree a
final judgment and res judicata as to alimony? (2) Was Margaret lawfully entitled to a Nevada
divorce on the grounds of extreme cruelty or three years' separation without cohabitation? (3)
Did the lower court correctly find that William had no interest in the motel, and were certain
incidental orders relating to the receivership thereof lawfully entered? The evidence relevant
to each question will be related as that question is discussed.
[Headnotes 1, 2]
(1) Margaret first instituted suit in California. William answered. On March 27, 1961, the
California court granted Margaret an interlocutory decree of divorce and ordered William to
pay alimony of $200 a month for 24 months. Within two months Margaret sued again for
divorce, this time in Nevada. William appeared.
Inter alia he pleaded the California interlocutory decree as res judicata to Margaret's renewed
request for alimony. The lower court rejected the defense and awarded Margaret the lump
sum of $10,000 as alimony. This, we think, was error. In taking judicial notice of California
law as expressed in reported court opinions of that state (Choate v. Ransom, 74 Nev. 100, 323
P.2d 700) we find that, though the interlocutory decree is not a final judgment determining
marital status (Estate of Dargie, 162 Cal. 51, 121 P. 320; Estate of Seiler, 164 Cal. 181, 128
P. 334; 1 California Family Law, Armstrong, at 248), it is deemed final in all other respects.
(Pereira v. Pereira, 156 Cal. 1, 103 P. 488, 23 L.R.A.,N.S., 880; Huneke v. Huneke, 12
Cal.App. 199, 107 P. 131; Borg v. Borg, 25 Cal.App.2d 25, 76 P.2d 218; Overell v. Superior
Court, 29 Cal.App.2d 418, 84 P.2d 789; Parnham v. Parnham, 32 Cal.App.2d 93, 89 P.2d
189; Wilson v. Superior Court, 31 Cal.2d 458, 189 P.2d 266). In Wilson the court stated, inter
alia: The right to alimony, like other financial and property rights of the parties, is properly
at issue at the time the cause of action for divorce is tried and determined, and the ensuing
interlocutory decree is intended to bring an end to all matters so litigated and in controversy *
* *. In Estate of Abila, 32 Cal.2d 559, 197 P.2d 10, the California Supreme Court held that
an interlocutory decree of divorce terminates the obligation of support in the absence of a
provision therefor. There is no jurisdiction to grant it later unless the right has been reserved.
In the instant case, the right was not reserved, nor did Margaret or William appeal from the
interlocutory decree. The time within which they could have done so passed before the
Nevada case was tried. The doctrine of res judicata forbids relitigation of the alimony issue in
Nevada.
1

(2) The basis of Margaret's request for divorce in California was William's cruelty. An
interlocutory decree was granted to her on that ground. Her later suit in Nevada was also
predicated on extreme cruelty.
____________________

1
In Crayne v. Crayne, 54 Nev. 205, 13 P.2d 222, 84 A.L.R. 716, we held that a California interlocutory
decree was not a final judgment as to marital status and, therefore, not res judicata as to that issue in a later
Nevada divorce action. The question of the finality of such a decree as to alimony was not involved.
in Nevada was also predicated on extreme cruelty. However, near the end of trial, she was
permitted to amend to plead three years' separation without cohabitation as an additional
cause. The court deemed the complaint as thus amended denied by William, but refused him
a continuance for the purpose of preparing a defense to the new cause of action. The court
found that each ground for divorce was supported by the evidence. However, the decree was
entered on the ground of three years' separation without cohabitation, the court believing that
the prior California interlocutory decree was res judicata as to the ground of extreme cruelty.
[Headnotes 3-5]
On appeal William's contention is two-fold; first, that the record does not reflect that their
separation was voluntary on the part of at least one spouse (Caye v. Caye, 66 Nev. 78, 203
P.2d 1013, 211 P.2d 252; Sutherland v. Sutherland, 75 Nev. 304, 340 P.2d 581; Pearson v.
Pearson, 77 Nev. 76, 359 P.2d 386), with the result that a claim for relief, based upon the
ground of three years' separation without cohabitation, was not proven; and, second, that in
any event he should have been granted a continuance to prepare his defense to that charge. It
is not necessary to answer either contention. The ground of extreme cruelty was satisfactorily
proven. The California interlocutory decree is not a final judgment as to that issue (Estate of
Dargie, 162 Cal. 51, 121 P. 320; Estate of Seiler, 164 Cal. 181, 128 P. 334; Crayne v. Crayne,
54 Nev. 205, 13 P.2d 222, 84 A.L.R. 716), and the judgment granting Margaret a divorce may
properly be affirmed on that ground. (Cf. Nelson v. Sierra Construction Corp., 77 Nev. 384,
364 P.2d 402, where we again acknowledged the rule that a correct judgment will not be
reversed simply because it was based on the wrong reason.)
(3) Margaret's prime concern in this case is over the loss of her interest in the Forty-Niner
Motel. Though this circumstance has produced unfortunate consequences for her, there
appears to be no legal basis upon which we may accord her relief. She was purchasing the
motel when she married William. The purchase price was $120,000. She paid $30,000 down,
plus a diamond, and a mink coat.
and a mink coat. The balance was evidenced by two promissory notes totaling $85,500,
secured by separate trust deeds on the property. After the marriage, William loaned Margaret
$43,065 with which to enlarge and improve the motel. This was done. They became
embroiled in recriminations. William sued to recover the sum loaned. He was successful.
Kraemer v. Kraemer, 76 Nev. 265, 352 P.2d 253. Seeking to satisfy his judgment, William
requested the Clark County sheriff to sell Margaret's interest in the motel at execution sale.
On August 29, 1960 the sheriff, at public auction, sold Margaret's interest therein to William
whose lawyer submitted the high bid of $43,000 on William's behalf. William thus acquired
all of the right, title, interest and claim of Margaret (his judgment debtor) in the motel, NRS
21.190, subject to Margaret's right to redeem within one year thereafter. NRS 21.200-21.210.
Margaret did not redeem, and the record is barren of proof that she was financially able to do
so. William permitted Margaret to remain at the motel and run it. About nine months later,
May 15, 1961, because of default in payment of the note obligations, the trustee under the
first deed of trust sold the grantor's title (originally Margaret's, but then William's because of
the execution sale of August 29, 1960) to Larrabee who submitted the high bid of $70,000.
NRS 107.080.
[Headnote 6]
Margaret complains bitterly that William and Larrabee conspired to procure the trustee's
sale, thereby cutting off her right to redeem which would not have expired until August 29,
1961. The trial court rejected her accusation. The record readily supports that court's view.
William and Larrabee, though friends of long standing, deny such a scheme. Of greater
significance, however, is the absence of evidence to indicate that the trustee acted other than
on its own initiative and for the protection of the beneficiaries in conducting the trustee's sale.
Furthermore, Margaret admitted that she was financially unable to redeem the property. Thus
she is in no position to contend that her failure to do so was in consequence of representations
made to her by William.
[Headnote 7]
The present suit was filed three days before the advertised trustee's sale was to occur.
Margaret therefore requested and received a restraining order blocking the prospective
transfer of title from the trustee to the successful bidder. Subsequently she amended her
complaint and named the trustee (United Title Insurance Company) and Larrabee as
defendants. The restraining order was continued in effect until conclusion of the trial on the
merits. Some provision, pending litigation, had to be made regarding the motel business. The
court therefore ordered that Margaret continue the management thereof as receiver,
accountable for income and expenditures. As security for the performance of her duties in that
capacity, and for the damages, if any, caused Larrabee (who had not been able to acquire
possession of the property which he had purchased), the court directed that Margaret's
furniture in the motel (her separate property) remain there. There can be no question about the
court's power to appoint a receiver under such circumstances, NRS 32.010(6); 95 A.L.R. 902;
nor was the security requirement unreasonable. To the contrary. Security against the possible
wrong to Larrabee was manifestly fair, and Margaret's motel furniture was available for that
purpose. Margaret consented to the arrangement, and we will not now accord validity to her
complaint regarding it.
We therefore conclude that the provision of the judgment requiring William to pay
Margaret a lump sum alimony of $10,000 is reversed; that the provision of the judgment
relative to the proceeds remaining from the trustee's sale and in the possession of United Title
Insurance Company (stated to be $8,758.33) is modified and that company shall, after paying
valid liens, if any, against said sum, pay $2,600 thereof to Margaret,
2
and the balance, if any
there be, to William. In all other respects the judgments appealed from are affirmed.
____________________

2
The lower court found that, as of April 20, 1962 (the date of the findings of fact), William had made no
alimony payments to Margaret as required by the California interlocutory decree. This finding is supported by
evidence. As of that date, $2,600 was due Margaret. Cf. Biel v. Godwin, 69 Nev. 189, 245 P.2d 997.
Margaret shall promptly submit to the lower court an accounting of her receivership, at which
time said court shall take appropriate action respecting the security furnished by her, based, of
course, upon evidence to be then presented. Her request for fees as receiver and for an
allowance with which to pay accountants is not before us, as the judgments appealed from did
not deal with those matters. The lower court must, therefore, make those determinations. The
cause is remanded for entry of judgment in accordance herewith. No costs are allowed.
Badt, C. J., and Gregory, D. J., concur.
McNamee, J., having disqualified himself, the Governor designated Honorable Frank B.
Gregory, Judge of the First Judicial District Court, to sit in his place and stead.
____________
79 Nev. 294, 294 (1963) McCray Refrigeration Co. v. Uramoto
McCRAY REFRIGERATOR COMPANY, INC., an Indiana Corporation Qualified to do
Business in the State of Nevada, Appellant, v. YUKIO URAMOTO and GILBERT
SUTTON, Respondents.
No. 4592
June 17, 1963 382 P.2d 600
Appeal from Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Seller's action against one who signed as witness to guarantor's supposed signature on
instrument of guaranty delivered to the seller. The trial court held that the seller could not
recover from the attesting witness, and the seller appealed. The Supreme Court, Badt, C. J.,
held that signing as a witness to the guarantor's supposed signature on the guaranty was a
representation to the seller that the witness saw the guarantor sign, and where this was false,
and the guarantor's signature was forged, the witness was liable to the seller for resulting
loss though the witness thought that the guarantor's signature was genuine.
where this was false, and the guarantor's signature was forged, the witness was liable to the
seller for resulting loss though the witness thought that the guarantor's signature was genuine.
Reversed as to respondent Sutton. Affirmed as to respondent Yukio Uramoto.
Goldwater, Taber and Hill, of Reno, for Appellant.
Laxalt, Ross and Laxalt, of Carson City, for Respondent Uramoto; James Johnson Jr., of
Reno, for Respondent Sutton.
Fraud.
Signing as witness to guarantor's supposed signature on guaranty delivered to seller was a representation
to seller that witness saw guarantor sign, and where this was false, and guarantor's signature was forged,
witness was liable to seller for resulting loss though witness thought that guarantor's signature was genuine.
OPINION
When a witness attests the signature of a guarantor on a guaranty of payment for
equipment to be delivered to a purchaser, knowing that the seller would not deliver the
equipment without such attestation, and the signature on the guaranty proves to be a forgery,
with a resulting loss to the seller, may the seller recover the loss from the attesting witness?
The learned trial judge, trying the case without a jury, under the facts recited infra, answered
this question in the negative, and the seller has appealed.
As described in the trial judge's opinion, the negotiations and eventual acts of the parties to
the action arose as follows:
In June or July of 1959, the Blue Ribbon Market, a corporation, through its officers
commenced negotiations with the local office of Commercial Credit Corporation for the
financing of certain market equipment then being undertaken with the plaintiff herein.
for the financing of certain market equipment then being undertaken with the plaintiff herein.
These negotiations covered a period of several months culminating in an agreement in late
September 1959.
During the negotiations, a contract of sale duly signed by the Market * * * together with
credit reports on the Mercury Cleaners of Carson City, Yukio Uramoto, Thomas Uramoto and
a proposed written guaranty were sent to the California office of the Commercial Credit
Corporation for approval. * * * The form of the guaranty as presented on this occasion was
not acceptable and a new one was subsequently required. Commercial Credit Corporation did
not rely upon the guaranty' and returned it to Yukio Uramoto. * * *
Thereafter a printed guaranty form * * * was submitted to the local office of Commercial
Credit Corporation by defendants Gilbert Sutton and Thomas Uramoto, bearing the signature
Yukio Uramoto' and witnessed by Gilbert Sutton. Yukio Uramoto has denied the validity of
his signature and that he authorized his brother Thomas Uramoto to sign his name to Exhibit
D. Likewise, it was admitted at the trial that Yukio Uramoto did not in fact sign [the second
guaranty] and that Thomas Uramoto did in fact sign his name.
The lower court first disposed, adversely to plaintiff, of plaintiff's contention that Thomas
Uramoto was the authorized agent of his brother Yukio Uramoto and ordered the entry of
judgment in favor of Yukio and against the plaintiff. The correctness of the trial judge's ruling
in this respect is not questioned by appellant in this appeal.
The second instrument of guaranty is a complete printed form of letter addressed to
Commercial Credit Corporation under which the guarantor unconditionally guarantee[s] to
you the full and prompt performance by Blue Ribbon Market, Inc. * * * of all obligations
which obligor presently or hereafter may have to you and payment when due of all sums
presently or hereafter owing by obligor to you, and agree[s] to indemnify you against any
losses you may sustain * * *. Sundry conditions and terms of the obligation are then set forth
in detail.
in detail. It then bears the apparent signature Yukio Uramoto and, opposite the same, the
words (Witness) Gilbert Sutton. It is admitted that Thomas signed Yukio's name and it is
also admitted that Sutton signed as the witness.
The court then recites the following:
[I]t is claimed that defendant Gilbert Sutton is responsible in fraud and deceit for the
damage caused Commercial Credit relying upon Sutton's representation as a witness.' A
review of the testimony in this instance would indicate that Gilbert Sutton was the major
stockholder in the building which housed the Blue Ribbon Market and that as such he was
interested in obtaining a tenant who would be able to operate a market.
The manager of the local branch of Commercial Credit Company testified to the closing of
the transaction involving the sale of the market equipment to Blue Ribbon Market, Inc., by
McCray Refrigerator Company for $46,241.57, less a down payment, leaving a balance of
$40,544.00, the insistence upon the execution of the guaranty, the guaranty bearing the
signature of Yukio Uramoto, with the signature of Gilbert Sutton as a witness thereto; that he
knew Sutton for many years and that it was not out of the ordinary to accept a signature
witnessed by a person known to him; that the plaintiff relied upon the guaranty and that the
contract would not have been made if the guaranty had not been tendered; that it was with
reliance upon the fact that the guaranty was signed by Yukio Uramoto that the equipment was
sold to Blue Ribbon.
Sutton, called as an adverse witness by the plaintiff, admitted that Yukio did not sign the
guaranty in his presence but justified his signing as a witness as follows: I called him before
I went to Commercial Credit and asked him if he would sign the document, and he told me
that the document had been presented to him by his brother, that he had signed them, and on
that reliance I affixed my signature. Later he was asked, if it was not your intention, when
you signed that document, to indicate to Commercial Credit and the McCray Refrigerator
Company, that Yukio Uramoto had signed this document. A. It was my intention to convey
that impression. Q. And that, in fact, Yukio had signed the document? A. That's right.
this document. A. It was my intention to convey that impression. Q. And that, in fact, Yukio
had signed the document? A. That's right. It was my impression. Q. And it was your
intention, in delivering the document, was it not, that the McCray Refrigeration Company and
the Commercial Credit Corporation [act] and [reply] on this document? A. I would say so.
The thing was honest and authentic.
Later Sutton described his telephone call from Reno to Yukio at Carson City as follows:
He answered the phone, and I asked him if the thing had been signed. And he said: I signed
everything, and Tommy has them, and will deliver them into the hands of Commercial Credit
in the afternoon.' * * * Q. All you can specifically recall was that the name of Yukio Uramoto
appeared on the instrument? A. That's right. And that is why I affixed my signature to it.
Blue Ribbon continued in business about six months and then went through bankruptcy.
The equipment was resold, resulting in a net loss to appellant of $17,134.40 plus $310.26 in
non-taxable costs allowable under the terms of the contract of sale.
The court said: Defendant Sutton seems to not question the law cited by plaintiff, but says
that those citations are not applicable because Sutton was acting in good faith, that he
ascertained through Yukio Uramoto that something had been signed, which he assumed was
the guaranty, and that in any event, he acted without recklessness or negligence, when he did
everything to ascertain the truth short of making a special trip to Carson City to actually see
Yukio Uramoto's signature. * * * Therefore, it seems to be conceded that if defendant Sutton
had known the true facts as found herein but nevertheless signed as a witness to the signature
Yukio Uramoto,' then he would be responsible; all other legal factors being present. It is
likewise true that false statements, which are made recklessly, without knowing or caring
whether they are true or false, will support an action of deceit.' In our case I do not find the
necessary elements present which would justify liability being assessed against Sutton for I
think it must be conceded that he did make a telephone call to Carson City before signing
the guaranty as a witness and if we are to believe his uncontradicted testimony, he could
very well have relied on and in fact did rely on, so far as the record discloses, what Yukio
Uramoto told him as to a signature.
that he did make a telephone call to Carson City before signing the guaranty as a witness and
if we are to believe his uncontradicted testimony, he could very well have relied on and in
fact did rely on, so far as the record discloses, what Yukio Uramoto told him as to a signature.
* * * [I]t is my opinion that Sutton made every reasonable attempt to ascertain the truth and
that it is quite possible Yukio Uramoto and Sutton were honestly talking about different
documents. * * *
It is therefore apparent that the court found that the necessary elements that were lacking
were (1) false statements, made recklessly, without knowing or caring whether they were true
or false, or (2) the lack of a reasonable attempt to ascertain the truth, or (3) possibly such an
element as malice or bad faith or intentional injury. We must at this point recall again that the
deceit relied upon was Sutton's representation that he had seen Yukio sign.
Words which in terms promise * * * the existence * * * of a present or past state of facts,
are to be interpreted as a promise or undertaking to be answerable for such proximate damage
as may be caused by * * * the nonexistence of the asserted state of facts. Restatement,
Contracts 2(2). A promise which the promisor should reasonably expect to induce action
* * * of a definite and substantial character on the part of the promisee and which does induce
such action * * * is binding if injustice can be avoided only by enforcement of the promise.
Id. 90. Every element thus described was present in the instant case. Other elements might
magnify or exaggerate the wrong, or even be actionable in themselves, but their absence is
not fatal in a cause of action for deceit.
In Annot., 32 A.L.R.2d 184, entitled Misrepresentation as to financial condition or credit
of third person as actionable by one extending credit in reliance thereon, hundreds of cases
are cited fixing actionability. Here the problem is far narrower, far simpler, far easier of
determination. McCray Refrigerator Company and Commercial Credit Company had checked
the credit standing of the parties involved, had refused to extend the necessary credit to Blue
Ribbon Market, had agreed to finance the purchase of the equipment if guaranteed by
Yukio Uramoto.
credit to Blue Ribbon Market, had agreed to finance the purchase of the equipment if
guaranteed by Yukio Uramoto. All they insisted upon was Yukio's authenticated signature on
the particular instrument of guaranty. They had rejected the first letter of guaranty, drawn by
Yukio himself, and returned it to him. When the second guaranty was presented bearing the
signature Yukio Uramoto, witnessed by Sutton, they were satisfied and acted upon it.
Sutton was well known to them. He signed as a witness to Yukio's signature with the
intention that they act upon it.
Accepting the definition of witness given in Black's Law Dictionary (1891 Ed.) as One
who sees the execution of an instrument, and subscribes it, for the purpose of confirming its
authenticity by his testimony, or, To see the execution of, as an instrument, and subscribe it
for the purpose of establishing its authenticity. (Id. 4th Ed.)
1
Sutton's signing as a witness to
Yukio's signature was equivalent to his stating that he saw Yukio sign it. This was false and
Sutton knew it was false. He did not indicate to McCray or Commercial Credit that his
statement was based on a telephone conversation at which the signed instrument could not
possibly have been before both parties. If, as the court felt, Sutton had done everything he
could, short of going to Carson City, a distance of 29 miles (driving time less than an hour),
that was the one step essential to his witnessing Yukio's signature. Its failure left him 100
percent short of justification for his signature as a witness. If the necessary element that the
learned trial judge found to be lacking was Sutton's intent to deceive, that element was
present in Sutton's representation that he saw Yukio sign. He did not see Yukio sign. Yukio
never did sign the instrument.
____________________

1
We may omit the alternative definition, sometimes given, as one to whom the signer acknowledged his
signature, because the telephone conversation between Sutton and Yukio, and the court's finding as to the
uncertainty of the document which the parties were discussing, and the absence of the document itself from their
vision or actual contemplation, remove such acknowledgment from serious consideration.
The precise question posed at the beginning of this opinion finds little in the way of
judicial answer in this century. However, two cases decided, respectively, in 1896 and 1897
are directly in point.
In Mendenhall v. Stewart, 18 Ind.App. 262, 47 N.E. 943, Mendenhall signed as a witness
to the signature of one Hoover upon an instrument guaranteeing payment for all goods
purchased by one Eilar. Stewart, relying on the genuineness of the guaranty, advanced credit
to Eilar, who proved to be insolvent. Mendenhall, though signing as a witness to Hoover's
signature, did not see Hoover execute it, as, indeed, Hoover had not in fact executed it. A
cause of action for conspiracy was involved in the case, but is not of interest in this appeal.
Stewart sought and obtained relief directly against Mendenhall for his false representation
that he had witnessed Hoover's signature. The court said: It appears that at the time the letter
was presented to appellee it had not been signed by Hoover, although his name was attached
to the letter, and the signature was witnessed by Mendenhall. The witnessing by Mendenhall
of the signature made none of the statements in the letter his statements. His liability arises
from attesting a signature that had never been made, and thus empowering a person to
purchase goods upon a letter that had never been authorized. The complaint alleges that
Mendenhall attested the signature of Hoover when he knew that Hoover had not signed the
letter of credit and guaranty, and when he knew that the statements in the letter were false. It
cannot be said that this is in effect, an oral representation of the solvency of Eilar. It is not
sought to recover for any loss resulting from the fraudulent representation as to the solvency
of Eilar, but appellee seeks in her complaint to recover the price of the stock of drugs
obtained from her by fraud.
The only representation made by Mendenhall was by means of the act of subscribing his
name as a witness to the signature of Hoover. The legal effect of Mendenhall's act was that he
had seen Hoover sign his name, and at the request of some one (presumably Hoover) he had
signed the letter as attesting witness.
had signed the letter as attesting witness. Greenl. Ev. (15th Ed.) 569, 569a. By that act, under
the allegations of the complaint, he represented as facts what he knew to be untrue. It is
further alleged that at the time of such alleged attestation he knew that the letter was to be
used by Eilar for the purpose of obtaining goods from appellee. Had he stated the facts as they
really were, the loss to appellee would not have resulted; but by a misrepresentation of the
facts the loss occurred.
Elsewhere in the opinion the court quotes an earlier Indiana case, Kirkpatrick v. Reevies,
121 Ind. 280, 22 N.E. 139, citing the rule as follows: An unqualified statement that a fact
exists, made for the purpose of inducing another to act upon it, implies that the person who
makes it knows it to exist, and speaks from his own knowledge. If the fact does not exist, and
the defendant states of his own knowledge that it does, and induces another to act upon his
statement, the law will impute to him a fraudulent purpose.'
To similar effect is the holding in Second National Bank v. Curtiss, 2 App.Div. 508, 37
N.Y.S. 1028 (N.Y. 1896), in which recovery was sought and obtained from the defendants for
the act of their testator in witnessing a signature to a forged assignment of a certificate of
stock. The testator knew that the stock was to be used as security for a loan and that his
signature would be relied upon by the lender as establishing the actual execution of the
assignment. Suit was for the resulting loss. The court said: The only representation made by
the defendants' testator was by means of the act of subscribing his name as a witness to the
assignment of the stock. That act was a statement and representation by the testator, in effect,
that the signature to the assignment was made by Westfall in the testator's presence, or was
acknowledged by Westfall in testator's presence to be his, Westfall's signature, and that the
testator thereupon, at Westfall's request, wrote his name as witness thereto. Such was fairly
the meaning of the act in law, and as generally understood in the business community.
Greenl.
Ev. (14th Ed.) 569, 569a. It does not seem to us that it could be fairly said that this act
implied merely that the testator believed or was of the opinion that the signature of Westfall
was his genuine handwriting. Regarding this act as a statement and representation of the facts
we have referred to, there can be no doubt but that the conclusion of fraud, so far as it was
essential to support the judgment, necessarily followed.
In an article entitled Liability for Honest Misrepresentation, in 24 Harvard Law Review
415, by Professor Samuel Williston, the author says (id. 435):
The inherent justice of the severer rule of liability which in some cases at least holds a
speaker liable for damages for false representations, though his intentions were innocent and
his statements honestly intended, is equally clear. However honest his state of mind, he has
induced another to act, and damage has been thereby caused. If it be added that the plaintiff
had just reason to attribute to the defendant accurate knowledge of what he was talking about,
and the statement related to a matter of business in regard to which action was to be expected,
every moral reason exists for holding the defendant liable.
2

The judgment in favor of Sutton is reversed with costs, and remanded to the district court
with instructions to enter judgment in favor of appellant and against respondent Sutton in
accordance with this opinion.
3
The judgment in favor of respondent Yukio Uramoto against
appellant for costs is affirmed.
____________________

2
See the entire article in which the author traces the history of actions for deceit or misrepresentation. See
also treatment of the subject in 23 Am.Jur., Fraud and Deceit 128, at 921.

3
It was stipulated that appellant's damages were in the sum of $17,134.40. An additional item of $310.26 was
claimed in non-taxable costs but allowable under the provisions of the conditional sale contract. This item must
be determined by the trial court in accordance with the evidence submitted at the trial.
____________
79 Nev. 304, 304 (1963) Ray v. Stecher
In the Matter of the Estate of CARL RAY, Deceased.
CARLITA NANCY RAY and IDA ANGELOT RAY, Appellants, v. LAWRENCE
STECHER, M. J. CHRISTENSEN, F. MIKE PINJUV, CARL CHRISTENSEN, and
HARVEY DICKERSON, Respondents.
No. 4490
June 19, 1963 383 P.2d 372
Appeal from the Eighth Judicial District Court, Clark County; David Zenoff, Judge.
Proceedings in the matter of a decedent's estate. The lower court rendered decision
approving master's report, and an appeal was taken. The Supreme Court, McNamee, J., held
that district court can order reference only with respect to issues then pending before it, and
order referring all matters relating to the entire estate of testator was insufficient as
predicate for reference of issue, as to whether testamentary trustee should be permitted to
borrow funds on security of chief asset of trust estate, where petition to borrow money was
not filed until over 11 months after such order of reference.
Order vacated.
E. M. Gunderson, of Las Vegas, for Appellant Carlita Nancy Ray.
Vargas, Dillon & Bartlett, of Reno, for Appellant Ida Angelot Ray.
Carl Christensen, of Las Vegas, for Respondents Lawrence Stecher, M. J. Christensen, F.
Mike Pinjuv, and in Pro Per.
Harvey Dickerson, of Las Vegas, in Pro. Per.
1. Reference.
District courts should be particularly hesitant in ordering reference to master of matters concerning
decedent's estates and testamentary trusts where rights of beneficiaries and creditors might be prejudiced by
additional costs that would accrue. NRCP 53(b).
79 Nev. 304, 305 (1963) Ray v. Stecher
2. Reference.
District court can order reference only with respect to issues then pending before it, and order referring
all matters relating to the entire estate of testator was insufficient as predicate for reference of issue, as to
whether testamentary trustees should be permitted to borrow funds on security of chief asset of trust estate,
where petition to borrow money was not filed until over 11 months after such order of reference. NRCP
53(b, c).
3. Reference.
District court order authorizing payment from testamentary trust estate of various amounts set forth in last
report of master would have to be vacated where there had been no compliance with statutory requirement
for notice of filing of report. NRCP 53(e); NRS 165.010-165.120.
OPINION
This is an appeal by Carlita Nancy Ray and Ida Angelot Ray, minor child and widow of
decedent, from the decision on petition to borrow money and petition for fees. It results
primarily from the failure to comply with the provisions and intent of NRCP 53.
After the will herein had been probated and the estate had been fully administered,
pursuant to the terms of the will the residue was distributed to testamentary trustees, the will
providing that the estate remain in trust for a period of 20 years.
On December 14, 1959, Judge Zenoff had signed and caused to be filed an Order of
Reference to a Master wherein, after specifying that there was need for a determination of
certain issues,
1
he appointed Harvey Dickerson special master for the determination of the
foregoing issues and recommendations to the court by findings of fact and conclusions of
law. The record does not disclose what report, if any, resulted from said order of reference of
December 14, 1959.
____________________

1
(1) The accuracy of the accounting report.
(2) The deportment of Ida Ray, widow of the deceased, and her continuing status as a trustee.
(3) The respective interests of the interested parties after a prior determination of partition to one Robert
Barringer.
(4) All matters relating to the entire estate of Carl Ray.
79 Nev. 304, 306 (1963) Ray v. Stecher
On November 18, 1960, the trustees filed a petition in the court below for an order
authorizing them to borrow $42,000, giving as security a deed of trust on the chief asset of
the estate, to wit, the Professional Building. Inasmuch as one-third interest therein had been
conveyed to Barringer, the pretermitted son of deceased, pursuant to this court's decision in
the case of In re Carl Ray, 69 Nev. 204, 245 P.2d 990, the petition contained a contract
between Barringer and others claiming under him on the one hand, and the trustees on the
other.
On November 29, 1960, the minor child and widow filed objections to the petition to
borrow money.
At the time of the hearing of said petition and the objections thereto on November 30,
1960, Judge Zenoff, as appears from the transcript of said hearing, stated: The matter will be
referred to the already appointed Master, Mr. Harvey Dickerson. * * * Order of reference is
made. No minute order was made and no formal order of reference of the petition to borrow
money and the objections thereto was signed and filed.
On December 13, 1960, Carl J. Christensen filed a petition for allowance of fees to him as
attorney for the trustees. On December 15, 1960, E. M. Gunderson filed a petition for
allowance of compensation to him as attorney for Carlita Nancy Ray. These petitions for fees
not having been on file November 30, 1960, were not mentioned in the court hearing of that
date. On December 19, 1960, Harvey Dickerson, as master, filed in the court below Notice
of Hearing on Petition of Trustees to Borrow Money which set December 21, 1960, as the
time for hearing Trustee's Petition to borrow money for said estate. On the date so noticed,
Harvey Dickerson proceeded to hear the petition to borrow money. The widow was
represented by Mr. Bartlett, the minor child by Mr. Gunderson, and the trustees by Mr. Carl
Christensen. On February 6, 1961, the master filed with the court his Report of Master on
Petition of Trustees to Borrow Money, and Objections Interposed Thereto, together with the
reporter's transcript of the December 21, 1960, hearing. In this report he recommended the
payment of $1,000 to Carl Reed and Ralph Steiner, former trustees; $2,500 to E. M.
Gunderson, as attorney for the minor heir; $1,000 to Lawrence Stecher and M. J.
Christensen, trustees; $500 to Carl Christensen, as attorney for the trustees; and "a sum
to be allowed the Master pursuant to court order."
79 Nev. 304, 307 (1963) Ray v. Stecher
payment of $1,000 to Carl Reed and Ralph Steiner, former trustees; $2,500 to E. M.
Gunderson, as attorney for the minor heir; $1,000 to Lawrence Stecher and M. J. Christensen,
trustees; $500 to Carl Christensen, as attorney for the trustees; and a sum to be allowed the
Master pursuant to court order. In addition thereto, he stated that a loan of $23,300 should be
sufficient to meet obligations. No findings of fact or conclusions of law were made.
Objections to said master's report were filed February 15, 1961, by Russell Taylor who
formerly was the guardian of the person and estate of Carlita Nancy Ray. Objections also
were filed on behalf of Carlita Nancy Ray and Ida Angelot Ray.
On August 18, 1961, Harvey Dickerson filed a petition for an allowance toward his fee as
master.
On August 21, 1961, Judge Zenoff conducted a hearing on the master's report. All parties
were present and, in addition, L. O. Hawkins, as attorney for the Barringer group. At this time
Gunderson stated he did not want his petition for compensation considered, and objected to
the consideration of any petition for fees. The court proceeded to hear the petition to borrow
money and referred the matter back to Dickerson for further hearing. On the same day,
pursuant to such order for further hearing, the master considered further objections to the
petition to borrow money.
On September 12, 1961, the master filed with the court his further report wherein he
recommended that the trustees be allowed to borrow $25,000 to be repaid from their share of
the income from the building. In addition thereto, he recommended the payment of certain
enumerated items on account, including $500 to Carl Christensen, attorney for the trustees;
$1,000 to Gunderson, attorney for the minor heir; $5,000 for master's fees; $1,000 for trustee
Stecher; $1,000 for trustee M. J. Christensen; and $350 for trustee Pinjuv. This further report
contained no findings of fact or conclusions of law. Judge Zenoff, without any further hearing
and in the absence of notice as required by NRCP 53(e)(1), made his decision. The decision
bears no date, but was filed September 15, 1961, and is not based on any findings of fact
and conclusions of law.
79 Nev. 304, 308 (1963) Ray v. Stecher
filed September 15, 1961, and is not based on any findings of fact and conclusions of law. It
is entitled Decision on Petition to Borrow Money and Petition for Fees, and is worded as
follows:
The foregoing petitions having been presented to the court and the said matters having
been referred to the master heretofore appointed by the court and the master having taken
testimony, considered same and returned said testimony to the court together with his
recommendations therein, and thereafter the court having heard oral argument in favor and in
opposition to said petitions, and the court having ordered further testimony therein taken by
the master and by the master returned same to the court and the court having considered the
same.
It is the order of the court as follows, to wit:
That the prayer of the petition to borrow money be and the same is hereby granted and the
trustees in the above entitled matter are authorized and directed to borrow the sum of
Twenty-Five Thousand ($25,000) Dollars as per their petition relating thereto and thereafter
are directed to dispose of same said funds under the supervision of the master in accordance
with page 3 of the report of the master filed herein September 12, 1961.
The trustees are authorized and directed to execute any and all documents necessary to
effectuate accomplishment of the purposes and conditions of the foregoing order.
David Zenoff
District Court Judge
As hereinabove stated, appeal is from this decision.
At the time of oral argument a stipulation was entered in the minutes of this court that the
order of the trial court authorizing the trustees to borrow $25,000 be vacated upon the
certification by the clerk of this court of such stipulation to the district court.
As the result of this stipulation we are concerned on appeal only with the lower court's
allowance of fees in accordance with the report of the master dated September 12, 1961.
79 Nev. 304, 309 (1963) Ray v. Stecher
NRCP 53(b) provides: A reference to a master shall be the exception and not the rule.
* * * in actions to be tried without a jury, save in matters of account, a reference shall be
made only upon a showing that some exceptional condition requires it.
We have examined the transcripts of the hearings upon which the master's reports of
February 6, 1961, and September 12, 1961, are based. The first hearing commenced at 2:30
P.M. on December 21, 1960 and was completed at 4:35 P.M. of the same day. The second
hearing commenced at 2:00 P.M. on August 21, 1961, and was completed at 5:00 P.M. the
same day. The total time consumed by these two hearings before the master was 5 hours and
5 minutes or less than one judicial day.
[Headnote 1]
In our opinion, the record shows no exceptional condition which necessitated the reference
of these matters to a master. Furthermore, district courts should be particularly hesitant in
ordering a reference to a master of matters concerning estates and testamentary trusts where
the rights of beneficiaries and creditors might be prejudiced by the additional costs that would
accrue.
2

[Headnote 2]
NRCP 53(c) contemplates a formal order of reference which would specify or limit the
powers of the master. No such order was made by the district court when the petition to
borrow funds was referred to the master. Respondents contend however that this rule was
complied with because the said Order of Reference, dated December 14, 1959, referred all
matters relating to the entire estate of Carl Ray to Harvey Dickerson as master. We must
reject this contention.
The provisions of NRCP 53 are to be strictly construed because a reference to a master
shall be the exception and not the rule."
____________________

2
Both of the beneficiaries, Carlita Nancy Ray and Ida Angelot Ray, asked that the hearing on the petition to
borrow money be referred to a master. At that time the testamentary trust was heavily in debt and the creditors
never had an opportunity to object to the reference.
79 Nev. 304, 310 (1963) Ray v. Stecher
exception and not the rule. Consequently we hold that a district court when authorized to
order a reference can do so only with respect to issues then pending before the court.
The petition to borrow money was not filed until November 18, 1960, over eleven months
after the December 14, 1959 Order of Reference.
At no time were the matters pertaining to fees and allowances referred to the master. The
petitions of Carl Christensen, E. M. Gunderson, and the master for fees were filed subsequent
to the court hearing and referral of November 30, 1960, and at no time was any petition for
fees filed on behalf of the trustees or any other persons. Nonetheless the master undertook to
take evidence pertaining to fees and allowances and to report his recommendations pertaining
thereto.
3

The coup de grace however was the action of the district court in the undated decision
filed September 15, 1961, which, after authorizing the trustees to borrow $25,000, directs
them to dispose of same said funds under the supervision of the Master in accordance with *
* * the report of the Master filed herein September 12, 1961.
At no time did the appellants, or anyone else interested in the trust, receive notice of the
filing of the last report of the master on September 12, 1961, nor were they allowed the
statutory period of ten days within which to object to the report.4
____________________

3
In the case of In re IrvingAustin Bldg. Corporation, 100 F.2d 574, the Circuit Court of Appeals, Seventh
Circuit, said: A special master is not familiar with the facts which bear on the value of legal services. The court
is. Where half a score of lawyers are all engaged on the same side (or even where they are opposed) and have
been for several months, and arguments have been made in court, who as well as the court knows which lawyer
carried the laboring oar, who rendered constructive,who rendered obstructive services, who, in short, did the
real work and, finally, who is entitled to substantial compensation? The test of physical presence of counsel and
the number of hours actually devoted to sitting in court' must yield before the better test of meritorious service
of which the court is the best judge.
79 Nev. 304, 311 (1963) Ray v. Stecher
they allowed the statutory period of ten days within which to object to the report.
4

[Headnote 3]
The action of the district court in approving the report without complying with the
provisions of NRCP 53(e) was void. His order authorizing the payment of the various
amounts set forth in the last report of the master must be vacated. It is so ordered.
Our determination is without prejudice to any right of the trustees, their counsel, the
counsel for the beneficiaries, and the master to apply to the court for compensation in
accordance with the Uniform Trustees' Accounting Act, NRS 165.010-165.120.
5
No costs
are allowed.
____________________

4
NRCP 53(e) provides that when the master files a report, the clerk shall forthwith mail to all parties notice
of the filing, and within ten days after being served with notice of the filing of the report any party may serve
written objections thereto upon the proper parties.

5
Counsel asked that we determine the amount of compensation to be allowed the trustees. We decline to do
so. However we invite the lower court's attention to relevant annotations in 34 A.L.R. 918 and 161 A.L.R. 870.
____________
79 Nev. 311, 311 (1963) Chiribel v. Southern Pac. Co.
EDWARD AVALOS CHIRIBEL, Appellant, v.
SOUTHERN PACIFIC COMPANY, Respondent.
No. 4576
June 27, 1963 383 P.2d 1
Judge.
Action against railroad for injuries sustained in switchyard. The trial court directed a
verdict for defendant, and plaintiff appealed. The Supreme Court, Badt, C. J., held that
plaintiff who was injured while attempting to cross over couplers between railroad cars,
in middle of busy switchyard, after dark, was guilty of contributory negligence which was
proximate cause of injury he sustained when train was moved, even if plaintiff were
deemed other than a trespasser and railroad were deemed negligent in moving cars
without signal.
C. J., held that plaintiff who was injured while attempting to cross over couplers between
railroad cars, in middle of busy switchyard, after dark, was guilty of contributory negligence
which was proximate cause of injury he sustained when train was moved, even if plaintiff
were deemed other than a trespasser and railroad were deemed negligent in moving cars
without signal.
Affirmed.
Stewart, Horton & McCune, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Respondent.
1. Trial.
On defendant's motion for directed verdict, plaintiff is entitled to benefit of all intendments resulting from
conflicts in evidence.
2. Railroads.
Evidence in action for injuries sustained while plaintiff was crossing switchyard was insufficient to
establish any path or customary use.
3. Railroads.
Plaintiff who was injured while attempting to cross over couplers between railroad cars, in middle of
busy switchyard, after dark, was guilty of contributory negligence which was proximate cause of injury he
sustained when train was moved, even if plaintiff were deemed other than a trespasser and railroad were
deemed negligent in moving cars without signal.
4. Railroads.
That railroad employee had, earlier in evening, removed plaintiff from dangerous position in switchyard
and led him to place of safety did not invoke rescue doctrine to render railroad liable to plaintiff who was
later injured while attempting to cross over couplers between cars in yard.
5. Railroads.
Doctrine of last clear chance did not apply to render railroad liable to plaintiff who was injured when cars
started to move while plaintiff was attempting to cross over couplers between cars in switchyard.
OPINION
The main question presented on this appeal is whether the trial court was justified upon the
undisputed facts in directing a verdict in favor of the defendant, respondent herein, on the
ground that the plaintiff's actions constituted contributory negligence as a matter of law.
in directing a verdict in favor of the defendant, respondent herein, on the ground that the
plaintiff's actions constituted contributory negligence as a matter of law.
More precisely, the question might be thus expressed. Is a person who is injured while
attempting to cross over the couplers between two railroad cars, in the middle of a busy
switchyard, after dark, guilty of contributory negligence as a matter of lawthe injury
occurring when a switch engine, without signal by whistle or bell, started to move the cars? If
so, was that negligence a proximate cause of the accident?
The accident occurred at approximately 8:10 p.m., on April 17, 1961, in the Reno
switchyard of the Southern Pacific Railroad. Plaintiff lived in a small cabin near the tracks
and had been living there for about two weeks prior to the accident. On the day of the
accident plaintiff's own testimony shows that he had spent virtually the entire day drinking.
According to him, it was dark when he chose to cross the switchyard. There was a string of
cars blocking his way. He did not think it was a freight train, maybe just a yard train, but
pretty long, and since he didn't hear any engines or noise and saw no lights, he figured, well,
I am going to cross over, you know. See, it was dark, I didn't want to walk clear over here. * *
* So then I came over the ladder, I got hold of the ladder, you know, on my right hand car,
you know, the car on my right hand. See, I got on the ladder, put my foot on that * * * steel
step. So I got on and then I put my left, left foot on the inside ladder, you know, on the car on
my left hand, and at that time I got hold of that brake rod with my right hand, see, and I
turned around to put my foot on that coupler, you know, to jump right away, because I was
afraid, you know, I was afraidyou could never tell when they might move it, but being that
I didn't see no lights, I didn't hear no engines or nothing like that, no horn or nothing, I said,
well,but still, you know, I never take no chances like that. I don't know how I did that time,
I mean. So I was ready to, you know, jump, you know what I mean, after I was, you know, on
top, ready to cross, when there was a bang, you know, so of course that caught me off
balance.
that caught me off balance. * * * I find myself between the rails under the train, * * * he
started moving. His feet were crushed by the wheels. At the hospital a blood-alcohol test
was made, about two hours after the accident, which revealed a reading of .330. Dr.
Salvadorini testified that the reading indicated a very high degree of intoxication or
drunkenness, resulting in a severe impairment of all bodily functions.
Esping, the railroad patrolman, testified that about 7:30 p.m., prior to the accident, he had
found plaintiff very drunk, leaning against a boxcar in the switchyards. He escorted plaintiff
for about two blocks and left him on the bank of an irrigation ditch, off the railroad property.
Esping was the one who discovered plaintiff after the accident, but plaintiff denied that he
ever saw Esping that night.
[Headnote 1]
There is a conflict in the evidence whether any warning signals were given and the parties
are not in agreement as to the interpretation of certain of respondent's rules requiring warning
signals. However, since on a motion for directed verdict in favor of defendant the plaintiff is
entitled to the benefit of all intendments resulting from such conflicts, we may assume for the
purposes of this opinion that no warning signals were given and that the failure to give any
signals was in violation of the company's rules. We may further assume for the purposes of
this opinion that such failure was evidence of negligence on the part of the defendant.
A large part of the extensive briefs and a large part of the oral argument were devoted to a
discussion of the status of the plaintiff at the time of the accident, and to the determination of
the effect of such status on the extent of the duty of care required of the railroad company for
the protection of the plaintiff under the circumstances. The plaintiff, appellant here, refers to
numerous cases holding that if the evidence shows that the public has for a long time,
customarily and constantly, openly and notoriously, crossed railroad tracks at a place not a
public highway, with the knowledge and acquiescence of the railroad company, a license or
permission by the company to all persons crossing the tracks at that point may be
presumed, and the railroad company is under a duty to exercise reasonable care in the
movement of its trains at points where it is bound to anticipate their presence.
of the railroad company, a license or permission by the company to all persons crossing the
tracks at that point may be presumed, and the railroad company is under a duty to exercise
reasonable care in the movement of its trains at points where it is bound to anticipate their
presence. That such rule is well established may be granted. See Annot., 167 A.L.R. 1253.
And we may assume further that the effect of this rule is not destroyed even where such
crossing occurs in railroad yards or over switch tracks where the evidence shows that the use
of such crossings was general and acquiesced in by the railroad company, id. 1273, although
there is respectable authority to the contrary. Id. 1287.
[Headnote 2]
The evidence introduced by plaintiff fails to bring his case within the definition of even the
most liberal of the cases cited. We have searched the record for the testimony of all witnesses,
including the plaintiff, with reference to crossings of the switchyard by the public. We find it
pitifully insufficient to establish the existence of any path or any customary use. The plaintiff
introduced in evidence an enlarged aerial photograph which covers virtually the entire extent
of the switchyard, showing the seven pair of tracks, the location of the plaintiff's cabin, the
route he took across the switchyard on the day of the accident, the point at which he was
found following the accident, and other details. Witnesses had testified from this enlarged
aerial photograph and placed markings thereon, and during the argument on appeal counsel
for the plaintiff attempted to indicate where he considered the path to be that was followed by
plaintiff across the switchyard until he encountered the cut of cars through which he
attempted to pass by way of the coupling between two of the cars. The entire demonstration
was without persuasion to this court, as it was without persuasion to the district judge. But, if
we go far beyond the limits of the great majority of the cases and should concede arguendo
that the plaintiff might still be a licensee or an implied permittee or a bare licensee while
crossing the switchyard, we are finally confronted with his status when he attempted to
climb through the train over the couplings between two of the cars.
the switchyard, we are finally confronted with his status when he attempted to climb through
the train over the couplings between two of the cars.
Appellant places great reliance on Lerette v. Director General of Railroads, 306 Ill. 348,
137 N.E. 811. Similar reliance was placed on such case in Guess v. Baltimore & O. R. Co., 8
Cir., 191 F.2d 976, 979, where the federal court quoted the Illinois court's statement of facts
in Lerette as follows: About 1 o'clock a.m. Sunday, September 29, 1918, Louis Lerette,
appellee, approached the tracks of the Chicago, Burlington & Quincy Railroad Company at
Creve Coeur street, in the city of LaSalle. There are four tracks at this point. The north track
is a switch track, known as the house track. When appellee reached the crossing, he found
the house track blocked by a long string of freight cars. There were cars as far as he could see
in each direction. He waited for a few minutes, but the cars did not move. Then he sat down
at the side of the street, made, lighted, and smoked a cigarette, and then investigated to see if
the string of cars was likely to be moved soon. He had waited for about 20 minutes, and
during that time he had not seen or heard an engine and the cars had not moved. This crossing
was not used much after midnight, and frequently cars stood upon the crossing from midnight
until morning.[
1
] After satisfying himself that the string of cars was not going to move,
appellee began to climb over the bumper between two of the cars. Just as he was getting onto
the bumper, the string of cars without warning was jerked suddenly, and appellee fell
backwards, and the wheel ran over his right leg, crushing it so that it had to be
amputated.'" The court of appeals then proceeded to distinguish the Lerette case in the
following words:
____________________

1
Compare this with the instant situation. About 7:00 or 7:30 p.m. the switching crew left the switchyard to go
to lunch. Some ate at the depot, some ate in town. They returned in about 30 minutes and resumed their
switching. They had cars on track 7 and on track 5. They gathered these cuts up and took the cars to Sparks.
They had been engaged in this switching operation in the area for some time. Plaintiff testified that during the
two weeks that he lived in the cabin there were a great many boxcars on the tracks near where he lived, and that
this was true every time he looked at the railroad yards; that the number of cars varied because they come in
and go every time; but sometimes they used to be only three, four, five cars kind of scattered out throughout that,
and then another hour you look again and there was a whole string of cars, you know.
warning was jerked suddenly, and appellee fell backwards, and the wheel ran over his right
leg, crushing it so that it had to be amputated.' The court of appeals then proceeded to
distinguish the Lerette case in the following words:
In the Lerette case the crossing was a public grade crossing which was not used much
after midnight, and where freight cars frequently stood from that time until morning. Lerette
did not immediately attempt to pass between the cars, but waited for about twenty minutes at
the crossing and investigated to see if the string of cars was likely to be moved soon. He
satisfied himself that they were not to be moved.
In the instant case, the crossing was not a public one in any ordinary sense, but a pathway
used by pedestrians to cross the defendant's tracks, without the defendant's objection. There
was no evidence that cars blocked the pathway for long periods of time. The tracks were
extensively used. There were at least two safe ways by which the plaintiff could have returned
to his home, one by way of Exchange Avenue where there were gates at the crossing, and
another by way of the underpass at St. Clair Avenue. All that the plaintiff did for his own
safety upon reaching the freight train, which had only recently pulled in, was stop and listen
before attempting to pass between the cars. He made no investigation to ascertain whether the
train was likely to move. He obviously took an unwarranted chance when he attempted to
climb over the bumper between two of the cars. That he thus contributed to the happening of
the accident seems obvious. The evidence that the plaintiff and others had previously passed
between cars of the defendant in following the pathway in suit, did not, in our opinion, make
the railroad's equipment any part of the way across its tracks or amount to an implied
invitation to pass between its cars on any and all occasions. We think the plaintiff in passing
between the cars, under the circumstances disclosed by the evidence, was acting at his own
peril and was guilty of contributory negligence as a matter of law.
It is quite evident that the showing of plaintiff's contributory negligence was far stronger in
Guess than in Lerette, and was actually conclusive in Guess. It is just as clear that the
contributory negligence of the plaintiff in the instant case is far more conclusive than it was
even in the Guess case. In Guess there was a distinct pathway used by pedestrians to cross the
defendant's tracks without the defendant's objection. Not so here. Here, as in Guess, there
were at least two safe ways by which the plaintiff could have returned to his home. Chiribel
could have gone around the cut of cars in either direction. Here, as in Guess, all that
Chiribel did for his own safety upon reaching the cars was to stop and listen before
attempting to pass between the cars. Here, as in Guess, Chiribel obviously took an
unwarranted chance when he attempted to climb over the bumper between the two cars. In
Guess plaintiff had previously passed between cars of the defendant in following the pathway
in suit. Here, not only was there no pathway, but this was the first time that Chiribel made
such an attempt. Here, as in Guess, Chiribel attempted to make the railroad's equipment a part
of the way across the railroad's tracks, so that here there was even less ground to assert an
implied invitation to pass between the railroad cars on all occasions. Here, as in Guess,
Chiribel was acting at his own peril and was guilty of contributory negligence as a matter of
law. Here, as in Guess, the trial court properly referred to Chiribel as a trespasser at the time
he was attempting to pass over the couplings between the cars of defendant's train.
[Headnote 3]
Guess is a fortiori directly in point on the facts of the instant case. The quotations from the
opinion in Guess meet with our entire approval as establishing the conclusion that Chiribel's
contributory negligence was a proximate cause of the accident as a matter of law. This is
particularly so in view of earlier opinions by this court.
In Cox v. L. A. & S. L. R. R., 56 Nev. 472, 487, 56 P.2d 149, 154, this court reversed a
judgment in favor of the plaintiff growing out of the collision of a truck with a railroad train
at a crossing on the ground that plaintiff's contributory negligence was clearly a proximate
cause of the injuries. There this court said: Returning now to the matter of plaintiff's
negligence: A recovery will not be barred if such negligence was not a proximate cause of the
injury. If his negligence was remote, and without it he still would have suffered the injuries,
then it was not contributory in the sense of the law. O'Connor v. North Truckee D. Co., 17
Nev. 245, 30 P. 882. In Musser v. Los Angeles & S. L. R. Co., 53 Nev. 304, 299 P. 1020,
1024, this court defined contributory negligence' as such an act, or omission of precaution,
on the part of the plaintiff, amounting in the circumstances to such want of ordinary care as,
taken in connection with the negligent act, or omission of precaution, on the part of the
defendant proximately contributes to the injury complained of.' It is not necessary that the
plaintiff's negligence shall have been the sole proximate cause of the injury. 1 Thompson on
Negligence, sec. 217; Pinson v. Young, 100 Kans. 452, 164 P. 1102, L. R. A. 1917F, 621. In
the instant case, plaintiff's contributory negligence was clearly a proximate cause of the
injuries.
If in this case the injuries had been willfully, wantonly, or recklessly inflicted, plaintiff's
contributory negligence would be no defense. Crosman v. Southern Pac. Co., 44 Nev. 286,
194 P. 839; Restatement of the Law of Torts, Vol. 2, secs. 481, 482. But, while defendants
were guilty of negligence, we are satisfied that they did not intend that plaintiff or anyone else
should be injured as a result of their negligence, nor do we believe that plaintiff's injuries
were the result of defendants' wanton or reckless disregard of his safety.
In Solen v. V. & T. R. R. Co., 13 Nev. 106, 145 (1878), Hawley, C. J., speaking for this
court, in the main opinion and the opinion on rehearing, occupying over 50 printed pages,
considered virtually all the pertinent cases cited up to that time and dealt at length with the
two lines of cases, one supporting a holding of contributory negligence in the plaintiff as a
matter of law, and the other line requiring submission of the question to the jury where
the undisputed testimony leaves it doubtful to the mind of the court whether the plaintiff
did use reasonable care and prudence.
cases cited up to that time and dealt at length with the two lines of cases, one supporting a
holding of contributory negligence in the plaintiff as a matter of law, and the other line
requiring submission of the question to the jury where the undisputed testimony leaves it
doubtful to the mind of the court whether the plaintiff did use reasonable care and prudence.
The court there said: It is equally as well settled that it is the duty of the passenger or traveler
going across or upon the track of a railroad company, to exercise reasonable care and
diligence upon his part to avoid danger; and whenever such a person undertakes to cross over,
or walk upon a railroad track (even where he has a right to be), without looking or listening
for the approach of a locomotive or train, he is guilty of such negligence as to deprive him of
the right to complain of the negligent conduct of the railroad company. In these and kindred
cases, it is the duty of the court, as stated by Wharton, to take the case from the jury, and to
decide as a question of law that the plaintiff was guilty of contributory negligence.
On the second trial and the second appeal in Crosman v. Southern Pac. Co., 44 Nev. 286,
297, 194 P. 839, 842, a nonsuit against plaintiff was upheld on appeal on the ground that
plaintiff was guilty of contributory negligence as a matter of law, and that his negligence was
a proximate cause of the accident. Crosman, an employee of the Postal Telegraph-Cable
Company, while operating a motor velocipede after dark on a Southern Pacific railroad track
which he was not supposed to use, was injured in a collision with defendant's switch engine.
The switch engine's light was burned out, in violation of a statute, constituting negligence as a
matter of law. The court quoted with approval the following language from Solen, supra,
When the facts, showing want of ordinary care * * * on the part of plaintiff, are clear and
undisputed, the question of negligence is one of law, to be decided by the court.' Here, as in
Crosman, there is no conflicting evidence as to Chiribel's actions. His own testimony quoted
supra clearly shows the negligence on his part that caused the accident.
Quoting further from Crosman: If appellant's acts imputed negligence on his part and were
so conclusive in this respect that reasonable minds ought not to differ as to such conclusion,
his negligence flows from the acts as a matter of law.
To like effect this court said in Solen v. V. & T.R.R. Co., 13 Nev. 106, 126:
But the right to assume that the railroad company would properly perform its duty does
not shield the plaintiff from the exercise of ordinary care and prudence on his part. The fact
that the locomotive and tender of defendant was being carelessly and negligently moved
backwards, without any signal being given of its approach, does not, of itself, authorize
plaintiff to recover damages. If plaintiff, notwithstanding the negligence of the railroad
company, recklessly exposed himself to danger, and it appears that the injury complained of
would not have occurred but for his own misconduct or negligence, he cannot recover
damages, but must bear the consequences of his own folly.
Having thus determined that there was no error in the directed verdict in favor of the
defendant, there being a complete absence of any showing that the actions of the railroad
were malicious, willful, or wanton, it is unnecessary to discuss further the question of the
defendant's negligence other than the references thereto heretofore made. Nothing in the case
suggests that the defendant had any occasion to suspect Chiribel's presence between the cars,
or that there was any duty on the part of the defendant to search along the cut of cars for the
purpose of ascertaining whether any trespasser might be attempting to cross over the
couplings.
We may briefly dispose of other errors assigned by appellant.
[Headnote 4]
We have heretofore referred to the fact that one Esping had, sometime before the accident,
removed Chiribel from a dangerous position in the railroad yards. Appellant contends that the
defendant is liable for what happened later under the "rescue doctrine."
happened later under the rescue doctrine. But Esping did not leave Chiribel in a worse
position than before. He placed him in a position of safety. There was no connection between
Esping's removal of Chiribel from the switchyard and Chiribel's subsequent accident.
[Headnote 5]
Appellant also asserts defendant's liability under the doctrine of last clear chance. That this
doctrine was not applicable is clear. Styris v. Folk, 62 Nev. 209, 146 P.2d 782.
For further switchyard cases in point see Vanderslice v. Davis, 119 Okl. 87, 248 P. 585,
and cases therein cited; Gulf, C. & S.F. Ry. Co. v. Dees, 44 Okl. 118, 143 P. 852, L.R.A.
1918E, 396.
We have considered numerous other cases cited by appellant. We do not find them in point
or contrary to the views herein expressed. We have also considered other matters discussed
by appellant which do not however require further discussion.
The judgment is affirmed with costs.
McNamee, J., and Compton, D. J., concur.
Mr. Justice Thompson being disqualified, the Governor commissioned Honorable William
P. Compton of the Eighth Judicial District to sit in his place.
____________
79 Nev. 323, 323 (1963) Maxwell v. Amaral
BEULAJEAN MAXWELL, Appellant, v.
VERNON AMARAL, Respondent.
Nos. 4599 and 4600
(Cross-appeals)
June 28, 1963 383 P.2d 365
Georgetta, Judge.
Action by guest against host for personal injuries sustained in one automobile accident.
The trial court entered judgment for the host, and the guest appealed. The host cross-appealed
from an order granting the guest's motion to retax costs. The Supreme Court, Thompson, J.,
held that question whether host, who had slept only four hours of 48-hour period prior to
accident, was guilty of gross negligence in falling asleep at wheel was for jury, and that
prevailing defendant was entitled to recover cost of plaintiff's original deposition which was
filed with court, published during trial, and used by defendant to impeach or contradict
plaintiff's testimony.
Affirmed on the merits; order retaxing costs modified.
Nada Novakovich, of Reno, for Maxwell.
Pike & McLaughlin, and William N. Dunseath, for Amaral.
1. Automobiles.
Question whether host, who had slept only four hours of 48-hour period prior to accident, was guilty of
gross negligence in falling asleep at wheel was for jury. NRS 41.180.
2. Costs.
Term necessary disbursement within statute permitting prevailing defendant to recover his costs and
necessary disbursement occurs when original deposition of party, or witness who is not a party, is filed with
court, and is published during trial and used therein, either as direct evidence, to impeach or contradict
testimony of deponent as witness, or to refresh recollection of witness. NRS 18.010; NRCP 26(a, d, e),
30, 35.
3. Costs.
Prevailing defendant was entitled to recover cost of plaintiff's original deposition which was filed with
court, published during trial, and used by defendant to impeach or contradict plaintiff's testimony. NRS
18.010; NRCP 26(a, d, e), 30, 35.
4. Costs.
Prevailing defendant could not recover cost of copy of his own deposition, which was used by his counsel
only to follow deponent's answers to deposition questions read by plaintiff's counsel while cross-examining
defendant. NRS 18.010; NRCP 26(a, d, e), 30, 35.
5. Costs.
Prevailing defendant could not recover cost of obtaining written medical report from doctor selected to
conduct independent medical examination of plaintiff, even though such report was received in evidence by
stipulation. NRS 18.010; NRCP 26(a, d, e), 30, 35.
OPINION
This is a guest-host case (NRS 41.180) in which the guest Maxwell asks damages from her
host Amaral for personal injuries sustained in a one car accident. The claimed basis for the
host's liability is gross negligence. At the close of the case the host moved for a directed
verdict (NRCP 50), contending that gross negligence had not been shown as a matter of law.
His motion was denied. The lower court reasoned that the issue was one concerning which
reasonable minds might differ (Kuser v. Barengo, 70 Nev. 66, 254 P.2d 447; Troop v. Young,
75 Nev. 434, 345 P.2d 226) and was, therefore, a jury question. The jury returned its verdict
for the host.
1
The guest appeals. We are requested to announce that the uncontradicted
evidence of the host's conduct is of such a character as to establish his gross negligence as a
matter of law, thus justifying remand for a new trial, presumably limited to the issue of
damages only. We decline to do so.
1. In brief, the accident was caused by the host falling asleep while driving. The authorities
regarding such an event are collected at 28 A.L.R.2d 12. It is there stated {p.
____________________

1
The general verdict was accompanied by the jury's answers to written interrogatories on issues of fact. It
found that: (a) Maxwell was a guest; (b) Amaral was negligent; (c) Amaral was not grossly negligent; (d)
Maxwell was contributorily negligent. Though Maxwell assigns as error the jury finding that she was
contributorily negligent, we do not consider it because it has no bearing on the disposition of this appeal.
there stated (p. 60), The numerous cases in which courts have considered the question
whether falling asleep is in itself gross negligence are almost unanimously to the effect that
the fact of falling asleep while driving is sufficient to establish a prima facie case of ordinary
negligence only, but that it is not sufficient to take the case to the jury on the question of the
operator's gross negligence. At p. 62 While the mere fact of falling asleep while driving
does not give rise to an inference of gross negligence, the courts unanimously agree that the
driver of an automobile who falls asleep while driving is grossly negligent if he had some
prior warning of the likelihood of his going to sleep. The driver's foreseeability of the
likelihood of his falling asleep appears to be the relevant inquiry when his liability rests upon
gross negligence. Here the guest does not dispute the general rules just mentioned. However,
she does contend that the host should have foreseen the likelihood of his falling asleep, and
that there is no room for a difference of opinion among reasonable people on this issue. We
therefore turn to focus our attention on the facts relevant to this narrow issue of foreseeability.
The accident occurred on Sunday, August 25, 1957, some time between 5:30 and 6:30 a.m.
On the preceding Friday, August 23, the host had worked a full shift at his place of business
in Walnut Creek, California, after which he had attended a party, arriving home about 3:00
a.m., August 24. He slept for three or four hours, and then drove to Lake Tahoe. He intended
to participate in the Minden, Nevada drag races on Sunday, August 25. He sought sleeping
quarters near the Stateline, southeast Lake Tahoe, but without success. He ate dinner at
Harrah's, and thereafter visited night clubs in the area. During the early morning of August 25
he met Beulajean Maxwell. They conversed, and danced together several times. Around 5:00
a.m. he asked if he might drive her home.
2
She accompanied him.
____________________

2
As to this the evidence is in conflict. However, it had no bearing on the issue posed on this appeal, the jury
having found Maxwell to be a guest, which finding in not here questioned.
accompanied him. On the journey he fell asleep, his car crossed over the opposing traffic
lane, continued down an embankment and came to rest when it struck a tree. The host
admitted that he was tired before getting into his car to drive his guest to her home, and that
he had consumed six or seven Bourbon highballs during the evening and morning preceding
the accident. His blood alcohol after the accident (exact time unknown) was .124. The guest
stated that her host was driving properly and correctly before the accident. The host testified
that, If I had any idea I was going to fall asleep, I would have pulled off and stopped.
[Headnote 1]
Here the guest contends that the modicum of sleep enjoyed by her tired host (only three to
four hours of sleep within the 48 hours before the accident), his consumption of alcohol and
strenuous activity, conclusively prove that he (the host) must have foreseen the likelihood of
falling asleep at the wheel. Such circumstances are evidence of foreseeability, and afford a
solid basis for jury argument. However, in our view, the argument is, indeed, one tailored for
jury consumption rather than ours. It is opposed on the record in this case by the host's
self-serving declaration that he had no prior warning of sleep, and the guest's
acknowledgment that his driving was proper and not erratic up to the time of the accident.
Presumably each argument was appropriately put to the jury by the contending parties.
3
It is
manifest that whether the host should have foreseen the likelihood of falling asleep or dozing
off while driving was an arguable issue, one concerning which reasonable men could differ. It
was properly given to the jury for decision. Cf. Kuser v. Barengo, 70 Nev. 66, 254 P.2d 447;
Troop v. Young, 75 Nev. 434, 345 P.2d 226; Garland v. Greenspan, 74 Nev. 88, 323 P.2d 27
(a non-jury case).
____________________

3
It is of interest to note that the guest opposed the host's motion for a directed verdict, arguing that the issue
of gross negligence was one of fact for the jury to decide, a position opposite to the one she assumes on this
appeal.
The case of Heric v. Christensen, 73 Nev. 6, 306 P.2d 769, relied upon by the guest, does
not aid her. In Heric this court, upon review of the record, decided that there was substantial
evidence to support the jury verdict for the defendant in a rear-end collision case. We reach
the same conclusion here, i.e., that there was a factual issue for jury determination, and that
its determination for the host-defendant finds support in the evidence.
2. Following trial the prevailing party (the host Amaral) filed a cost bill (NRS 18.110).
His opponent filed a motion to retax costs, objecting to three of the listed items. The motion
to retax was granted. By cross-appeal the host asks that we review this ruling.
The questioned items are: First, the cost of the original deposition of the guest-plaintiff,
which deposition was published during trial and used by defense counsel for impeachment of
the guest-plaintiff during cross examination; Second, the cost of a copy of the deposition of
the host-defendant, which was used by his counsel only to follow the deponent's answers to
deposition questions read by plaintiff's counsel while cross examining the host-defendant;
and, Third, the cost of obtaining a written medical report from the doctor selected to conduct
an independent medical examination of the guest-plaintiff. The doctor was not available to
testify at the trial and his written report, by stipulation, was received in evidence in lieu of
testimony.
By statute a prevailing defendant may recover his costs and necessary disbursements in
the action. (NRS 18.010, 18.020, 18.040.) However, no specific provision as to depositions,
written independent medical reports (and, indeed, many other recurring cost bill items) is
contained therein. Consequently, trial courts have been plagued with motions to retax, and an
understandable lack of uniformity in ruling upon them (what is a necessary disbursement?)
has resulted. It appears to us that predictability in this area is desired by the trial courts and
the trial bar. To that end we propose to establish workable rules with regard to the questioned
items here involved.
(a) Depositions. Since the adoption of the Nevada Rules of Civil Procedure we have twice
considered the cost of depositions as a recoverable item by the prevailing party, Scott v.
Smith, 73 Nev. 158, 311 P.2d 731; Armstrong v. Onufrock, 75 Nev. 342, 341 P.2d 105, 76
A.L.R.2d 946. In Scott v. Smith, supra, it was held that the trial court, in its discretion, could
permit the prevailing party to recover the cost of depositions if trial use was made of them.
The trial use there involved was twofold, to correct an answer of a witness and to refresh
his recollection. In Armstrong v. Onufrock, supra, we held that the cost of a deposition taken
for discovery only was not recoverable by the prevailing party.
[Headnotes 2-4]
NRCP 26(a) provides that a deposition may be taken for discovery, for use as evidence, or
both. See also NRCP 26(a)(e). NRCP 26(d) provides, inter alia, that a deposition may be used
against any party who was present at its taking to contradict or impeach the testimony of a
deponent as a witness. NRCP 30 contemplates that the deponent shall sign the original
deposition (unless signature is waived, or the deponent is ill, or cannot be found, or refuses to
sign), the officer before whom it is taken shall certify that the witness was duly sworn and
that the deposition is a true record of his testimony, and shall seal and file it with the court
wherein the action is pending. These rules and NRS 18.010, when read together, reasonably
lead us to conclude that a necessary disbursement within NRS 18.010 occurs when the
original deposition of a party, or a witness who is not a party, is filed with the court (NRCP
30), published during trial and used therein, either as direct evidence (NRCP 26(a)(e)), or to
impeach or contradict the testimony of the deponent as a witness (NRCP 26(d)), or to refresh
the recollection of the witness (Scott v. Smith, supra). We expressly overrule that portion of
the holding of the Scott v. Smith case, supra, which invests the trial court with a discretion to
decide whether deposition expense is a necessary disbursement, believing that predictability
is of paramount concern. Accordingly, with regard to the deposition cost items here
involved we hold that: 1.
to the deposition cost items here involved we hold that: 1. The prevailing defendant is entitled
to recover the cost of the original deposition of the plaintiff, which deposition was filed with
the court, published during trial, and used by the defendant to impeach or contradict the
plaintiff's testimony. 2. The prevailing defendant may not recover the cost of a copy of his
own deposition.
[Headnote 5]
(b) Written Medical Report. Here, as in most personal injury litigation, an independent
medical examination of the plaintiff-guest was requested and obtained. (NRCP 35.) The
doctor charged $60 for his examination and written report thereof. The doctor did not testify,
being unavailable at the time of trial. By stipulation his written report was received in
evidence. The prevailing defendant-host contends that, under these circumstances, he should
be allowed to recover such expense as a necessary disbursement, reasoning that the written
report served the function of a witness. (NRS 18.110 (2).) We do not agree. A written report
is not a witness within the purview of the statute, nor is it the deposition of a witness. The
securing of it was a pre-trial discovery procedure (cf. Armstrong v. Onufrock, supra)
undertaken with full knowledge that the report could not, in the absence of benevolent
stipulation, qualify for introduction as evidence during trial (though available to the opponent
for impeachment, etc., should the writer testify). Had a stipulation not been made for the
introduction of the report into evidence, its cost would not be recoverable. We perceive no
valid reason for a different result here.
We conclude that the judgment on the merits must be affirmed. The order granting the
guest-plaintiff's motion to retax costs is modified to permit the host-defendant to recover the
cost of the original deposition of the plaintiff which was published and used during trial.
____________
79 Nev. 330, 330 (1963) Gott v. Johnson
RONALD GOTT, Appellant, v. JAMES K.
JOHNSON, Respondent.
No. 4594
July 1, 1963 383 P.2d 363
Negligence action against owner for injury sustained by invitee while assisting owner and
others in attempt to move a heavy cabinet at owner's request. The trial court rendered
judgment for defendant, and plaintiff appealed. The Supreme Court, McNamee, J., held, inter
alia, that finding that danger inherent in movement of cabinet was as obvious to invitee as to
owner warranted conclusion that owner, in absence of any overt act of negligence, was not
liable for injury to invitee.
Affirmed.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Appellant.
1. Negligence.
Owner had duty to exercise ordinary care for invitee while assisting owner and others in attempt to move
heavy cabinet at owner's request, and owner did not assume any greater duty of care by supervising
movement of cabinet.
2. Negligence.
In absence of any overt act of negligence by owner, liability of owner for injury to invitee while assisting
owner and others in attempt to move heavy cabinet at owner's request could be predicated only on superior
knowledge chargeable to owner of danger inherent in movement of cabinet and failure to warn invitee of
such danger.
3. Negligence.
In action against owner for injury to invitee while assisting owner and others in attempt to move heavy
cabinet at owner's request, whether danger inherent in movement of cabinet was as obvious to invitee as to
owner or whether owner possessed superior knowledge as to weight of cabinet and invitee reasonably
believed that owner had superior knowledge as to propriety of only four men undertaking to move cabinet
was fact question.
4. Negligence.
Owner or occupant is not liable for injury to invitee from dangers that are obvious, reasonably apparent
or as well known to injured invitee as to owner or occupant.
5. Negligence.
In negligence action against owner for injury to invitee while assisting owner and others in attempt to
move heavy cabinet at owner's request, whether owner told invitee before accident that cabinet weighed
approximately 800 pounds and, if so, whether invitee, being experienced in handling heavy objects, relied
on such statement were fact questions.
6. Negligence.
Finding that danger inherent in movement of heavy cabinet was as obvious to invitee as to owner
warranted conclusion that owner, in absence of any overt act of negligence, was not liable for injury to
invitee while assisting owner and others in attempt to move cabinet at owner's request.
OPINION
This is an action for damages for the alleged negligence of respondent which resulted in
injuries to appellant when a heavy cabinet fell on him.
The case was tried by the court without a jury and only the question of liability was
submitted to the court for determination, the right being reserved to inquire with respect to
damages if liability was shown.
The court found as follows:
On October 24, 1961, respondent asked appellant to come over to respondent's residence
garage to assist him and two others take down and move a large cabinet which had been used
for shelving. Before the work of removal began, respondent estimated the weight of the unit
at approximately 1,000 lbs. After the accident he concluded it to be nearer 2,000 lbs. The
entire unit was exposed to the view of all four men and there was no defect, danger, or risk
known to respondent which was not within the knowledge of appellant. While the unit was
being lowered, respondent, believing then that it was too heavy for him and the other three
men engaged in moving it, told the three to let go immediately and jump away.
jump away. Appellant, not moving quickly enough, was struck by the unit and injured.
Because of his former employment as a laborer appellant was familiar with heavy objects and
had the ability to determine the amount of risk involved in the moving of said unit.
The court concluded from said findings that appellant was an invitee; that respondent was
not liable for an injury from dangers that were obvious, reasonably apparent, and as well
known to appellant as to respondent; that respondent was not negligent; and that if respondent
were deemed to have been negligent, appellant would be guilty of negligence in the same
manner and to an equal degree, which would bar recovery.
[Headnotes 1-3]
It is conceded by appellant that the lower court correctly determined that the relationship
between appellant and respondent at the time of the accident was that of invitee and owner,
and that under the decision in Nevada T. & W. Co. v. Peterson, 60 Nev. 90, 99 P.2d 633, an
owner owes an invitee the duty of ordinary care. Appellant maintains however that
respondent assumed a greater duty of care by supervising the act of moving the unit. Such is
not the law. In directing the removal the respondent was still under the duty to exercise
ordinary care. He was not guilty of any overt act of negligence. Therefore his liability could
be premised only on such knowledge chargeable to him of the dangers inherent in the
movement of the unit superior to that of appellant and in a failure to warn appellant of such
dangers. Under the evidence presented, reasonable men might differ whether respondent as
owner possessed any greater knowledge of the weight of the unit than appellant. Appellant
was familiar with heavy objects. He had been in the garage many times and had often seen the
cabinet. At the time of the accident one of the garage doors was open and all present were
able to observe the cabinet. It might have been inferred from the evidence that appellant
reasonably believed that respondent had superior knowledge as to the propriety of only four
men undertaking the particular task.
four men undertaking the particular task. An opposite inference likewise was possible if the
dangers were as obvious to appellant as to respondent. This was a factual question.
[Headnote 4]
There is no liability for injuries from dangers that are obvious, reasonably apparent, or as
well known to the person injured as they are to the owner or occupant. 38 Am.Jur.,
Negligence 97.
In Dingman v. A. F. Mattock Company, 15 Cal.2d 622, 104 P.2d 26, the plaintiff, an
invitee, was injured when a scantling broke. The supreme court, in holding that the defendant
had no greater knowledge of the danger than the plaintiff, quoted from Shanley v. American
Olive Company, 185 Cal. 552, 555, 197 P. 793, 794, as follows:
But such owner is entitled to assume that such invitee will perceive that which would be
obvious to him upon the ordinary use of his own senses. He is not required to give to the
invitee notice or warning of an obvious danger.
[Headnote 5]
Appellant testified that the respondent, before the accident, stated to him that the unit
weighed approximately 800 lbs. and that four men could handle it. Respondent did not
remember making any such statement. Whether the statement was made or not, and if so,
whether appellant placed any reliance thereon, considering the fact that he was experienced
with the handling of heavy objects, were questions of fact for the trial court.
The case was fully tried on the issue of negligence and the trial court found that respondent
was not negligent. Appellant admits that this court will not disturb findings which are
supported by evidence unless clearly erroneous, but he asserts that this rule does not apply
to the trial court's conclusions of law.
[Headnote 6]
Having determined that the danger was as obvious to the appellant as to the respondent,
the trial court properly concluded that no liability resulted from the accident.
Affirmed.
Badt, C. J., and Brown, D. J., concur.
Thompson, J., being disqualified, the Governor commissioned Honorable Merwyn H.
Brown, Judge of the Sixth Judicial District Court, to sit in his place.
____________
79 Nev. 334, 334 (1963) Marlette Lake Co. v. Sawyer
MARLETTE LAKE COMPANY, a Nevada Corporation, Petitioner, v. GRANT SAWYER,
Governor of the State of Nevada, JOHN KOONTZ, Secretary of the State of Nevada, and
MICHAEL MIRABELLI, Treasurer of the State of Nevada, Members of and Constituting the
State Bond Commission of the State of Nevada, Respondents.
No. 4647
July 3, 1963 383 P.2d 369
Original proceedings in mandamus.
The Supreme Court, Thompson, J., held that the constitution permits the legislature to
authorize the state to exceed the debt limitation by purchasing private water rights, watershed,
and water collection, transmission, storage and distribution system.
Writ granted.
Bible, McDonald & Carano, of Reno, for Petitioner.
Harvey Dickerson, Attorney General, State of Nevada, and D. W. Priest, Chief Assistant
Attorney General, for Respondents.
1. States.
The legislative determination that it is expedient and advisable for state to purchase a company's water
rights, watershed, and water collection, transmission, storage and distribution system in order to protect and
preserve natural resources is one properly within its province to make. Const. art. 9, 3; Stats. 1963, ch.
462, 2.
2. States.
In constitutional provision authorizing legislature to exceed debt limitation if necessary, expedient or
advisable for protection and preservation of any of its property or natural resources, the term its has
geographical rather than proprietary connotation. Const. art. 9, 3.
3. States.
The constitution enables legislature (without regard to the debt ceiling) to enter into any contract (with
the United States, another state, or with anyone having the capacity to contract) which legislature deems
necessary, expedient or advisable for purpose of securing benefits or protecting and preserving property or
natural resources located within geographical limits of Nevada. Stats. 1963, ch. 462; Const. art. 9, 3.
4. States.
The statute authorizing state to exceed debt limit by purchasing private water rights, watershed, and water
collection, transmission, storage and distribution system is constitutionally permissible. Const. art. 9,
3; Stats. 1963, ch. 462, 2.
OPINION
Marlette Lake Company seeks a writ of mandate to compel the State Bond Commission to
issue $1,650,000 of the state's negotiable, coupon, general obligation bonds as required by
Stats. Nev. 1963, ch. 462, 3, subsec. 3.
1
The statutory conditions precedent to the issuance
of said bonds have been met. Therefore Marlette contends that mandamus will lie to compel
the commission to perform an act which the law especially enjoins as a duty resulting from
office.
____________________

1
The subsection reads, Upon the execution of the contract herein authorized, the state land register shall
deliver a copy thereof to the state bond commission hereinafter created and thereafter it shall be the mandatory
duty of such commission to issue the bonds in behalf of the State of Nevada and deliver the same to Marlette
Lake Company.
enjoins as a duty resulting from office. NRS 34.160; Cauble v. Beemer, 64 Nev. 77, 177 P.2d
677. The choice of remedy is not disputed. However, the commission does urge that the
proposed bond issue is not constitutionally permissible.
The first paragraph of Nev. Const. art. 9, 3, provides that public debts contracted by the
state shall never, in the aggregate, exclusive of interest, exceed the sum of one percent of the
assessed valuation of the state * * *. The people of Nevada at the 1934 general election
approved and ratified the legislature's proposal that there be added to Nev. Const. art. 9, 3, a
second paragraph reading, The state, notwithstanding the foregoing limitations, may,
pursuant to the authority of the legislature, make and enter into any and all contracts
necessary, expedient or advisable for the protection and preservation of any of its property or
natural resources, or for the purposes of obtaining the benefits thereof, however arising and
whether arising by or through any undertaking or project of the United States or by or through
any treaty or compact between the states, or otherwise. The legislature may from time to time
make such appropriations as may be necessary to carry out the obligations of the state under
such contracts, and shall levy such tax as may be necessary to pay the same or carry them into
effect.
As the aggregate of the public debts already contracted by the state, together with those
authorized by the 1963 legislature to be contracted, including the contemplated Marlette bond
issue, would exceed the sum of one percent of the assessed valuation of the state, the 1963
legislature in enacting Stats. Nev. 1963, ch. 462, expressly declared: Sec. 2. After considered
judgment and consideration of the provisions of and the authority contained in the second
paragraph of section 3 of article 9 of the constitution of the State of Nevada, the legislature
finds and declares that the acceptance by the State of Nevada of the offer of Marlette Lake
Company to sell the property described in section 1 to the state is both expedient and
advisable for the protection and preservation of the natural resources of the State of Nevada
and for the purposes of obtaining and continuing the benefits thereof now and in future
years for the state and its citizens.
State of Nevada and for the purposes of obtaining and continuing the benefits thereof now
and in future years for the state and its citizens. Subject to the conditions hereinafter
contained, the execution of a contract by the State of Nevada with Marlette Lake Company is
hereby expressly authorized for the purchase by the state of the property described in section
1, payment therefor by the state to be made by the issuance of the state's negotiable, coupon,
general obligation bonds in the principal amount of $1,650,000 pursuant to the authority
contained in the second paragraph of section 3 of article 9 of the constitution of the State of
Nevada and notwithstanding the limitation of indebtedness imposed by the first paragraph of
section 3 of article 9 of the constitution of the State of Nevada. [Emphasis added.] We must,
therefore, decide whether the proposed state purchase of the Marlette properties as authorized
by Stats. Nev. 1963, ch. 462, is constitutionally permissible within the second paragraph of
Nev. Const. art. 9, 3.
The contemplated sale by Marlette and purchase by the state embraces, inter alia, the
former's water rights, approximately 5,377.91 acres of land, easements, pipelines, flumes, and
such other fixtures and appurtenances as are used in connection with the collection,
transmission and storage of water by Marlette in Washoe, Ormsby and Storey counties,
Nevada. The water distribution system of Marlette presently supplies water for the domestic,
industrial, commercial, municipal and state purposes to the general area comprising Virginia
City, Gold Hill, Silver City and Carson City. The second paragraph of Nev. Const. art. 9, 3,
specifically authorizes the legislature to contract public debts in excess of the one percent
aggregate debt ceiling if, (a) necessary, (b) expedient, or (c) advisable for any one or all of the
following purposes: the protection and preservation of its property; the protection and
preservation of its natural resources; the obtaining of the benefits of its property; the
obtaining of the benefits of its natural resources.
[Headnotes 1-3]
The legislative determination (Stats. Nev. 1963, ch. 462, 2) that it is expedient and
advisable for the state to purchase the Marlette properties in order to protect and preserve
natural resources, is one properly within its province to make (cf. Urban Renewal Agency v.
Iacometti, 79 Nev. 113, 379 P.2d 466; Berman v. Parker, 348 U. S. 26, 75 S.Ct. 98, 99 L.Ed.
27) and is not here questioned. However, the proposed purchase is attacked upon the premise
that the second paragraph of art. 9, 3, is limited in scope to the protection and preservation
of state owned property, and does not authorize a public debt to be contracted for the
purchase of properties in private ownership. It is urged that the use of the word its in the
phrase necessary, expedient or advisable for the protection and preservation of any of its
property or natural resources demands such a conclusion. We do not agree. The term its
has a geographical rather than a proprietary connotation. Accordingly the second paragraph of
Nev. Const. art. 9, 3, enables the legislature (without regard to the debt ceiling established
by the first paragraph thereof) to enter into any contract (with the United States, another state,
or with anyone having the capacity to contract
2
) which the legislature deems necessary,
expedient or advisable for the purpose of securing the benefits of or protecting and preserving
property or natural resources located within the geographical limits of Nevada.
Therefore we conclude that:
[Headnote 4]
1. Stats. Nev. 1963, ch. 462, is constitutionally permissible within the second paragraph of
Nev. Const. art. 9, 3.
2. The Agreement for Purchase of Property of Marlette Lake Company made June 12,
1963, between Marlette Lake Company and the State of Nevada, in accordance with Stats.
Nev. 1963, ch. 462, is valid.
____________________

2
Such we deem to be the meaning of the phrase of the second paragraph, however arising and whether
arising by or through any undertaking or project of the United States or by or through any treaty or compact
between the states, or otherwise.
3. The State Bond Commission has a mandatory duty to issue $1,650,000 of the state's
negotiable, coupon, general obligation bonds to Marlette Lake Company in the form and
manner designated by Stats. Nev. 1963, ch. 462; and a peremptory writ of mandate
compelling the said commission to perform its duty shall issue.
McNamee, J., concurs.
Badt, C. J., concurring:
I concur in the result, but for a different reason. Putting aside for a moment the needs of
Virginia City,
1
Silver City, and Gold Hill, it is a matter of common knowledge that within
the past several years the State of Nevada has been compelled to buy water from Marlette to
serve the State Capitol, the State Prison, the Capitol grounds and other buildings owned by
the state essential to the use of its public officers and various commissions, departments,
agencies, and employees. This occurred at times when Carson Water Co., the public utility
supplying Carson City, was curtailing and regulating the use of water by the citizens of
Carson City (including hundreds of state employees who by reason of their employment had
their residences in the city) by prescribing the hours of the day and the days of the week
during which lawns, trees, and gardens might be irrigated. Without thus supplementing the
city's regular water system with water purchased from Marlette, the state's historic Capitol
and its beautiful Capitol square,
2
with its age-old pines, firs, and cedars (not to mention
American elms, Norwegian and sugar maple, and English linden) would have suffered
greatly, and possibly have been lost. With the Marlette property on the market for sale (and
this means in essence its water rights and its watershed), such property may not be
available in the future.
____________________

1
Shortage of water in Virginia City during several seasons is a matter of public record in the files of the
office of the Public Service Commission, importuned by the citizens of that city to compel the Marlette Water
Company to repair its flumes and make other necessary repairs and improvements to permit enough water to
reach the consumers to afford sufficient water for domestic use.

2
Marred though it is by the erection upon it of a state office building constructed along the lines of modern
architecture.
and its watershed), such property may not be available in the future. A state government
without an adequate seat of government cannot reasonably be envisioned.
3

Petitioner's opening brief presents this issue: The purpose of the contract between the
State of Nevada and Marlette Lake Company is to transfer the Marlette Lake water system
from the company to the state. The water system supplies water to the state-owned buildings
in the Carson City area. No citation of authority is necessary to establish * * * that the
purpose of the contract is to protect and preserve state property * * *. Nowhere do the
respondents controvert this. In contending against petitioner's assertion that the bonds could
be issued unaffected by the limitation of authorized state indebtednesses to 1 percent of the
assessed valuation for the protection and preservation of its natural resources * * *,
respondents argued that the Marlette property was not a part of itsthe state'snatural
resources, and said: This authority which the people gave to the legislature in 1934 to incur
debts for the protection and preservation of its property [despite the 1 percent assessed value
limitation] must be construed to have reference only to property owned by the state. The
issue, then, thus stated by petitioner and conceded by respondents should dispose of the
question presented to this court.
I would approve the contract and issue the writ of mandate under the constitutional
provision authorizing the incurring of the indebtedness free of the limitation of the first
paragraph of art. 9, 3, and under the authority of the second paragraph of said section for
the protection and preservation of its [the state's] property and under the legislative finding
that it is both expedient and advisable * * * for the purpose of obtaining and continuing the
benefits thereof now and in future years for the state and its citizens."
____________________

3
The constitution requires the seat of government to be at Carson City, Nev. Const. art. 15 1.
and in future years for the state and its citizens. I do not think that the necessities growing
out of the present petition and answer require a holding of such farreaching implications as
found in the majority opinion.
____________
79 Nev. 341, 341 (1963) Pravorne v. McLeod
PAT I. PRAVORNE, Appellant, v. WAYNE McLEOD
and LOUISE McLEOD, Respondents.
No. 4603
July 16, 1963 383 P.2d 855
Purchaser's action for specific performance of vendors' contract to sell realty. The lower
court entered judgment for the vendors and the purchaser appealed. The Supreme Court,
Badt, C. J., held that the purchaser's signing and returning of the agreement which had been
drafted by the vendors and forwarded to the purchaser constituted an unconditional
acceptance of the vendors' offer, and that a request seeking insertion of a provision for
gradual release of portions of the realty from the note and deed of trust as stated portions of
the indebtedness were paid was only a request for an additional benefit and not an essential
term or condition of acceptance.
George E. Franklin, Jr., of Las Vegas, for Appellant.
Springmeyer, Thompson & Dixon, of Reno, for Respondents.
1. Vendor and Purchaser.
Purchaser's signing and returning of agreement for sale of realty constituted an unconditional acceptance
of vendors' offer, and request attached to agreement seeking insertion of a provision for gradual release of
portions of the realty from the note and deed of trust as stated portions of the indebtedness were paid was
not an essential term or condition of acceptance.
Notwithstanding lack of their signatures on the agreement itself, vendors were bound by terms of the
agreement which they had drafted and sent to purchaser where a signed covering letter accompanying the
agreement contained both the offer and the vendors' unconditional promise to sign, demonstrating the
vendors' assent thereto.
OPINION
The question here involved for determination is whether the instrument herein referred to
as a contract of purchase and sale was a completed contract, or whether it was merely an offer
made by the McLeods to Pravorne to enter into a contract, which offer was rejected by
Pravorne and a counteroffer made by him, which in turn was not accepted by the McLeods.
Under similar circumstances the law was very simply stated in Hargrave v. Heard Inv. Co.,
56 Ariz. 77, 105 P.2d 520, 521, as follows:
It is the law that when A offers B to enter into a contract on certain terms, and B declines
to accept those terms but offers a counterproposition, the original offer loses its effect, and is
thereafter only open to acceptance by B when renewed by A. On the other hand, if A makes
an offer which is unconditionally accepted by B, the fact that B, after such acceptance,
proposes a modification of the original contract, which is declined by A, does not affect the
validity of the original contract. If then, in the present case, the original contract of purchase
and sale, upon its delivery to and acceptance by plaintiff, was a completed and binding
contract between defendant and the insurance company, the fact that the latter desired to
have certain terms added to those of the contract in the escrow directions to plaintiff does
not affect the validity of the contract."
the latter desired to have certain terms added to those of the contract in the escrow directions
to plaintiff does not affect the validity of the contract.
Neither party contests such general recital of the applicable well-established law.
Pravorne, in his complaint for specific performance, asserts that there was such completed
contract. McLeod insists that his offer to enter into the contract of purchase and sale was not
unconditionally accepted by Pravorne but that Pravorne rejected the same and made a
counteroffer, which McLeod refused to accept. The case then turns upon the construction of
the written instruments and correspondence involved and the actions of the parties
thereunder. The facts are as follows:
The parties had been negotiating with respect to a proposed purchase of real property by
Pravorne from McLeod. Pravorne had the Nevada Title Insurance Company prepare escrow
instructions. They were mailed to McLeod but were unsatisfactory to him, so he had his
attorney draft a complete new contract entitled Agreement for Sale of Realty, which in turn
contained escrow instructions. McLeod then mailed this agreement to Pravorne's real estate
broker, with a letter addressed to the broker and signed by McLeod, reading as follows:
Dear Mr. Bell:
Upon reviewing your Escrow Instructions which were prepared by Nevada Title
Insurance Company, I took them to my attorney, Mead Dixon, for his approval.
Obviously, we decided to prepare our own Agreement of Sale and I am sending it for the
examination and approval of your buyer. There is no change in any of the conditions of our
telephone agreement, but merely that the conditions are set forth more clearly.
I am sending two copies of this Agreement to Nevada Title Insurance Company. If the
Agreement is acceptable to your buyer, please have him sign and return two copies as soon as
possible. We will then sign one and return it to Nevada Title Company immediately.
If these papers are in order and acceptable to your buyer, we are going to be very anxious
to close this matter as soon as possible.
Sincerely yours,
Wayne McLeod
cc: Nevada Title Insurance Company
118 South Fourth Street
Las Vegas, Nevada
Attention: Evelyn Wilson
Two unsigned copies of the agreement were enclosed. The agreement was between
McLeod and his wife, as sellers, and Pravorne as purchaser, and provided that the sellers
agreed to sell and the purchaser to buy the described real estate for the purchase price of
$70,500, payable $1,000 on the signing of this contract, by cash or check to the order of
Nevada Title Insurance Company, * * * $19,445 by cash or check to the order of Nevada
Title Insurance Company * * * on or before closing, and $50,055 by promissory note of the
Purchaser payable to the order of the Sellers in four (4) equal annual instalments of principal,
plus interest at 6% per annum, such instalments to be payable on or before May 1 of each year
commencing with May 1, 1963, secured by first deed of trust on the above described
property. The contract provided further for the apportionment of taxes and special
assessments; that the closing should take place at the office of Nevada Title Insurance
Company at Las Vegas, and that closing should be effected (a) by depositing such
instruments or funds with the title insurance company as might be necessary to effect the
closing, (b) that the deed be the usual grant, bargain, and sale deed, (c) that the note and deed
of trust be in usual form, (d) that the sellers would furnish a policy of title insurance subject
to certain specified exceptions, (e) the division and charging of fees and expenses according
to the usual practice of the title insurance company. The contract then provided certain
conditions as to brokerage commissions, the resulting situation if the sellers should be unable
to convey good merchantable title, that appropriate instructions should be signed by either
party upon demand of the other and that in the event of conflict between the provisions of
the agreement and the provisions of any escrow instructions, the provisions of the
agreement should prevail.
demand of the other and that in the event of conflict between the provisions of the agreement
and the provisions of any escrow instructions, the provisions of the agreement should prevail.
Pravorne signed the contract of purchase and sale in duplicate and delivered the copies to
the title insurance company. The title insurance company mailed the signed agreement to
McLeod, but stapled to the agreement were three sheets of paper. For the most part these
comprised the regular printed form used by the escrow holder, listing some 20 items
concerning escrow instruments with a space to be filled by a checkmark if any of these items
were required. On the first page there was typed the following: Mr. Gordon Bell asked us to
prepare an amendment pertaining to Release Clause on the deed of trust to be submitted for
your approval and signature. The only items checked in the list of escrow instruments were
Escrow Instructions and Amendment to Escrow Instructions. The next page contained the
following: The following Release clause shall be inserted on the deed of trust in favor of
Seller: Beneficiary herein agrees to execute Request for Partial Reconveyance for parcels
shown on attached plat as follows: This is followed by a provision for the release of parcel 1
as shown on the plat, upon payment of 28 percent of the balance due at the time of said
release; for the release of parcel 2, upon payment of 28 percent; for the release of parcel 3,
upon the payment of 28 percent; and for the release of parcel 4, upon the payment of 16
percent of the balance due under the note and deed of trust.
Both parties moved for summary judgment. The court below denied plaintiff's motion and
granted defendants'. Thereupon plaintiff moved to vacate the judgment, and has appealed
from the order denying his motion, as well as from the judgment.
The case turns upon the question whether the title company's return to the sellers of the
signed contract, accompanied by the notation that Mr. Bell, the buyer's broker, asked the title
company to prepare an amendment relating to the release clause on the deed of trust to be
submitted for your approval and signature" constituted a conditional acceptance, in
effect, a rejection of the offer and the submission of a counteroffer; or whether the
signing and returning of the contract was an unconditional acceptance, resulting in a
binding contract between the parties, with a request for an amendment by the insertion
of the release clauses in the deed of trust being merely a request for an additional
provision for the convenience of the buyer, if approved by the seller, the buyer's
acceptance of the signed contract not being dependent thereon.
to be submitted for your approval and signature constituted a conditional acceptance, in
effect, a rejection of the offer and the submission of a counteroffer; or whether the signing
and returning of the contract was an unconditional acceptance, resulting in a binding contract
between the parties, with a request for an amendment by the insertion of the release clauses in
the deed of trust being merely a request for an additional provision for the convenience of the
buyer, if approved by the seller, the buyer's acceptance of the signed contract not being
dependent thereon.
An acceptance which requests a change or addition to the terms of the offer is not thereby
invalidated unless the acceptance is made to depend on an assent to the changed or added
terms. Restatement, Contracts 62.
In Foster v. West Pub. Co., 77 Okl. 114, 186 P. 1083, 1084, the court said: In the case of
Bleecker v. Miller et al., 40 Okl. 374, 138 Pac. 809, the acceptance was held to be absolute
and unqualified, notwithstanding the accepting party objected to certain provisions of the
offer and expressed the opinion that the offerer should not ask such conditions. This objection
and request was held to be no part of the contract, but a favor asked of the seller, to be
granted or withheld at his option, and in no way invalidating the acceptance. In the case of
Kaw City Mill & Ele. Co. v. Purcell Mill & Ele. Co., 19 Okl. 357, 91 Pac. 1022, it was said:
An offer of sale of personal property and its acceptance must receive a reasonable
construction, and the proposer is bound by its acceptance in that sense. Immaterial variances
between the offer and its acceptance will be disregarded.' It further quoted with approval 6
R.C.L. 609, as follows: From the rule that the acceptance must be unconditional it must not
be inferred that the mere mention in a letter of acceptance of matters upon which the
acceptance of the proposition does not depend prevents the contract from being completed.
There is authority to the effect that, though an acceptance which introduces a new term as part
of the proposed contract is insufficient, the mere addition to the acceptance of a collateral or
immaterial requisition not warranted by the terms of the offer does not prevent the
contract from being completed.
warranted by the terms of the offer does not prevent the contract from being completed.
Although a request for a change or modification of a proposed contract made before an
acceptance thereof amounts to a rejection of it, a mere inquiry as to whether one proposing a
contract will alter or modify its terms, made before acceptance or rejection does not amount
to a rejection. * * *'
For additional authorities see 1 Williston, Contracts 79, and cases cited therein.
[Headnote 1]
We are of the opinion that when appellant signed and returned the agreement he made an
unconditional acceptance which was not made to depend upon McLeod's assent to the
proposed amendment, which was simply a request for an additional benefit which was not an
essential term or condition of his acceptance.
[Headnote 2]
The fact that Mr. and Mrs. McLeod did not sign the original contract before forwarding the
same is not material. Respondent conceded in oral argument that the signed covering letter
above quoted in full was the offer. The question that arises from such situation is whether or
not the seller consented to be bound by the written contract even though he did not sign it.
Commercial Standard Ins. Co. v. Garrett, 10 Cir., 70 F.2d 969, 974; Reno Electrical Works v.
U. S. Fidelity & Guaranty Co., 43 Nev. 191, 194, 183 P. 386, 387; Geary v. Great Atlantic &
Pacific Tea Co., 366 Ill. 625, 10 N.E.2d 350; Bartlett v. Rogers, 103 Cal.App.2d 250, 229
P.2d 434, 437; 1 Corbin, Contracts 31, at 85.
Here McLeod had the contract drawn by his own attorney and he himself mailed it to
Pravorne, stating that he would sign it. The conclusion is clear that he expressed his
unconditional assent thereto.
Concluding as we do that the request for amendment was merely for an additional benefit
if the request should be approved and was not a rejection of the offer, the judgment must be
reversed and a judgment of specific performance entered, and it is so ordered.
The appeal is also from the court's denial of Pravorne's Motion to Set Aside Order for
Summary Judgment or to Grant a New Trial. NRCP 59. Respondents argue that a motion for
a new trial does not lie under the circumstances. In view of the foregoing, however, it is not
necessary to discuss this subject.
Judgment reversed with costs, and remanded with instructions for entry of judgment not
inconsistent with the foregoing opinion.
McNamee, J., and Gabrielli, D. J., concur.
Mr. Justice Thompson being disqualified, the Governor commissioned Honorable John E.
Gabrielli of the Second Judicial District to sit in his place.
____________
79 Nev. 348, 348 (1963) Kime v. Wardman
G. KIME, Appellant, v. HERBERT WARDMAN,
Respondent.
No. 4668
September 5, 1963 384 P.2d 965
On motion to dismiss appeal.
Proceeding to dismiss an appeal from a judgment of the Second Judicial District Court,
Washoe County. The Supreme Court held that the explanation of the appellant, who was
acting in propria persona, that he was busy with other matters and had been unable to obtain
counsel did not excuse lapse of 133 days without his having taken any steps to prepare and
file a record on appeal.
Appeal dismissed.
G. Kime, Appellant in pro. per.
Jack I. McAuliffe, of Reno, for Respondent.
Appeal and Error.
Explanation of layman appealing in propria persona that he was busy with other matters and had been
unable to obtain counsel did not excuse lapse of 133 days without his having taken any steps to prepare and
file a record on appeal, and appeal would be dismissed.
OPINION
Per Curiam:
On April 17, 1963, judgment was entered in the Second Judicial District Court in favor of
Wardman and against Kime, and on April 24, 1963, Kime, in propria persona, filed his notice
of appeal to this court. He had likewise in propria persona tried the case in the district court.
On August 15, 1963, Wardman caused the appeal to be docketed in this court, NRCP
75(j), in order to make a motion for dismissal, and served and filed his motion to dismiss the
appeal for failure to comply with the requirements of Rules 75(a), 75(d), and 73(g) NRCP,
supported by affidavits of the deputy county clerk and the court reporter and a certified copy
of the register of actions in the district court.
In response to the motion to dismiss, Kime still in pro. per. opposed the motion and sought
an order extending his time to file a record on appeal. His affidavit states that he is a layman,
unfamiliar with the intricacies of appellate procedure, that he has been occupied with various
business affairs during the last 60 days, including a very important land transaction, and has
not had the time to devote to this case, and has been unable to procure counsel. He moves for
an extension of time to file the record.
Respondent's motion to dismiss and appellant's motion for extension both stand submitted.
It appears that the court reporter on April 17, 1963, took down an argument on motion
for new trial and on May 2, 1963, transcribed and delivered his transcription thereof.
on May 2, 1963, transcribed and delivered his transcription thereof. It does not appear that the
trial itself was reported.
The deputy county clerk's affidavit dated August 13, 1963, states that she has not
prepared a record * * * because a designation of record has never been filed and, in addition,
she has never been requested to do so.
The district court's power to extend time for filing the record, not exceeding 90 days from
date of filing notice of appeal, has long since expired. NRCP 73(g). No designation of record
was ever served or filed as required by NRCP 75(a). No statement of points on which the
appellant intends to rely on the appeal was ever served as required by NRCP 75(d). As it
would appear that the trial was not reported, apparently the only way of preparing a statement
of the evidence and proceedings would be in the manner provided in NRCP 75(n), but no
steps have been taken by appellant to prepare such statement in the manner provided in said
rule.
Thus it appears that from the date of filing of notice of appeal on April 24, 1963, 133 days
have elapsed without the taking of any steps by appellant to prepare and file the record on
appeal as required by the rules. The only excuse given is that appellant is a layman, acting in
his own person, that he has been busily engaged with other matters, and that he has been
unable to obtain counsel. Such reasons are entirely insufficient. The motion now made for an
extension of time for filing the record is denied. The motion to dismiss the appeal is granted.
____________
79 Nev. 351, 351 (1963) Worth v. Reed
F. E. WORTH, Also known as FRANK E. WORTH, Doing Business as HOLIDAY INN,
Appellant, v. CARL REED, Special Administrator of the Estate of JULIA F. MORRISON,
PAUL G. MORRISON, HELEN ALAN and DONALD V. MORRISON, Respondents.
No. 4613
September 11, 1963 384 P.2d 1017
Judge.
Action for personal injuries sustained by motel guest. The trial court entered judgment for
the plaintiffs, and the defendant appealed. The Supreme Court, Thompson, J., held that
whether motel owner was negligent in permitting water from flooded toilet to remain on floor
where guest fell and in failing to warn guest of its presence was for jury.
Judgment affirmed.
[Rehearing denied October 10, 1963]
Vargas, Dillon & Bartlett and Alex. A. Garroway, of Reno, for Appellant.
Foley Brothers, of Las Vegas, for Respondents.
1. Negligence.
Generally, owner of property owes invitee duty of ordinary care.
2. Negligence.
If peril is hidden, latent or concealed, ordinary care requires property owner having actual or constructive
knowledge of peril to warn invited guest who is without such knowledge.
3. Negligence.
If danger is obvious, ordinary care required of property owner does not require warning since
obviousness serves same purpose.
4. Innkeepers.
Whether motel owner was negligent in permitting water from flooded toilet to remain on floor where
guest fell and in failing to warn guest of its presence was for jury.
79 Nev. 351, 352 (1963) Worth v. Reed
5. Innkeepers.
Whether negligence of motel owner was proximate cause of injuries sustained by guest, who slipped and
fell on wet floor after serviceman had repaired flooding toilet, was for jury.
6. Negligence.
Defendant in personal injury action has burden to establish affirmative defenses of contributory
negligence and voluntary assumption of known risk.
7. Innkeepers.
Whether motel guest, who fell on wet floor after serviceman had repaired flooding toilet in motel room,
was contributorily negligent or voluntarily assumed known risk was for jury.
OPINION
Julia Morrison, an invited guest, slipped and fell in a motel room of the Holiday Inn
owned by the defendant Worth. She was injured. It is claimed that her fall was caused by the
defendant's negligence in permitting water from a flooded toilet to remain on the floor where
she fell, and in failing to warn her of its presence. Sometime later, but before this suit was
commenced, Julia Morrison died from causes unrelated to her fall. Her legal representative
and heirs joined in commencing this action to recover damages for the injury and expense
caused Julia by her fall. NRS 41.100(1). A jury awarded damages in the total sum of $23,490.
Judgment was entered on the verdict. The defendant Worth appeals. He contends that error
occurred when the trial court denied his motions (for directed verdict and, later, for judgment
n.o.v.) premised on the proposition that he was entitled to judgment as a matter of law.
At the time of her fall Julia Morrison was quite old. However, she was competent and
enjoyed good health. She and her 57-year-old son Paul had registered at the Holiday Inn the
day before. The unit which they occupied contained three general adjoining areas referred to
as the bedroom, powder room and bathroom. The toilet bowl, which filled with water and
overflowed, had functioned properly for the Morrisons during the first day of their
occupancy. However, on the morning of the second day, at about 9:00 a.m., Paul flushed
the toilet and it overflowed.
79 Nev. 351, 353 (1963) Worth v. Reed
functioned properly for the Morrisons during the first day of their occupancy. However, on
the morning of the second day, at about 9:00 a.m., Paul flushed the toilet and it overflowed.
Water covered the bathroom and powder room areas. Julia Morrison was in bed. Paul
warned her twice not to use the bathroom and departed to tell the desk clerk what had
occurred. Without delay a maintenance man was sent to the room to fix the toilet. When he
arrived Julia Morrison was still in bed. She remained there while he abolished the clogging in
the pipes which had caused the overflow. While he was doing so, Julia carried on a
conversation with him. When the stoppage was eliminated the maintenance man left the
Morrison unit. Upon leaving the room to fetch mop and bucket, he did not tell Julia that his
work was not completed nor warn her that a danger still existed. He returned within a few
minutes. Upon entering he saw Julia Morrison lying on the powder room floor. She was in
pain. He and a maid assisted Julia to her bed where she remained until taken to the hospital.
No one witnessed the accident. Its occurrence was not explained by Julia because of her
intervening death.
The judgment is attacked on four grounds. It is urged that the defendant was not shown to
have been negligent; that proximate cause was not proven; and that the affirmative defenses
of contributory negligence and assumed risk were each established as a matter of law. We
turn to discuss these matters.
1. Negligence. All parties agree that the risk of harm occasioned by the presence of water
on the floor of the bathroom and powder room was not created by the defendant or his agents.
There is nothing in the record tending to show that its occurrence could reasonably have been
foreseen or anticipated. It just happened. After being notified of the flooding the defendant
acted promptly. A maintenance man was dispatched to the Morrison unit to eliminate the
clogging in the pipes which had caused the overflow, and to clean up the mess. The stoppage
was cleared. The overflowing of the toilet ceased. However, the hazard existing because of
water on the bathroom and powder room floors was not corrected.
79 Nev. 351, 354 (1963) Worth v. Reed
on the bathroom and powder room floors was not corrected. The maintenance man had left
the room and was in the process of fetching a mop and bucket to complete his assigned task
when Julia Morrison presumably stepped on the slick tile floor of the powder room, slipped
and fell. In seeking to support the judgment, plaintiffs contend that it was for the jury to
decide, as a question of fact, whether the defendant acted with ordinary care in correcting the
dangerous condition after learning of its existence. On the other hand, the defendant insists
that, on the facts of this case, reasonable minds could not differ on the issue of due care, and
that the trial judge should have taken the case from the jury.
[Headnotes 1-4]
In general terms, an owner owes an invitee the duty of ordinary care. Nevada T. & W. Co.
v. Peterson, 60 Nev. 90, 99 P.2d 633; Gott v. Johnson, 79 Nev. 330, 383 P.2d 363. Yet the
concept of ordinary care is flexible in application. If a peril is hidden, latent or concealed,
ordinary care requires an owner, with actual or constructive knowledge of the peril, to warn
the invited guest who is without such knowledge. Nevada T. & W. Co. v. Peterson, supra. On
the other hand, if the danger is obvious, ordinary care does not require a warning from the
owner because obviousness serves the same purpose. Gunlock v. New Frontier Hotel, 78
Nev. 182, 370 P.2d 682. In Gunlock the object over which plaintiff fell (a 30-foot long
planter box in a hotel lobby) was obvious because of its size. A summary judgment for the
defendant was affirmed on the flat proposition that an owner's duty of care does not extend to
an invitee who incurs injury from an obvious danger. There the peril was deemed obvious
as a matter of law. Here, however, the peril (water on a tiled floor) cannot, in good sense, be
deemed obvious as a matter of law. Water is a transparent substance. The record does not
disclose the quantity of water on the powder room floor in the area of Julia's fall. One may
easily fail to notice water on a tiled floor. Though there is much in the record from which a
jury could have concluded that the hazard was known or so apparent to Julia that she could
reasonably be expected to discover it {the warnings from her son not to use the
bathroom, which warnings, however, did not tell her of the peril in the powder room; the
fact that a repair man was called; and the presence of water in the area of her fall was
seen by her son and the maintenance man), it seems to us that the jury was equally free
to characterize the peril as one that was neither apparent nor obvious.
79 Nev. 351, 355 (1963) Worth v. Reed
hazard was known or so apparent to Julia that she could reasonably be expected to discover it
(the warnings from her son not to use the bathroom, which warnings, however, did not tell
her of the peril in the powder room; the fact that a repair man was called; and the presence of
water in the area of her fall was seen by her son and the maintenance man), it seems to us that
the jury was equally free to characterize the peril as one that was neither apparent nor
obvious. The issue was one of fact, rather than law. Cf. Gott v. Johnson, supra. Thus the
failure of the maintenance man, when he left the room to get mop and bucket, to warn Julia
that a danger still existed, could reasonably have been considered by the jury to be a breach of
the defendant's duty of ordinary care. Cf. Nevada T. & W. Co. v. Peterson, supra.
[Headnote 5]
2. Proximate cause. In Rickard v. City of Reno, 71 Nev. 266, 288 P.2d 209, this court
affirmed a Rule 41(b) dismissal because of the lack of proof of the cause of plaintiff's fall. In
doing so it stated: It is undoubtedly true that an inference of proximate cause may be drawn
from the proved facts. Here there is no proof that plaintiff's feet slipped, nor indeed that the
sidewalk was slippery at the point where she fell.
Defendant tells us that the proof in this case is equally deficient. We cannot agree. Though
the proof is scanty, we are not persuaded that it is absent. Julia was found lying on the tiled
floor of the powder room. There is much evidence that the floor was covered with water and
was slick. Hearsay was received to the effect that she had slipped on the powder room floor.
1
Accordingly we must conclude that there is some evidence from which the jury could
properly infer that Julia slipped and fell because of the water on the tiled floor. NRS 52.020.
The missing facts in Rickard, supra, are present here, i.e., that Julia slipped and that the floor
was slippery at the point where she fell. This claim of error is without validity.
____________________

1
Defense counsel sought to strike the hearsay. His motion was denied. The court's ruling is not assigned as
error on appeal.
79 Nev. 351, 356 (1963) Worth v. Reed
[Headnotes 6, 7]
3. The affirmative defenses. It is the defendant's burden to establish the affirmative
defenses of contributory negligence and the voluntary assumption of a known risk. In each
instance, an evaluation of Julia Morrison's conduct is required. Yet here the record does not
disclose what she did, or failed to do. Her slip and fall was neither witnessed nor directly
explained. The manner of its occurrence is left to inference. It seems to us that the jury could
permissibly infer either that Julia did not know of the danger in the powder room or that if
she did know of it she encountered it in the exercise of due care. A slip and fall, standing
alone, does not prove either that she was, or was not, negligent. Perhaps Julia experienced a
pressing need to use the toilet. In such event she would have been justified in carefully
encountering the peril, without depriving herself of relief for injuries received. Of course,
other inferences, adverse to Julia, could permissibly have been made. As reasonable minds
could draw conflicting inferences from the known facts, the issues were for jury
determination. Accordingly, we find no merit in appellant's claim that the affirmative
defenses were shown to have been established as a matter of law.
Affirmed.
____________
79 Nev. 356, 356 (1963) Boyd v. Pernicano
CAL BOYD and GERTRUDE BOYD, Appellants, v.
FRANK JOSEPH PERNICANO, Respondent.
No. 4609
September 27, 1963 385 P.2d 342
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Action arising out of rear end automobile collision. From an adverse judgment of the trial
court, the plaintiffs appealed. The Supreme Court, Thompson, J., held that defense counsel's
suggestion, made during summation, that jury trade places with defendant in deciding
case did not affect a substantial right of plaintiffs and was harmless error under the
circumstances.
that defense counsel's suggestion, made during summation, that jury trade places with
defendant in deciding case did not affect a substantial right of plaintiffs and was harmless
error under the circumstances.
Judgment affirmed.
Stanley W. Pierce and Don L. Griffith, of Las Vegas, for Appellants.
Singleton & DeLanoy and Rex A. Jemison, of Las Vegas, for Respondent.
1. Trial.
Generally, appellate courts declare error when, during summation, trial counsel has urged jurors to place
themselves in position of one of litigants, or to allow such recovery as they would wish if in the same
position.
If objection to erroneous argument is not made, doctrine of waiver will sometimes preclude appellate
review.
3. Trial.
If objection is made to erroneous argument and is sustained by court, and the jury is properly
admonished, the error is usually deemed cured.
Defense counsel's suggesting, made during summation, that jury trade places with defendant in deciding
case did not affect a substantial right of plaintiffs and was harmless error under the circumstances. NRCP
61.
In determining whether an error was harmless, it is duty of Supreme Court to search the record as a whole
and exercise a judicial discretion. NRCP 61.
Supreme Court does not presume prejudice from occurrence of error in a civil case. NRCP 61.
OPINION
Cal and Gertrude Boyd brought suit against Pernicano to recover damages sustained in a
rear end collision. The jury found for Pernicano. The Boyds' appeal, assigning as error
defense counsel's suggestion, made during summation, that the jurors "trade places with
Mr.
during summation, that the jurors trade places with Mr. Pernicano in deciding the case.
1

[Headnotes 1-3]
As a general proposition appellate courts declare error when, during summation, trial
counsel has urged the jurors to place themselves in the position of one of the litigants, or to
allow such recovery as they would wish if in the same position. Annot., 70 A.L.R.2d 935.
Jurors should consider cases objectively. If objection to the erroneous argument is not made,
the doctrine of waiver will sometimes preclude appellate review. If objection is made,
sustained by the court, and the jury properly admonished, the error is usually (but not always)
deemed cured. Here, objection was timely made (though only by counsel's statement I
object, without stating the grounds of such objection) and overruled. Hence, neither the
question of waiver, nor the problem of the curative effect of court admonition to disregard, is
involved. Thus, we are squarely faced with the task of deciding whether the error is harmless
within NRCP 61, or prejudicial.
2

[Headnotes 4-6]
Defense counsel's statement, made near the end of his jury summation, was: There is
something else to remember and I think this is extremely important, that tomorrow one of you
may be going down on Las Vegas Boulevard and you may be stopped and somebody else may
run into the back end of you and you, in turn, to somebody else, and if it doesn't happen to
you it may happen to some members of your family or children, and don't forget that very
simply you could trade places with Mr.
____________________

1
Appellants also claim that error occurred when defense counsel, during summation, mentioned a fact not in
evidence. When objection was made, the court expressed agreement with plaintiffs' counsel that the mentioned
fact was not in evidence. The matter was dropped. It seems to us that the court's action took care of the situation.

2
Rule 61. Harmless Error. 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.
somebody else, and if it doesn't happen to you it may happen to some members of your family
or children, and don't forget that very simply you could trade places with Mr. Pernicano.
Certainly, we do not know whether the trial result was influenced by such statement. There is
no method by which we can see the case through the jurors' eyes, nor does the harmless
error rule contemplate that we attempt to do so. Rather, it is our duty to search the record as
a whole, and exercise a judicial discretion in deciding whether the error is harmless or
reversible in nature. Lee v. Baker, 77 Nev. 462, 366 P.2d 513. We do not presume prejudice
from the occurrence of error in a civil case. Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239. If
there appears to be a sharp conflict in the evidence upon essential issues the error is treated as
having more significance in the jury's decisional process than if the case is a one-sided affair.
3

The accident giving birth to this case happened on a rainy night in February on Las Vegas
Boulevard South. It involved four cars in line. Mr. and Mrs. Martin were passengers in the car
first in line which was stopped at an intersection waiting for traffic to clear. Cal and Gertrude
Boyd (plaintiffs) occupied the car immediately behind the Martins, and had stopped.
Pernicano (the defendant) was at the wheel of the car directly behind the Boyds, and Herbert
Hull drove the car directly behind Pernicano. The Martins, the Boyds, Pernicano and Hull
testified at the trial. It was Pernicano's defense that he had stopped behind Boyd, and that Hull
drove into him, causing him to ram the Boyds and they, in turn, to hit the car first in line. He
so testified. Hull corroborated him fully. The Martins stated that the Boyd and Pernicano cars
were stopped behind them before the accident occurred.
____________________

3
In Lee v. Baker, supra, the error (reception, without foundation, of a T-intersection diagram purporting to
portray the collision) was deemed prejudicial primarily because of a sharp conflict in the evidence upon the
issues of negligence and proximate cause. In Pfister v. Shelton, supra, the error (improper jury instruction) was
considered harmless because the record on appeal did not contain a transcript of the trial, and this court,
therefore, could not determine the existence or degree of conflict in the evidence upon essential issues. See also
Eldorado Club, Inc. v. Graff, 78 Nev. 507, 377 P.2d 174.
accident occurred. There is no direct evidence to contradict this version of the series of
collisions. No witness was offered to testify that Pernicano's car, under its own power, ran
into the rear of the Boyd car. Solely because of Gertrude Boyd's testimony that she felt two
impacts, she and her husband ask us to infer that two series of collisions happened: first, that
Pernicano, under his own power, struck them and they, in turn, the car first in line, and a
moment later Hull came along striking Pernicano who again rammed the Boyds, who hit the
car first in line a second time. Yet, the Martins in the first car, did not feel two impacts.
Perhaps the sensation of Gertrude Boyd is explained by the jolt from the rear and the
subsequent collision of her car with the car in front. This indeed would more reasonably
follow from Mrs. Boyd's testimony of the injury received by her when she was thrown
forward against the dash. This could not result from the fact that her car was struck from
behind, which would tend to throw her backwards against the seat. Being thrown forward
would result only from being stopped suddenly, such as by her car striking the car in front. In
any event, it is apparent that her supposition as to what occurred has little significance in
view of the overwhelming testimony to the contrary. Cf. Klotz v. Sears, Roebuck & Co., 7
Cir., 267 F.2d 53, heavily relied on by appellants, where the court reversed because of
improper jury argument, taking care, however, to note that the question of liability was close
on the facts. The case before us is quite different. Accordingly, we are not persuaded that
defense counsel's error during jury argument affected a substantial right of the plaintiffs. It
was harmless.
Affirmed.
____________
79 Nev. 361, 361 (1963) Tracy v. Pollock
HEBER M. TRACY, Appellant, v. HARRY M.
POLLOCK, Respondent.
No. 4597
September 30, 1963 385 P.2d 340
Action against motorist for injuries sustained when the motorist's automobile struck an
automobile which was stopped, causing it to overturn and hit plaintiff. The trial court
rendered judgment for plaintiff, and defendant appealed. The Supreme Court, McNamee, J.,
held that declaration of defendant to eye doctor that he had been slowly losing vision over last
year to 16 months was relevant to issue of negligence at time of his automobile accident and
admissible as admission of party, creating factual question as to whether he had impaired
vision at time of accident, and, if so, whether he had knowledge thereof, and that the evidence
permitted the jury to find that motorist was not performing duties required of him under range
of vision rule when, at approximately 6:30 p.m. on March 21, he drove his automobile on
highway with dim lights and it struck an automobile which had been brought to a stop.
Affirmed.
[Rehearing denied October 28, 1963]
Vargas, Dillon & Bartlett, and James P. Logan, of Reno, for Appellant.
Loyal Robert Hibbs, of Reno, for Respondent.
Any error in allowing to remain in record testimony of defendant motorist that accident affected his
ability to see at distance and that he had first noticed change in vision three months after accident was
cured by testimony of plaintiff's witness, a doctor who testified that defendant had told him that he had
been refused driver's license about four months after accident because of lack of visual acuity and admitted
he had been losing vision for last 16 months.
2. Evidence.
Declaration of defendant to eye doctor that he had been slowly losing vision over last year to 16 months
was relevant to issue of negligence at time of his automobile accident and admissible as admission of party,
creating factual question as to whether he had impaired vision at time of accident and, if so, whether he had
knowledge thereof.
3. Automobiles.
Court properly instructed jury regarding range of vision stating that duty of motorist during on highway
at nighttime is to be vigilant at all times and to drive at such speed and to keep vehicle under such control
that, to avoid collision, he can stop within distance illuminated by lights.
4. Automobiles.
Evidence permitted jury to find that motorist was not performing duties required of him under range of
vision rule when, at approximately 6:30 p.m. on March 21, he drove his automobile on highway with dim
lights and it struck an automobile which had been brought to a stop.
OPINION
On March 21, 1961 one Tyler was driving his Falcon from Reno to Tonopah. En route he
picked up respondent Pollock, a hitchhiker. Fourteen miles south of Fallon the motor stopped
because the car had overheated, and the car coasted to a stop in the right-hand lane of the
highway. Both Tyler and Pollock got out of the car. Appellant Tracy, 70 years of age, and his
wife approached from the rear. Tracy saw the stalled vehicle when he was 100 feet away. He
applied his brakes and swerved to the left, but struck the Tyler car with the right front of his
car. The collision caused the Tyler car to overturn and hit Pollock, resulting in serious injuries
to Pollock. The accident happened approximately 6:30 p.m. Tracy had his lights on dim at the
time. There was a conflict in the evidence whether Tyler had his lights on. A disinterested
witness, Clyde Sam, who was driving north, testified that he saw the Tracy car approaching at
an estimated speed of between sixty and eighty miles an hour. Tracy estimated his speed to be
approximately fifty miles an hour, which he considered a safe driving speed for him at the
time.
The jury's verdict was for Pollock. This is an appeal from the judgment based on the
verdict, from the order denying appellant's motion to set aside the verdict and judgment, from
the order denying the motion for a new trial, and from the order denying the motion for
summary judgment.
The two errors assigned are:
1. The trial court erred in admitting evidence of Tracy's diminished vision, discovered
some months after the accident.
2. The trial court erred in instructing the jury on the range of vision rule.
During his examination as an adverse witness Tracy testified that at the time of the
accident he was not wearing glasses. He had had his eyes examined in 1956 and had taken a
driver's test in 1959. Prior to the accident he wore glasses only when he worked in a carpenter
shop and they were safety glasses. When asked if he had defective eyesight after the accident
the objection of his counsel to the question was sustained. He testified that on the day of the
accident his eyesight was not defective. Without objection Tracy testified that the accident
affected his ability to see at a distance, and that at the time of the trial he was required to wear
glasses when driving his car. He first noticed a change about three months after the accident.
His counsels' motion to strike this testimony was denied. Apparently, it is the denial of this
motion to strike which furnishes the basis of appellant's first assignment of error.
[Headnotes 1, 2]
If the court erred in allowing such testimony to remain in the record, and in this connection
it must be noted that no objection to this later line of questioning was made until after the
propounded questions had been answered, the error, if any, was cured by the testimony of Dr.
Clarke, a witness on behalf of respondent. He testified that when he examined Tracy's eyes on
March 27, 1962 Tracy stated that he had been refused a driver's license in July 1961 (about
four months after the accident), because his visual acuity was not adequate and Tracy then
admitted that he had slowly been losing vision over the last year to 16 months." Dr. Clarke
further testified that Tracy's diminished vision was attributable to senile cataracts and in
his opinion Tracy had faulty vision at the time of the accident.
vision over the last year to 16 months. Dr. Clarke further testified that Tracy's diminished
vision was attributable to senile cataracts and in his opinion Tracy had faulty vision at the
time of the accident. Appellant's counsel concede that if appellant had knowledge that his
eyesight was defective prior to the accident, the jury properly could find that Tracy was
negligent. This declaration by Tracy, being relevant to the issue of negligence and admissible
as an admission of a party, created a factual question whether Tracy had impaired vision at
the time of the accident and, if so, whether he had knowledge thereof. Valdin v. Holteen, 199
Or. 134, 260 P.2d 504; Bonebrake v. McCormick, 35 Cal.2d 16, 215 P.2d 728.
[Headnote 3]
With respect to the second assigned error we conclude that the trial court properly
instructed the jury regarding the range of vision rule as follows:
It is the duty of a driver of a motor vehicle using a public highway in the nighttime to be
vigilant at all times and to drive at such rate of speed and to keep the vehicle under such
control that, to avoid a collision, he can stop within the distance the highway is illuminated by
its lights.
[Headnote 4]
In Rocky Mountain Produce Trucking Co. v. Johnson, 78 Nev. 44, 369 P.2d 198, where
the facts were essentially the same as here, the giving of the identical instruction was
approved by this court. Although in this case there was a gradual curve in the road, and none
in Rocky Mountain, appellant testified that he could see around the curve for approximately
five miles
1
and that the accident occurred between 500 and 600 feet beyond the curve. The
lower court did not rule as a matter of law that appellant was negligent but submitted that
issue to the jury.
____________________

1
The distance of one's range of vision over Nevada deserts, because of the unobstructed vastness, may be
difficult for many to comprehend.
to the jury. The jury properly could find under the conflicting facts submitted to it that Tracy
at the time of the accident was not performing the duties required of him.
The judgment and orders appealed from are affirmed.
____________
79 Nev. 365, 365 (1963) Pace v. Malonee
C. M. PACE, Appellant, v. RUDY
MALONEE, Respondent.
No. 4611
October 7, 1963 385 P.2d 353
Judge.
Action by judgment debtor to quiet title to realty sold under execution. The trial court
ordered that sheriff's deed to purchaser at execution sale be set aside and that certificate of
redemption be granted judgment debtor, and the purchaser at execution sale appealed. The
Supreme Court, Thompson, J., held that since part of amount required to redeem the realty
had not been paid until 3 days after statutory redemption period had expired, setting aside
sheriff's deed and granting redemption certificate constituted error in absence of pleading or
proof of equitable grounds for granting redemption by court decree after expiration of
redemption period.
Judgment reversed.
[Rehearing denied December 2, 1963]
Foley Brothers and Ralph Denton, of Las Vegas, for Appellant.
Michael J. Wendall, of Las Vegas, for Respondent.
1. Execution.
Generally, statutory redemption cannot be allowed after expiration of period prescribed by statute. NRS
21.210.
2. Execution.
In special circumstances, redemption may be permitted in independent action after statutory period has
run if equitable grounds exist to support such relief; such redemption is authorized by decree of court and
does not find its support in statute, but in decree and is governed thereby. NRS 21.210.
3. Execution.
Where part of amount required to redeem realty sold under execution was not paid until 3 days after
statutory redemption period had expired, ordering that sheriff's deed to purchaser at execution sale be set
aside and that redemption certificate be granted judgment debtor was error in absence of pleading or proof
of equitable grounds authorizing redemption by court decree after expiration of redemption period, though
amount needed to redeem, as erroneously computed by sheriff, was deposited with him within redemption
period but judgment debtor's agent was thereafter notified of deficiency in time to pay additional amount
but failed to do so. NRS 21.150, 21.210.
OPINION
This case is here on appeal from a judgment entered in a quiet title action. Malonee, a
judgment debtor whose real property was sold under execution to Pace, the highest bidder
(NRS 21.150), claimed that he had redeemed it in the manner and within the time required by
statute. Pace defended below, asserting that Malonee had neither tendered nor paid the full
amount required for redemption within one year after the execution sale (NRS 21.210), and
that Malonee, therefore, had lost his statutory right of redemption. After trial the district court
found for Malonee. It ordered that the sheriff's deed to Pace be set aside and that a certificate
of redemption be granted Malonee upon payment of $3,808, the amount necessary for
redemption. However, in doing so, it specifically found that $133.78 of the total sum needed
to redeem was not delivered by Malonee to the sheriff until three days after the redemption
period had run. Because of this fact the appellant Pace insists that the judgment was in error.
We agree.
[Headnotes 1, 2]
As a general rule a statutory redemption cannot be allowed after the expiration of the
period permitted therefor by statute. Bunting v. Haskell, 152 Cal. 426, 93 P. 110; cf. Daly v.
Lahontan Mines Co., 39 Nev. 14, 23, 151 P. 514, 516, 158 P. 285. However, in special
circumstances, an independent action may permit redemption after the statutory period has
run if equitable grounds exist to support the relief requested. Graffam v. Burgess, 117 U.S.
180, 6 S.Ct. 686, 29 L.Ed. 839 (where the court found a design to mislead the complainant
and lull her into security and thus prevent her from redeeming within the time prescribed by
law); Benson v. Bunting, 127 Cal. 532, 59 P. 991 (mutual mistake as to the time allowed for
redemption); Smith v. Schuler-Knox Co., 85 Cal.App.2d 96, 192 P.2d 34 (where court
redemption was denied because, inter alia, the mistake was not mutual). In such case the
redemption is authorized by decree of court and does not find its support in the provisions of
the statute, but in the decree, and is governed thereby. Bunting v. Haskell, supra.
[Headnote 3]
In the present case Malonee, the plaintiff, made no claim by pleading or subsequent proof
that his right to redeem during the statutory period was prevented by fraud, mistake, or any
other circumstance calling for equitable intervention. To the contrary. His complaint alleged,
in effect, that he had exercised his right of redemption in the manner and within the time
required by statute. He offered evidence that the full amount of money needed for redemption
had, in fact, been deposited with the sheriff before the one-year redemption period had run.
This evidence, however, was disputed. A record of the sheriff's office indicated that $133.78
of the total sum needed for redemption was received three days late. The trial judge chose to
accept the sheriff's record. There is nothing in the record tending to prove that Pace, by word
or conduct, caused Malonee to sleep on his rights. They did not become acquainted until this
lawsuit occurred. Thus the record shows, first, that the lower court found that the statutory
requirements for redemption had not been met and, second, that equitable grounds
authorizing a redemption by court decree do not exist.
shows, first, that the lower court found that the statutory requirements for redemption had not
been met and, second, that equitable grounds authorizing a redemption by court decree do not
exist. In such circumstances the judgment entered was wrong.
In seeking to sustain the judgment Malonee directs our attention to Walsh v. Erwin, 9 Cir.,
115 F. 531, where, under quite similar circumstances, a court redemption was permitted.
There, as here, an error had occurred in computing the total amount needed to effectuate
redemption. There, as here, the judgment debtor acted in good faith in paying the sum thus
ascertained. But in Walsh v. Erwin the computation of the sum due was made by the sheriff
with the assistance of the attorney representing the purchaser at execution sale. In our view
that circumstance allowed equity to relieve the judgment debtor from the consequences of his
innocent mistake, for the purchaser through his agent had, in effect, misled the judgment
debtor into believing that payment of the computed amount would satisfy the statute. Such a
circumstance is absent from the record in this case. Here the sheriff computed the amount due
and notified Malonee's agent. That sum was paid forthwith. Later, during the same day, the
sheriff notified the agent that the additional sum of $133.78 was required. That sum could
have been paid before the statutory redemption period ran out. It was not. In these
circumstances we do not believe that Walsh v. Erwin supports the respondent here.
Reversed.
____________
79 Nev. 369, 369 (1963) City of Reno v. Van Ermen
THE CITY OF RENO, a Municipal Corporation, Appellant, v. J. W. VAN ERMEN,
Individually and as Guardian Ad Litem for JOAN VAN ERMEN, a Minor, Respondent.
No. 4612
October 7, 1963 385 P.2d 345
Appeal from the Second Judicial District Court, Washoe County; Clel Georgetta, Judge.
Action against a city for injuries sustained by a passenger when automobile collided with a
barricade which had been erected by city across a dead end road. The trial court after a verdict
for city awarded plaintiff a new trial and city appealed. The Supreme Court, McNamee, J.,
held that gross negligence of host motorist as to speed, lookout, management and control, in
proceeding down a dead end municipal street at a minimum of 15 miles per hour over the
posted speed limit and in colliding with a barrier which had been erected at the end of the
street was sole proximate cause of injuries sustained by a passenger in motorist's automobile,
and, under the circumstances, city could not be considered negligent in regard to erection of
the barricade.
Reversed.
Vargas, Dillon & Bartlett, and Alex. A. Garroway, of Reno, for Appellant.
Peter Echeverria, of Reno, for Respondent.
On appeal from grant of a new trial on ground of insufficiency of the evidence, evidence must be
scrutinized to ascertain whether it was of such a nature that in setting aside the verdict, trial court abused its
discretion.
Generally, a municipal corporation must exercise ordinary care to keep its streets in a reasonably safe
condition for ordinary use by the public, but it is not required to keep its streets in a condition that protects
users from a use that is not ordinary.
Granting a new trial in a negligence action brought against city for injuries sustained by automobile
passenger would be treated as a ruling on a question of law and correctness thereof would be determined
independently of judgment of the trial court upon review, where it appeared from uncontroverted facts that
proximate cause of the accident was gross negligence of host driver.
4. Automobiles.
Gross negligence of host motorist is to speed, lookout, management and control, in proceeding down a
dead end municipal street at a minimum of 15 miles per hour over the posted speed limit and in colliding
with a barrier which had been erected at the end of the street was sole proximate cause of injuries sustained
by a passenger in motorist's automobile, and, under the circumstances, city could not be considered
negligent in regard to erection of the barricade.
OPINION
In this case the City is charged with maintaining in a negligent, reckless and careless
manner Airport Road in the City of Reno in that it erected and raised a barricade on the road
without adequate warnings, thereby creating a hazard to vehicles; that on April 9, 1960, as a
result of such negligence, a Mercury sedan driven by Gary Cooper, in which Joan Van Ermen
was a passenger, did strike said barrier with resulting injuries to Joan Van Ermen.
The case was tried before a jury. After all the evidence had been introduced by both sides
the City moved for a directed verdict, which motion was denied. The case was submitted to
the jury which brought in a verdict for the City. Judgment was entered upon said verdict.
Thereafter plaintiff's motion for a new trial was granted. The trial court's formal findings of
fact recite:
1. There was a manifest disregard by the jury of the court's instructions upon the law.
2. The evidence is insufficient to justify the verdict and clearly preponderates against the
verdict.
3. The verdict is against the law.
4. That upon all of the facts and circumstances of this case, the court, after hearing the
trial, reviewing the exhibits and considering all of the evidence is clearly satisfied that an
injustice has been done and that to allow the verdict and judgment to stand will result in a
miscarriage of justice.
1

Thereupon, the lower court set aside the verdict, vacated the judgment, and ordered a new
trial.
Appeal is from the order granting the motion to set aside the verdict and judgment and for
new trial.
On this appeal we are in no manner concerned with the medical testimony or the extent of
the plaintiff's injuries. We are concerned only with evidence pertaining to the negligence of
the City and the proximate cause of the accident. A review of the entire evidence pertaining to
negligence and proximate cause is therefore required.
The following evidence is undisputed:
At about 7:15 p.m., on April 9, 1960, Gary Cooper, age 22, and Joan Van Ermen, age 17,
left Joan's home and drove in his Mercury easterly on Airport Road from Kietzke Lane
toward the airport area and crashed into the earth and asphalt debris barrier, going through
and over it, coming to a stop about twenty feet away. He was killed and Joan was severely
injured. In hitting and going over the barrier the vehicle caused a break in the center of the
barrier and scattered debris approximately 100 feet eastward. Joan remembered nothing of the
accident. Prior to September 26, 1959 the Reno Municipal Airport buildings were located at
the eastern end of Airport Road where the road terminated and did not connect with any other
public thoroughfare. On September 26, 1959 the buildings were abandoned because new
airport terminal facilities north of the old site were put to use and the old buildings razed in
November 1959. Thereafter there was no need for continued use of that end of Airport Road.
Nevertheless, automobiles frequently were driven to the end of the road and onto the landing
field creating a hazard to planes.
____________________

1
This is not one of the statutory grounds for granting a new trial.
planes. In an endeavor to stop such practice, wooden portable barriers were placed across the
road and a heavy wire cable joined to them. Burning smudge pots were placed nearby. These
were not effective to stop the practice of automobiles going upon the landing field. In March
1960 a permanent barrier was erected consisting of dirt and chunks of asphalt paving. The
barrier was 30 feet long all the way across the road, 10 feet thick at the bottom, about 6 feet
high, and was located some 700 feet west from the end of the road which terminated at the
edge of the landing field. Three pieces of pipe were inserted vertically in the barrier anchored
in concrete, one at each end and the third in the center, to each of which was attached a metal
reflector with an additional bullseye on the center pipe. The reflectors were orange or amber
in color and could be seen 300 to 500 feet away. The majority of installations for deadend
streets in Reno were the same as that on Airport Road. Beyond the barrier eastward there
were some lights on the landing field runways, both to the left and right of the reflectors on
the barrier. East of Kietzke Lane and some distance west of the barrier the City had erected at
different locations two road signs of standard size, one stating NOT A THROUGH
STREET, and the other, DEAD END STREET. The road also was visibly posted with at
least one 35-mile per hour speed limit sign, which was the speed limit in effect on that road at
that time. Joan Van Ermen knew at the time of the accident that the Airport Road had a
maximum 35-mile per hour speed limit and also knew that the Airport Road was not a
through street.
Joe Hicks, called as an adverse witness on behalf of the plaintiff, testified that he was the
Airport Manager for the City of Reno; that after dark, one could see the posted signs at a
distance of 200 feet without difficulty, and that the reflectors on the metal pipes, as well as
the red bullseye on the center pipe, would loom up in the headlights of an oncoming car when
it was 400 to 500 feet away. In driving down Airport Road, Hicks testified he had no
difficulty in distinguishing the reflectors on the barricade from the runway lights on the
airfield.
Robert E. Callahan, a witness for the plaintiff, testified that he was Street Supervisor for
the City of Reno at the time of the accident; that as one drives down Airport Road the runway
lights on the north-south runway would be 35 feet to the right and 90 feet to the left from the
center line of an elongation of Airport Road, and would not face the road toward the west.
Roger Newton, a witness for the plaintiff, testified that he visited the scene of the accident
on April 10, 1960, at 10:00 p.m., and as he traveled easterly on Airport Road he could see the
clearance lights on the runway approximately from where Neil Road entered Airport Road;
that the reflecting lights on the iron posts that were on the barricade appeared to be on
approximately a horizontal line with the runway lights; that he could observe three red lights
at the easterly portion of the runway; that he could see the sign, NOT A THROUGH
STREET, 200 feet west of it; that it was clearly visible; and that he could see the DEAD
END street sign at a distance of 200 feet. He was specifically watching for the reflectors on
the barricade and saw them 300 to 350 feet away; that when he got approximately 300 feet
from the barrier he could clearly see the position of the runway lights and the reflection of the
lights of the barrier, but further than 300 feet he had difficulty determining the relationship
between the lights; and that the runway lights were 4,000 to 5,000 feet beyond the barrier.
Margie Warner, a witness on behalf of plaintiff, testified that about two weeks prior to
April 9, 1960, at dusk, she went east on Airport Road, and as she was driving along without
her lights on, pointing out to her passenger where the airport buildings had been, all of a
sudden this barricade was in front of me. She didn't notice any warning signs as she
approached. She was driving 15 miles an hour and was within 15 feet of the barrier before she
saw it.
Carl Harris, a witness on behalf of the plaintiff, testified that when he heard of the accident
he was at the Airport Bar, and proceeded to Airport Road, going probably 45 miles an hour.
He didn't recall seeing any warning signs. The first lights he saw were the tail lights of the
car involved in the accident.
lights of the car involved in the accident. They were out, but his lights caused a reflection. He
did not see the reflectors on the barricade until he came to a halt. He received no warning
from the reflectors on the posts at all because they were too high for my lights to strike. I had
my lights on low beam. He applied his brakes. His car skidded sideways into a sudden stop.
There were lights on the immediate edge of the runway which he could see as he went out on
Airport Road. He was 70 to 80 feet from the barricade when he saw it and applied his brakes.
After the plaintiff rested, the defendant without objection was permitted to file an
amendment to his answer which set out the following two sections of the Reno Municipal
Code.
Section 10-56 provides:
Reckless Driving. It shall be unlawful for any person to drive or operate a vehicle of any
kind or character in a reckless manner on any street, or highway or alley; or in other than a
careful or prudent manner; or at a rate of speed greater than is reasonable and proper, having
due regard for the traffic on, and the surface and width of the street or highway; or at such a
rate of speed as to endanger the life, limb or property of any person; provided that the speed
of the vehicle shall not exceed that provided in Article VI of this Chapter; and provided
further that the mere fact that a vehicle is operated within the speed restrictions contained in
Article VI of this Chapter will not constitute prima facie evidence that said vehicle was
operated in a lawful manner.
Section 10-57 provides:
Restrictions as to Speed.
(a) Basic Rule. No person shall drive a vehicle upon a street or highway in violation of
the provisions of Section 10-56 of this Chapter.
(b) Indication of Maximum Speeds. No person shall drive a vehicle upon a street or
highway in excess of that indicated as follows:
(4) 35 miles per hour.
(4a) Upon any street or highway marked and signed by the Chief of Police, with the
approval of the City Council, when the marking and signing indicate the allowance of such
speed.
George Barnes, a witness for the defendant, testified that he was affiliated with the
University of Nevada as a professor of physics. After qualifying as an expert, he stated that a
car traveling 35 miles an hour in and around Reno would travel 57 feet when the brakes were
applied, or 106.4 feet between the initial reaction and the application of the brakes. During
the 57 feet the car would be skidding. At 60 miles an hour the car would skid approximately
200 feet and the reaction distance before application of the brakes would be 66 feet. At 70
miles an hour the reaction distance would be 76.9 feet and the braking distance 260 feet.
After viewing the exhibits showing the automobile and the barrier after the accident he
testified that the car was traveling at least 50 miles per hour at the time it collided with the
barricade.
Edward Fogarty, a witness on behalf of the defendant, testified that he and his wife
frequently went out on Airport Road and parked near the barrier to take their dog out walking.
On the night of the accident after walking the dog they had just gotten back into their car
which was parked on the north side of Airport Road in front of the barrier facing west with
his lights on low beam when the Cooper car went through the barricade. He first saw the
Cooper car when it crossed the Neil Road intersection and paid little attention to it until it
was 200 to 300 feet away. He estimated the speed of the Cooper car at the time it hit the
barrier to be 70 to 80 miles an hour. It did not slow up nor were the brakes applied. It did not
vary its course or slow down at all before hitting the barricade. He did not remember seeing
any red bullseye reflector on a pole, but he did recall the orange reflectors on the poles. In
going east on Airport Road he saw the sign NOT A THROUGH STREET at the Neil Road
intersection, but he did not remember seeing a sign reading "DEAD END STREET."
reading DEAD END STREET. In going out on Airport Road he could see, over the barrier,
the landing lights on the field right behind the end of the road there quite a ways beyond the
barrier. In exercising his dog he often saw cars drive up to the barrier, turn around, and go
back. He never saw anyone come up to the barrier and suddenly apply his brakes either during
the daytime or at night.
Richard Maxwell, a witness for the defendant, testified that he was the Air Traffic
Controller on the night of the accident working at the airport control tower. He noticed a
vehicle coming east on Airport Road and watched it while it traveled approximately a half
mile. I noticed the lights because they were much faster than the normal car. He estimated
the speed of the vehicle between 70 and 80 miles per hour. He said to his companion in the
tower, Hey, Pete, look, it's going to hit it. When it got to the barrier the lights disappeared
and he saw a cloud of dust or smoke. The car did not slow down prior to hitting the barrier.
After the impact he went to the place where the car had come to a stop. There were lights on
the runway, the emphasis of their direction being towards the runway. He had seen another
car hit the wooden barricade sometime before.
J. W. Van Ermen was called as an adverse witness by the defendant. He admitted that in
instituting this suit he had also sued the administrator of Gary Cooper and had alleged in the
original complaint: * * * and that GARY WILBUR COOPER was driving the 1957 Mercury
sedan forward in a reckless, careless, wrongful and grossly negligent manner; that as a direct
and proximate result of the recklessness, carelessness, wrongful, grossly negligent and
unlawful conduct of GARY WILBUR COOPER, the said 1957 Mercury sedan struck the
barricade which had been placed across the said road; that as a direct and proximate result of
the striking Joan Van Ermen was severely injured.
Mario Frediani, a witness for the defendant, testified that he was employed by the Reno
Street Department.
that he was employed by the Reno Street Department. The pipes placed in the barricade were
planted in concrete bases. The NOT A THROUGH STREET and the DEAD END
AHEAD signs had yellow backgrounds with black lettering.
Alan Anderson, a witness for the defendant, testified that he was with the Reno Police
Department as a traffic officer and that he went to the scene of the accident soon after it
happened. There was no skid mark of any kind west of the barrier. The debris east of where
the automobile came to a stop was scattered for approximately 100 feet.
Donald L. Rama, a witness for the defendant, testified that he was a traffic officer with the
Reno Police Department at the time of the accident. He and officer Anderson checked Airport
Road 150 to 200 feet before the barricade and found no skid marks at all.
Eugene C. Sprout, a witness for the defendant, after testifying that he was a professional
civil engineer and after qualifying as an expert, stated that the warning lights on the ends of
the runway were on poles 30 feet high, the lights were red, there were three sets, and that the
poles themselves were 260 feet apart with a pair of lights on each pole. The lights could be
seen from Airport Road, not individually however.
The only assignment of error is that the trial court abused its discretion in granting the
motion for a new trial.
[Headnote 1]
In granting the motion, the trial court did not specify which of its instructions the jury
disregarded, or in what manner the verdict was against the law, or what injustice would result
to allow the verdict and judgment to stand. As to the remaining ground for granting the
motion, to wit, that the evidence was insufficient to justify the verdict, we must scrutinize the
evidence to ascertain whether the evidence was of such a nature that in setting aside the jury's
verdict and the judgment based thereon, the trial court abused is discretion.
If we should determine that the court abused its discretion in granting a new trial on this
ground, it necessarily follows that the verdict was not against the law, that no injustice to the
plaintiff would result from allowing the verdict to stand, and that the jury did not disregard
the court's instructions.
2

In Arrowhead Freight Lines v. White, 71 Nev. 257, 287 P.2d 718, this court stated:
The law of Nevada regarding such an appeal is well digested in Nevada Rock & Sand
Company v. Grich, 59 Nev. 345, 365, 93 P.2d 513, 521. The question is not whether we, as
an appellate court, on the record before us would have reversed the jury's verdict as without
evidentiary support. The question, rather, is whether upon that record the trial court can be
said to have abused its discretion in granting new trial. As stated in Treadway v. Wilder, 9
Nev. 67, 70, It must be borne in mind that the nisi prius courts in reviewing the verdict of
juries are not subject to the rules that govern appellate courts. They may weigh the evidence
and if they think injustice has been done grant a new trial where appellate courts should not
or could not interfere.' We must, then, respect not the jury's verdict but the trial court's
judgment (that the evidence clearly preponderates against the verdict or that it would result in
injustice) unless that judgment is clearly wrong.
It is apparent from a review of the evidence that it is in conflict with respect to the
negligence of the City in the construction and maintenance of the barrier across Airport Road.
If this was the only matter before us, it is clear from the earlier Nevada decisions that the
discretion resting in the trial judge would empower him to set aside the verdict, if he felt the
verdict resulted in injustice.
If, however, the negligence of the City, if any, was not a proximate cause of the accident,
its negligence would have no significance.
From the admitted facts and the uncontradicted testimony, Gary Cooper at the time he hit
the barricade was driving at a speed between 70 and S0 miles an hour {witnesses Fogarty
and Maxwell), or at a minimum of 50 miles per hour at the time he hit the barricade
{witness Barnes).
____________________

2
The record shows that the jury was properly instructed on all phases of negligence, proximate cause, and
burden of proof.
driving at a speed between 70 and 80 miles an hour (witnesses Fogarty and Maxwell), or at a
minimum of 50 miles per hour at the time he hit the barricade (witness Barnes). In driving in
excess of 35 miles per hour Cooper was violating the law and was guilty of reckless driving
under the city ordinances. The gross negligence of Cooper was alleged by respondent in his
original complaint, and admitted by his counsel during oral argument. Aside from this,
however, the record shows that Cooper failed to keep his automobile at such speed and under
such control as to be able to stop it within the range of his vision. Had he complied with this
requirement, there would have been no accident. In City of Miami v. Saunders, 151 Fla. 699,
10 So.2d 326, where the driver in exceeding the speed limit ran off the dead end of a street,
the court said, the driver was driving so rapidly when he discovered the street was a
dead-end street he was unable to stop the automobile, and concluded that such negligence
was the sole proximate cause of the accident.
The Supreme Court of California in Rodkey v. City of Escondido, 8 Cal.2d 685, 67 P.2d
1053, stated:
A municipality is not bound to maintain its highways in a condition to preclude the
possibility of injury or accident. It is not an insurer of the safety of travelers on its streets. The
duty imposed upon it under the statute of 1923 (Stats. 1923, p. 675) is to exercise ordinary
care to maintain its streets in a reasonably safe condition for their use in a proper manner.
(Citations) It is not required to maintain the highway so as to insure freedom from accidents
at every possible speed. The city has the same right as an individual to assume that the
motoring public will obey the law and therefore will moderate its speed in passing through a
residence district. The record shows, and the findings do not negative the showing, that the
storm dip was safe for cars traversing it up to speeds of thirty or thirty-five miles an hour.
Under the particular facts we must conclude that the city has met the requirements of its duty
to the traveling public. Negligence on its part is not therefore shown. In such a case the
question whether any negligence of the driver of the car is imputable to the plaintiff cannot
affect the result.
the plaintiff cannot affect the result. If the driver had been proceeding with due caution he
would have been aware of the nature of the district and of the construction of the highway and
if he had restricted his speed accordingly no untoward result would have ensued. Under the
circumstances presented on this record his negligence must be deemed the sole proximate
cause of the injury to the plaintiff and the city cannot be held liable.
In Briske v. Village of Burnham, 379 Ill. 193, 39 N.E.2d 976, the charge against the city
was that it failed to give adequate warning of the barrier it had erected. The court there said
that if the negligent act or omission did nothing more than furnish a condition making an
injury possible, and such condition, by the subsequent independent act of a third person,
causes an injury, the two acts are not concurrent and the existence of the condition is not the
proximate cause of the injury. An intervening efficient cause is a new and independent force
which breaks the causal connection between the original wrong and the injury and itself
becomes a direct and immediate cause of the injury.
[Headnote 2]
The general rule is that a municipal corporation must exercise ordinary care to keep its
streets in a reasonably safe condition for ordinary use by the public. Oklahoma City v. Baker,
195 Okl. 238, 156 P.2d 612. It is not required to keep its streets in a condition that protects
the users from a use that is not ordinary. The ordinances required the drivers of automobiles
on Airport Road to drive at a speed not to exceed 35 miles per hour or at a rate of speed not
greater than is reasonable or proper under the circumstances. The conduct of Cooper was such
as not to be expected from the ordinary use of the road.
[Headnotes 3, 4]
Under our previous decisions, where we have held the lower court had not abused its
discretion in granting a new trial, the district court either discovered an error of law
committed during the trial which if uncorrected would necessitate a reversal on appeal, or
in weighing the facts it had concluded that the jury's verdict was wrong and if
undisturbed an injustice would result.
granting a new trial, the district court either discovered an error of law committed during the
trial which if uncorrected would necessitate a reversal on appeal, or in weighing the facts it
had concluded that the jury's verdict was wrong and if undisturbed an injustice would result.
Here it is not contended that any error of law occurred during the course of the trial. The
lower court in granting the motion for new trial professed to exercise its discretion upon the
facts. When it appears from the uncontroverted facts as a matter of law that the sole
proximate cause of the accident was the gross negligence of Cooper, the trial court under such
circumstances, in granting the motion for a new trial, did not exercise its discretion with
respect to the facts but rather was ruling on a question of law. The ruling of the court
therefore will be treated the same as a ruling upon any other legal question arising in the
progress of the trial, and this court will determine its correctness independently of the
judgment of the trial court. Barnes v. J. C. Penney Co., 190 Wash. 633, 70 P.2d 311.
The trial court having erred on a pure question of law in vacating the jury verdict and
judgment based thereon and granting a new trial, it is the duty of this court to reverse the
order. Every v. Every, 293 P.2d 612 (Okl. 1956).
The order appealed from is reversed, and the cause is remanded with directions to reinstate
the verdict and judgment.
Thompson, J., concurring:
The basis for a new trial, as expressed in NRCP 59(a)(7) perplexes me. If the words used,
insufficiency of the evidence to justify the verdict or other decision, or that it is against law,
means the absence of substantial evidence to support the verdict, then the verdict should be
set aside and judgment entered for the opposing party as a matter of law. Another trial would
be nonsense.
trial would be nonsense. On the other hand, if the words acknowledge that there may be
substantial evidence to support the verdict, then it seems to me that the verdict should stand
even though the trial judge may not like it. The present case places the problem in focus. The
trial judge (correctly in my view) denied the motion of the City of Reno for a directed verdict
based on the proposition that it was entitled to judgment as a matter of law. The judge
believed that reasonable minds could differ regarding the city's alleged liability to plaintiff,
and therefore ruled that the jury should decide the case. Yet, after the jury made its decision,
the court set it aside (not because of a legal error, new evidence, misconduct, etc., which may
have affected a fair trial, but rather because of his view of the evidence) and ordered the
parties to do it all over again. The foolishness of it all is immediately apparent.
Presented with this problem in years past, this court on review of an order granting a new
trial on this ground, NRCP 59(a)(7), formerly 9385.52(7) 1929 NCL, 1941 Supp., has
attempted to evaluate the trial judge's action in terms of whether he abused the discretion,
granted him. The guiding principles are tabulated in Nevada Rock & Sand Co. v. Grich, 59
Nev. 345, 93 P.2d 513, and succeeding cases. Briefly it may be said that his discretion is
properly exercised if he grants a new trial when the evidence preponderates against the
verdict, but that an abuse occurs when the evidence preponderates in favor of the verdict. We
are ill equipped to make such an evaluation. We can, with reasonable accuracy, search a
record to ascertain if there is some substantial evidence to support a result. However, I
seriously doubt our capacity on review to assert what evidence preponderates or is to be given
the greater weight. Nor should the trial judge have that prerogative once having determined
that the case is properly one for jury decision.
Precedent advises that when a case comes to us on appeal from an order on motion for new
trial in a jury case, we must look to the decision of the judgenot the jury verdict.
the jury verdict. Arrowhead Freight Lines v. White, 71 Nev. 257, 287 P.2d 718.
1
Yet we are
in no position to decide whether an abuse of discretion has occurred until we first re-examine
the facts presented to the jury to see if there is a preponderance for one side or the other. We
cannot do this on a direct appeal from a judgment entered on a jury verdict. Being remote
from the arena, we do not profess to have the capacity to weigh, sift and evaluate the evidence
when the case comes to us in that manner. Why should the rule on review be different when
the appeal is taken from the judge's order on a motion for a new trial? It seems to me that the
same standards should apply in either instance. If the verdict rests on substantial evidence, it
should stand; if it does not it should be set aside. Admittedly, the process of determining the
existence of substantial evidence requires some evaluation on our part. However, it is a
reasonably workable standard in most cases. On the other hand, I find it quite impossible
from our vantage point to review a record and decide on which side the evidence
preponderates. Yet such is our task under Nevada case law as it now exists. I believe that
NRCP 59(a)(7), as a basis for granting a new trial, should be abolished as a hindrance to the
efficient administration of justice. The other grounds for new trial set forth in NRCP 59{a)
are sufficiently broad to permit the correction of an occurrence affecting the fairness of
the trial.
____________________

1
Learned Hand expressed his disapproval when, on review of an order denying a new trial motion, he stated:
Moreover, while it might be well to give us the unconditional power to review such orders, we could not as
things are exercise it freely. The most that has been said is that we may do so when there has been an abuse of
discretion.' That is an impracticable rule, unless confined as it has always been confined save for Cobb v.
Lepisto. The trial judge decides what verdict is within the bounds of reasonable inference from the evidence.
That is a question which we can consider as well as he, and which we do upon his direction of a verdict. But by
hypothesis we are not to be allowed to do that; we must come at the matter at one remove, and apply the same
test to the judge's decision that he applies to the jury's. We must in effect decide whether it was within the
bounds of tolerable conclusion to say that the jury's verdict was within the bounds of tolerable conclusion. To
decide cases by such tenuous unrealities seems to us thoroughly undesirable; parties ought not to be bound by
gossamer strands; judges ought not to engage in scholastic refinements. Miller v. Maryland Casualty Co., 40
F.2d 463.
trial set forth in NRCP 59(a) are sufficiently broad to permit the correction of an occurrence
affecting the fairness of the trial.
Turning to the present case, I, too, believe that the trial court's order granting a new trial
should be reversed. There is a mass of evidence from which the jury could rightfully conclude
that the City of Reno was not liable to the plaintiff.
____________
79 Nev. 384, 384 (1963) Bowers v. Edwards
JOHN C. BOWERS, Appellant, v. GEORGE
WALKER EDWARDS, Respondent.
No. 4605
October 14, 1963 385 P.2d 783
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti and John
W. Barrett, Judges.
Action by buyer to rescind purchase of restaurant business, recover payment made on
purchase price and cancel purchase money note for unpaid balance of price, wherein the
defendant seller filed a counterclaim on the note. The trial court entered judgment for
defendant on his counterclaim and later entered an order denying plaintiff's motion to alter the
judgment, and plaintiff appealed. The Supreme Court, McNamee, J., held, inter alia, that
rescission of purchase by buyer was wrongful, but since seller had resold business to a third
person, seller was unjustly enriched at the expense of original buyer as the result of judgment
on the counterclaim and justice required that cause be remanded for limited new trial to
determine extent of such unjust enrichment.
Affirmed in part, reversed in part, and cause remanded for a limited new trial.
Procter R. Hug, Jr., of Reno, and G. H. Van Harvey, of San Francisco, California, for
Appellant.
Bradley & Drendel, and Leo P. Bergin, of Reno, for Respondent.
1. Sales; Trial.
Findings read in conjunction with conclusion of law were legally sufficient to establish that trial judge
determined that buyer had failed to substantiate allegations of fraud and misrepresentation as ground for
rescission of purchase of restaurant business, recovery of payment made on purchase price and cancellation
of purchase money note for unpaid balance, and in view of conflicting evidence, finding that buyer had no
cause of action for fraud was not erroneous in absence of objection to form or substance of findings in trial
court.
2. Sales.
In buyer's action to rescind purchase of restaurant business, recover payment made on purchase price and
cancel purchase money note for unpaid balance thereof, evidence supported finding that buyer made no
request to examine books and records of business.
3. Judgment.
Where there is conflict between minute order and judgment, the judgment prevails.
4. Pleading.
Under rules of procedure, reply to counterclaim was a required responsive pleading and plaintiff by
failure to reply admitted allegations of counterclaim. NRCP 7(a), 8(d).
5. Sales.
Where buyer wrongfully rescinded purchase of restaurant business without proof of fraud inducing
purchase, seller was entitled to retain payment made on purchase price and to recover unpaid balance of
price represented by purchase money note. NRS 96.720.
6. Sales.
Unpaid seller of goods has lien on such goods for right to retain them for the price while he is in
possession of goods and right of resale as provided by statutes. NRS 96.620, 96.690.
Where seller resold restaurant business to third person after original buyer had wrongfully rescinded
purchase thereof and was awarded judgment against original buyer for unpaid balance of purchase price
represented by purchase money note, seller was unjustly enriched at expense of original buyer in amount
not ascertainable under record which did not disclose expenses connected with resale, and though buyer
did not request setoff, justice required that cause be remanded for limited new trial to determine extent of
unjust enrichment. NRS 96.730.
OPINION
Bowers entered into a contract to purchase from Edwards the Broiler Pit Cafe, in Reno, for
$10,000. He paid Edwards $7,000 in cash and gave his promissory note in the sum of $3,000
payable in six months for the balance.
for the balance. The sale involved the stock in trade, fixtures, good will, and the assignment
of Edwards' lease. Bowers took possession and operated the restaurant until the note became
due. In response to the demand for payment Bowers surrendered the premises to Edwards
including the stock in trade and fixtures and notified Edwards he rescinded the contract. After
several weeks Edwards sold the business including the fixtures and stock in trade to a third
person for approximately $2,500.
This is an action by Powers to recover the $7,000 payment and to cancel the $3,000 note.
He alleges that Edwards, for the purpose of inducing him to make the purchase, fraudulently
represented that the business was profitable, that the net profits realized during the year
immediately preceding were in excess of $5,000, that he would assign to Bowers his lease
and would secure the written consent of the lessor to the assignment and obtain from the
lessor a 5-year extension of the lease.
The complaint further alleges that said representations were false, and Bowers did not
learn such fact until Edwards demanded payment of the $3,000 note.
Edwards' answer denies the allegations of fraud and counterclaims for the $3,000
represented by the note.
The case was tried before Judge Maestretti without a jury. Bowers testified that Edwards
made the representations as alleged which induced him to purchase the business. Edwards
denied having made any such representations.
On May 23, 1958, after the case had been tried and submitted, Judge Maestretti signed the
following minute order: Ordered the prayer of plaintiff's complaint be denied; that defendant
have his costs of suit.
On April 28, 1959 the findings of fact and conclusions of law signed by Judge Maestretti
were filed and consist solely of the following:
Findings of Fact
I.
That the Plaintiff, John C. Bowers, had engaged in the restaurant business most of his
life, and came to Reno, Nevada from Elko, Nevada some time before June 29, 1953;
Plaintiff inquired from various food purveyors in the area as to a restaurant business that
might be for sale; pursuant to these inquiries, he was referred to the restaurant owned by
Defendant, George Walker Edwards, at 243 East Fourth Street, Reno, Nevada, and known
as The Broiler Pit; the Plaintiff surveyed the restaurant, observing the manner and type as
well as the manner and type of equipment, and subsequently, on June 29, 1953, entered
into an agreement for the purchase of The Broiler Pit from the Defendant, and executed a
memorandum sales agreement in connection therewith; contemporaneously with the
execution of this sales agreement, Plaintiff executed a promissory note in the sum of
Three Thousand Dollars {$3,000.00), payable to the Defendant, for the unpaid portion of
the purchase price; Plaintiff operated The Broiler Pit for a period of six {6) months, after
which time he abandoned the premises and brought suit against the Defendant for fraud
and misrepresentation in connection with the sale.
June 29, 1953; Plaintiff inquired from various food purveyors in the area as to a restaurant
business that might be for sale; pursuant to these inquiries, he was referred to the restaurant
owned by Defendant, George Walker Edwards, at 243 East Fourth Street, Reno, Nevada, and
known as The Broiler Pit; the Plaintiff surveyed the restaurant, observing the manner and type
as well as the manner and type of equipment, and subsequently, on June 29, 1953, entered
into an agreement for the purchase of The Broiler Pit from the Defendant, and executed a
memorandum sales agreement in connection therewith; contemporaneously with the
execution of this sales agreement, Plaintiff executed a promissory note in the sum of Three
Thousand Dollars ($3,000.00), payable to the Defendant, for the unpaid portion of the
purchase price; Plaintiff operated The Broiler Pit for a period of six (6) months, after which
time he abandoned the premises and brought suit against the Defendant for fraud and
misrepresentation in connection with the sale.
II.
That Plaintiff made no request to examine the books and records of The Broiler Pit and
made no complaint to the Defendant concerning the volume of business in The Broiler Pit
until demand was made upon him for payment of the Three Thousand Dollar ($3,000.00)
promissory note by him to the Defendant.
Conclusions of Law
1) That the essential elements of fraud and misrepresentation necessary to sustain
Plaintiff's claim against Defendant were not proved by the Plaintiff.
2) That Defendant is entitled to the sum of Three Thousand Dollars ($3,000.00), pursuant
to his counterclaim and the promissory note made by Plaintiff to Defendant on July 1, 1953.
On April 28, 1959 the judgment signed by Judge Maestretti was also filed decreeing that
appellant recover nothing from the defendant and that the defendant have judgment on his
counterclaim in the sum of $3,000. No costs were allowed to either party.
On May 6, 1959 appellant filed a motion entitled Motion to Alter Judgment, asking that
the conclusions of law be amended by deleting therefrom: That Defendant is entitled to the
sum of Three Thousand Dollars ($3,000.00), pursuant to his counterclaim and the promissory
note made by plaintiff to defendant on July 1, 1953. The motion was made upon the ground
that the decision of the court as shown by said minute order made no mention of the award of
$3,000 based on respondent's counterclaim.
On July 1, 1959 a minute order signed by Judge Maestretti reveals a denial of the motion.
On March 3, 1961 respondent filed a motion entitled Motion to Dismiss Motion to Alter
Judgment. It does not appear why respondent should make such motion when motion to alter
judgment had already been denied. Nevertheless, this latter motion by respondent was argued
and the motion to alter judgment was again argued, and on October 1, 1962 Judge Barrett,
after reviewing Judge Maestretti's minute order, findings, conclusions and judgment filed his
order denying the motion to alter judgment.
Appeal is from the judgment entered April 28, 1959 and from the order of October 1, 1962
denying the motion to alter judgment.
The following errors are specified:
1. The trial Court erred in finding that appellant had no cause of action for fraud.
[Headnote 1]
In view of the conflict in the evidence with respect to whether the alleged representations
had been made this assignment has no merit.
While the form of the findings is not to be commended, the findings read in conjunction
with the first conclusion of law are legally sufficient to establish that the trial judge
determined that appellant had failed to substantiate his allegations of fraud and
misrepresentation. Appellant made no objection to the form or substance of these findings in
the trial court. His objection made pursuant to NRCP 52(b) concerned solely the allowance to
respondent of the $3,000.
2. The trial Court erred in finding that appellant made no request to examine the books
and records of respondent's business, and that it was appellant's duty to examine said
books and records."
made no request to examine the books and records of respondent's business, and that it was
appellant's duty to examine said books and records.
[Headnote 2]
In this connection the findings do not state that it was appellant's duty to examine said
books and records. The finding in this regard merely states that plaintiff made no request to
examine the records, and the evidence supports such a finding.
The third and fourth specifications of error can be treated together. Appellant maintains
that the trial court erred in entering judgment in favor of respondent on his counterclaim and
in denying appellant's motion to alter the judgment in that respect.
[Headnote 3]
Although it is true that the judgment in the amount of the counterclaim was not mentioned
by the court in its oral decision, where there is a conflict between a minute order and a
judgment, the latter prevails. Mortimer v. Pacific States Savings & Loan Co., 62 Nev. 147,
145 P.2d 733.
[Headnote 4]
Under NRCP 7(a) a reply to a counterclaim is a required responsive pleading. Because of
his failure to reply, appellant admitted the allegations of the counterclaim. NRCP 8(d).
[Headnote 5]
The lower court determined that no fraud had been proved, and that the attempted
rescission by the buyer was wrongful. The seller, respondent herein, was therefore entitled to
retain the $7,000 paid to him by the buyer and was further entitled to recover the balance of
the purchase price represented by the $3,000 note, the note being a part of the transaction.
Subsection 1 of NRS 96.720. Cf. L. P. Courshon Co. v. Brewer, 215 Iowa 885, 245 N.W.
354.
[Headnote 6]
Under NRS 96.620, the unpaid seller of goods has a lien on the goods or right to retain
them for the price while he is in possession of them and he also has the right of resale as
provided by NRS 96.690.
[Headnote 7]
Although appellant did not ask that the amount received by respondent on the resale be a
setoff against the $3,000 allowed under respondent's counterclaim, the evidence discloses that
respondent has been unjustly enriched to some extent at the expense of appellant. NRS
96.730. The extent of such unjust enrichment cannot be ascertained by this court because it is
not disclosed in the record.
1
We feel that justice requires that this cause be remanded to the
lower court for a new trial limited solely to the extent of respondent's unjust enrichment, if
any, resulting from his sale to the third party, appellant to be allowed to file a reply to the
counterclaim when the extent of the setoff is determined.
The judgment is affirmed. The order denying the motion to alter judgment is reversed. The
cause is remanded for a limited new trial in accordance with this opinion. No costs are
allowed.
Wines, D. J., concurring (in part):
The critical issue of this action was disposed of by the trial court in this fashionThat
the essential elements of fraud and misrepresentation necessary to sustain plaintiff's claim
against the defendant were not proved by the plaintiff. The record would belie this; proof
was made, and we are left to conjecture whether the court intended saying that the proof was
insufficient, or that it was not credible. This linguistic puzzle cannot be solved by reference to
the transcript as that would involve weighing the evidence, nor are we in any manner assisted
by the Findings of Fact. It is implicit however, in the trial court's decision, the Findings of
Fact and Conclusions of Law, that the court reached the conclusion that the plaintiff failed to
make out his case. It is not crucial to the appellant whether his evidence on this issue was not
convincing or not credible. The trial court's conviction is supported by the record.
____________________

1
It appears from the record that the property was resold for approximately $2,500, but that the seller had
expenses connected with the resale which to an undisclosed extent would reduce the appellant's setoff.
court's conviction is supported by the record. Form may cavil with substance but to no profit.
On some later day this court may rule again that a failure to find on an issue is not harmless
error. Robison v. Bate, 78 Nev. 501, 376 P.2d 763.
Our discord is in this aspect. The trial court found, * * * Plaintiff operated the Broiler Pit
for a period of six (6) months, after which time he abandoned the premises and brought suit
against the defendant for fraud and misrepresentation in connection with the sale. After
reading the record we describe the event in this languageBowers took possession and
operated the restaurant until the note became due. In response to the demand for payment
Bowers surrendered the premises to Edwards, including the stock in trade and fixtures, and
notified Edwards he rescinded the contract. After several weeks Edwards sold the business,
including the fixtures and stock in trade, to a third person for approximately $2,500.
It is my impression that neither counsel would challenge the latter version of those events.
If that is correct then we are confronted with a different problem. I do not deem it quibbling
when I asked to be informed as to Edwards' intent in repossessing the business before holding
that he did so with the intent to advance his remedy under the Sales Act. Several remedies
were available to him, not all equally expedient, but all equally lawful. NRS 52.070(33). The
record is not devoid of proof of the seller's purpose.
At pages 181 (commencing at line 23) and 182 (line 1) of the transcript this colloquy
between Mr. Edwards and counsel for the appellant is recorded:
Q. Now, when you received the notice of rescission, what did you do upon receiving the
notice of rescission?
A. Well, my attorney notified me of the notice of rescission.
Q. And then what did you do?
A. I don't recall that I did anything. He handled it from then on.
Q. Do you know whether the rescission was accepted?
A. I presume it was, I don't know.
Except for this the record is barren of any testimony on what I deem a decisive issue.
That ado is made over trifles has occurred to the writer. And as a practical matter the relief
afforded the seller pursuant to the Sales Act would not differ materially from that governed
by the rules of mitigation of damages. But if the seller did accede, and his motives for so
doing are unimportant, to the rescission the consequences are different. And so I persist.
I would agree that the action should be remanded for a limited new trial. I would not
confine the issue on the retrial to the extent of the respondent's unjust enrichment. I would
remit the action for a new trial on the issue herein set out and proceed thence to a
determination of the equities between the parties.
Thompson, J., being disqualified, the Governor commissioned Honorable Taylor H.
Wines, Judge of the Fourth Judicial District Court, to sit in his place.
____________
HOTEL LAST FRONTIER CORPORATION, a Corporation, Appellant, v. FRONTIER
PROPERTIES, INC., a Corporation, Respondent.
No. 4572
October 18, 1963 385 P.2d 776
Appeal from judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Suit by lessee against lessor for a declaration of rights and obligations under a lease and
for injunctive relief. From an adverse judgment of the trial court the lessor appealed. The
Supreme Court, Badt, C. J., held that under lease which provided that lessee would keep the
buildings and improvements and personal property insured in an amount equal to 90 percent
average clause attached and an amendment gave insurer right to insure up to 100 percent of
the replacement cost by paying additional premiums for difference between 90 percent and
100 percent of replacement cost, lessee was only obligated to pay premiums on 90 percent
of the actual value.
only obligated to pay premiums on 90 percent of the actual value.
Affirmed.
See also 79 Nev. 150, 380 P.2d 293.
G. William Coulthard and Franklin N. Smith, of Las Vegas, for Appellant.
Calvin C. Magleby, of Las Vegas, for Respondent.
Where court was primarily called upon to construe and interpret portions of lease and parties introduced
evidence to explain apparent conflict and left for court's determination the parties' own construction of the
lease, implied finding by court rejecting lessor's contention of such factual interpretation was sufficient, and
there was no reversible error because of court's alleged failure to make more specific findings on the
question of practical interpretation.
2. Declaratory Judgment.
Evidence sustained determination that practical interpretation of lessor and lessee of lease agreement did
not amount to a recognition by lessee that it was obligated to insure leased premises at 90 percent of the
actual value and to pay finance charges for insurance, and that lessee paid premiums on policies taken out
by lessor, which still had 3 years to run, on representation that it would be financially advantageous to
continue existing policies in force for the remainder of their terms.
3. Landlord and Tenant.
Under lease which provided that lessee would keep buildings and improvements and personal property
insured in an amount equal to 90 percent average clause attached and amendment which gave lessor right
to insure up to 100 percent of replacement cost by paying additional premiums for difference between 90
percent and 100 percent of replacement cost, lessee was only obligated to pay premiums on 90 percent of
actual value.
Under lease providing that lessee could pay premiums on premises on basis of equal monthly
installments, plaintiff was entitled to pay premiums on a 5-year policy over 60 months and was not required
to pay cost of financing on insurance over a period of 40 months.
OPINION
This is an appeal from a final judgment in an action for declaratory and injunctive relief
brought by respondent to obtain a declaration of the rights and obligations of the parties under
a lease from the appellant lessor to the respondent lessee, with reference to the insurance
to be carried upon the leased premises, improvements and contents.
lessor to the respondent lessee, with reference to the insurance to be carried upon the leased
premises, improvements and contents. The lease embraced the resort hotel, casino, and other
properties known as The New Frontier in Las Vegas. The personal property situate in the
buildings was inventoried in detail. The property was leased for a period of 10 years,
commencing January 1, 1959, and is dated September 30, 1958.
Despite the fact that the instrument was drawn with great care and comprises 24
typewritten pages, it was found necessary to add addenda, December 11, 1958, in which the
original instrument is amended in numerous respects.
The only problem presented on this appeal arises out of a single subparagraph contained in
paragraph No. XIII of the original lease entitled Insurance, and paragraph No. 17 of the
addenda. The second subparagraph of paragraph XIII referred to reads as follows:
Lessee shall, at its own expense, keep any and all buildings and improvements and
personal property on the leased premises insured against fire and extended coverage in an
amount equal to ninety (90%) per cent average clause attached, and loss payable under any
and all such insurance policies to any lien holders and lessor and lessee as their respective
interests may appear.
The amendment reads as follows:
17. Add to the first full paragraph on Page 14:
Lessor may at its election procure insurance up to 100% of the replacement cost of the
demised premises at its expense by paying the additional premiums for the difference
between 90% and 100% of replacement cost.'
Plaintiff's amended complaint in seeking a declaration of the rights and obligations of the
parties recited, among other things, paragraph XIII of the lease in full, paragraph XX defining
default and the rights of the lessor thereunder, and asserts that the lessor has demanded that
lessee pay the premiums on the insurance placed by the lessor on the basis of 90% of
replacement value of the improvements and 90% of the actual value of the personal property
and also the costs of financing the said insurance over a period of 40 months, contrary to the
terms of and far in excess of the amounts payable by the plaintiff, and contrary to the
provision of the lease that said payments were to be made monthly to the extent of 1J60
of the total amount payable for insurance over the 5-year period of the policies; and that
the defendant has threatened cancellation of the lease; that plaintiff offered to pay into
court the sum of $13,900.4S, later changed to $17,902.4S for premiums for fire and
extended coverage and public liability insurance for the months of September, October,
November, and December, 1960, and to deposit in court monthly thereafter on account of
said premiums the sum of $3,475.62.
to the terms of and far in excess of the amounts payable by the plaintiff, and contrary to the
provision of the lease that said payments were to be made monthly to the extent of 1/60 of the
total amount payable for insurance over the 5-year period of the policies; and that the
defendant has threatened cancellation of the lease; that plaintiff offered to pay into court the
sum of $13,900.48, later changed to $17,902.48 for premiums for fire and extended coverage
and public liability insurance for the months of September, October, November, and
December, 1960, and to deposit in court monthly thereafter on account of said premiums the
sum of $3,475.62.
Defendant answered and, in addition to certain admissions and denials, alleged that the
best term of insurance that could be financed was for a period of 42 months requiring a down
payment of $32,133.08 (which included payments of $4,682.06 per month for September to
December, 1960, inclusive, and two additional monthly payments of $4,682.06 each, and 35
monthly payments of $3,258.47 each, payment of the remaining balance. It alleged certain
additional breaches of the lease and sought judgment for the sum of $32,133.08, representing
the down payment paid by defendant A.F.C.O., the insurance premium financing firm, to
institute said insurance and for the further payment of $4,682.06 for January, 1961, and
certain further relief. The total demanded for the 5-year period is $174,271.89. This, however,
includes $18,458.26 which is not in dispute.
The case was tried and submitted to the court without a jury on the following stipulated
issues:
1

(A) The issue of whether Plaintiff is required to pay the cost of financing monthly
premiums of insurance for fire and extended coverage and public liability insurance, and
whether said monthly premiums are payable over the term of the financing contract therefor,
or over the life of the policies.
____________________

1
The stipulation provided for the deposit in court if certain sums and for an appraisal to be made and for
increase or decrease in premiums in accordance with such appraisal, and further provided that the lessor would
not attempt to cancel the lease for nonpayment of insurance premiums, provided that the lessee pay $17,500 into
court and $3,500 a month and other details not affecting the disputed issues.
(B) The issue of whether the insurance procured for fire and extended coverage insurance
shall be based upon ninety percent (90%) of replacement cost of buildings and contents, or
based upon ninety percent (90%) of the insurable cash value thereof, under said lease of
September 30, 1958, as amended.
The court's decision is reflected by a minute order, June 20, 1962, as follows:
This matter having been heretofore submitted to the Court for decision, by the Court
ordered that the lessee pay all premiums upon the sound value and the recommended
insurance value, the same being the new replacement cost as $4,443,525, the recommended
insurable value as $4,115,418, the sound value at $3,385,568 and the recommended insurable
value as $3,135,419. Judgment may enter accordingly.
On July 6, 1962, the court found inter alia as follows:
III. The Court finds in favor of the Plaintiff and against the Defendant on each of the two
[stipulated] issues * * *.
IV. That the insurable cash value of the buildings and the contents thereof subject to the
lease described in the Complaint was and is $3,135,419.00.
V. That Plaintiff is obligated to pay the premiums on fire and extended coverage
insurance on said buildings and contents in a sum equal to 90% of $3,135,419.00 and no
more.
VI. That Plaintiff is not obligated to pay the cost of financing said insurance and is
entitled to pay the premiums on such insurance in monthly installments over the life of the
policies evidencing the same without interest.
This was followed by the court's conclusions of law in the identical language contained in
findings numbered IV, V, and VI, and the court entered judgment in the identical language of
said conclusions. Appeal was taken from the judgment.
Appellant filed no specifications of error, but we glean from the discussion in appellant's
opening brief that error entitling appellant to a reversal is assigned as follow: (1) insufficiency
of the findings; (2) error in the court's determination that the lease was ambiguous and in
its construction of the lease after receipt of evidence to explain the ambiguity; {3) error in
not giving effect to a practical construction given to ambiguous provisions in the lease by
the actions of the parties thereto; and {4) error in not assessing damages against
respondent in the amounts actually paid by appellant to obtain the insurance in question.
in the court's determination that the lease was ambiguous and in its construction of the lease
after receipt of evidence to explain the ambiguity; (3) error in not giving effect to a practical
construction given to ambiguous provisions in the lease by the actions of the parties thereto;
and (4) error in not assessing damages against respondent in the amounts actually paid by
appellant to obtain the insurance in question. We treat of these in the order recited.
(1) The attack on the findings is based upon the violation of NRCP Rule 52(a), reading in
pertinent part as follows: In all actions tried upon the facts without a jury or with an advisory
jury, the court shall find the facts specially and state separately its conclusions of law thereon
* * *. Subdivision (b) of the rule provides for an amendment of the findings on motion. The
question of the sufficiency of the evidence to support the findings was not made in the court
below, nor did appellant move to amend findings.
[Headnote 1]
For the most part, the issues which the court was called upon to decide under the
stipulation were legal issues, requiring only the court's conclusions. City of Alameda v. City
of Oakland, 198 Cal. 566, 246 P. 69; Peak v. Republic Truck Sales Corporation, 194 Cal.
782, 230 P. 948; Griffith v. Maxfield, 62 Utah 51, 218 P. 105. The court was primarily called
upon to construe and interpret portions of the lease and the amending addenda which
appeared to be in conflict. Both parties to the action introduced evidence to explain such
apparent conflict. This left for determination one factual question, namely, the statements and
actions of the parties asserted by appellant to have placed their own construction on the
instruments. This undoubtedly required a factual determination, and it would have been in
order for the appellant to have sought from the trial court a finding on such action. However,
when we read the findings and conclusions it is evident that, if nothing more, they contain an
implied finding that the court rejects appellant's contention of such factual interpretation. This
becomes clear in our discussion infra of the main assignment of error.
assignment of error. We find no reversible error in the court's failure to make more specific
findings on the question of practical interpretation.
(2) Appellant next asserts at some length that whether a contract or lease is ambiguous or
uncertain is a question of law and the lower court's finding or determination is not binding
upon the appellate court, and if it is found by the trial court to be ambiguous or uncertain, it is
primarily that court's duty to construe it after full opportunity to the parties to produce
evidence of the facts, circumstances, and conditions surrounding its execution and the
conduct of the parties thereto; that the construction of a contract is always a matter of law for
the court, no matter how ambiguous, uncertain or difficult its terms; that in the present
instance a careful reading of the parts of the instruments in question discloses the definite
existence of an ambiguity or of an uncertainty, or of both, and the question must ultimately be
determined by the appellate court; that in the instant case parol evidence was properly
admissible. We may concede the propriety of such contentions, but we are left in the dark as
to what error is predicated by reason thereof. The trial court did construe the instruments and
resolved the conflict. It did permit both parties to introduce evidence on the practical
interpretation issue. This precise assignment of error, if it may be considered such, is without
merit.
[Headnote 2]
(3) Appellant's next assignment appears to be that the court's findings and conclusions
were contrary to the practical construction placed upon the ambiguous provisions by the
parties through their conduct. The conduct relied upon is as follows: At the time of the
execution of the lease and addenda, or amendments (both instruments were bound together
and were duly executed prior to the effective date of the lease), sundry insurance policies,
theretofore maintained by the lessor, were in effect, under 5-year contracts, which at the time
of the negotiations had approximately three years to run. The premiums were paid by the
lessor who billed the lessee therefor during the period of time heretofore described in this
opinion, and included separate items for the premium and the financing charge and
interest.2 These bills were paid by the controller of respondent corporation, but the
evidence is in dispute whether the manager of the corporation knew of such situation and
whether the respondent corporation itself was chargeable with such knowledge so as to
constitute its own practical construction of the lease and option in this respect, and of the
fact, first, that the insurance was based upon 90% of the replacement cost {with the
resulting increased rates and amount of what would have resulted from an insurance of
90% of the actual value) and also the matter of payment of financing charges.
described in this opinion, and included separate items for the premium and the financing
charge and interest.
2
These bills were paid by the controller of respondent corporation, but
the evidence is in dispute whether the manager of the corporation knew of such situation and
whether the respondent corporation itself was chargeable with such knowledge so as to
constitute its own practical construction of the lease and option in this respect, and of the fact,
first, that the insurance was based upon 90% of the replacement cost (with the resulting
increased rates and amount of what would have resulted from an insurance of 90% of the
actual value) and also the matter of payment of financing charges.
The respondent's manager (president and chairman of the board) testified that for the
remaining approximate 3-year period for the prior existing policy he paid $3,500 monthly,
based on 1/60 of the insurance cost at the time it was placed, and that he had no knowledge
that he was paying or was being billed for interest payments or finance charges during such
3-year period until after the controversy arose, and that this was when he commenced this
action. He testified that he was able to obtain insurance on his other properties without paying
carrying charges or any interest, although the premium payments were paid on an installment
basis. He also testified on cross-examination as follows:
Well, Mr. Friedman said that, told me, he said Now, we have the property insured and
we've used two years of the insurance or some two years, three months, something of this
description'. He said We have five years policies, how would it be until it runs out if you pay
1/60th of it'. Now, I had no knowledge that this was financed from that standpoint because if
it was divided up under 1/60th, I would be paying for carrying the previous two years that he
was carrying the three years insurance that I was going to have to pay because the finance
charges would have been added to it and I would have had no recovery from that
whatsoever for the age of the policies up until the time I took them over.
____________________

2
Items included, in addition to fire and comprehensive coverage, liability and crime, rental income insurance,
plate glass insurance, boiler and auto insurance. Such latter items form no part of the issues submitted to the
court.
have had no recovery from that whatsoever for the age of the policies up until the time I took
them over. I considered I was paying 1/60th of the insurance premium, not 1/60th of the
insurance premium and carrying charges.
We are satisfied that there was ample substantial evidence to justify the trial court in its
refusal to find that the practical interpretation of the parties fixed the liability of respondent
for the future insurance policies to be taken out on the basis claimed by appellant, and in
interpreting the situation as one in which the lessor had represented and the lessee had
accepted the situation as one in which on the existing policies that had some three years to
run it was to the financial interest of the lessee to continue those existing policies in force
during the remainder of their respective terms rather than to cancel them, thus subjecting the
lessee to short-term premium rates, and had no bearing upon the new policies to be taken out
under the terms of the lease and the amendment thereto.
(4) Appellant next appears to assign as error the failure of the court to assess respondent
with damages corresponding to the amount that appellant was compelled to pay for premiums
and financing charges on the insurance taken out by him because the measure of damages
applicable in suits on ordinary contracts of indemnity is the loss actually sustained or the
amount actually paid. The entire discussion of this subject is without point. The assignment
is without merit.
[Headnote 3]
(5) We turn then to the main issue involved. We have quoted supra the lessee's covenant to
keep the buildings and improvements and personal property insured against fire and extended
coverage in an amount equal to 90% average clause attached. Appellant's main support for
its contention that this means 90% of replacement value grows out of amendment No. 17
which adds to the second paragraph XIII (Insurance) the following: Lessor may at its
election procure insurance up to 100% of the replacement cost of the demised premises at its
expense by paying the additional premiums for the difference between 90% and 100% of
replacement cost."
difference between 90% and 100% of replacement cost. Appellant lessor insists that the only
way this amendment makes sense is its indication that the lessee is to pay the first 90% of the
premium on replacement cost insurance. We must first, then, ascertain the meaning of the
insurance clause in the lease before the amendment that the lessee keep the premises insured
in an amount equal to 90% average clause attached. The witness Smith testified as an
expert insurance broker and agent that this has a definite meaning. He first testified that he
was familiar with the 1943 New York Standard Form of Fire Insurance Policy referred to in
NRS 691.040.
3
Smith testified: A. The average clause in insurance is a clause which
permits an insurance buyer and the insurance company agrees to give a reduced rate, if the
buyer will purchase insurance up to the amount of that stipulated percentage. Q. Now, is there
a standard average clause attached to the 1943 New York Standard Form of fire insurance? A.
The standard form has none but it is added by endorsement. Q. What is that, the standard
form or standard endorsement? A. It's called an average clause endorsement. It has a blank
space for the amount, the application of the percentage, either 70 percent, starting with 70
percent usually, 80 percent, 90 percent or 100 percent average clause. Q. And is that clause
written based upon replacement costs or sound value costs? A. The average clause attached to
the basic New York standard policy, is on sound value. Q. And so when the lease agreement
provides as it does on Page 14, 90 percent average clause attached, the average clause under
the standard New York policy is based upon sound value.
____________________

3
1. The standard fire insurance policy known as the 1943 New York Standard Form of Fire Insurance
Policy, a copy of which was filed by the commissioner in his office on September 15, 1943, with the date of such
filing endorsed thereon by him, is hereby adopted as the standard form of fire insurance policy for this state. All
such 1943 New York Standard Forms of Fire Insurance Policies issued or outstanding in this state after
September 15, 1943, shall be valid. No fire insurance policy or any renewal of any such policy on property in
this state shall be issued or delivered in this state after April 1, 1947, in other than such standard form, except
only as provided in this section and the following sections of this chapter, and except that there may be issued
riders, endorsements, clauses, permits, forms or other memoranda, to be attached to and made a part of such fire
insurance policy not inconsistent therewith.
the average clause under the standard New York policy is based upon sound value. Is that
correct? A. Yes sir.
Although not introduced in evidence, we take judicial notice of the 1943 New York
Standard Form of Fire Insurance Policy on file in the office of the State Insurance
Commissioner of Nevada and of the standard forms to be used for attachment thereto. Aldrich
v. Great American Insurance Co., 195 App.Div. 174, 186 N.Y.S. 569, 571; NRS 691.040. See
also 14 Vanderbilt L.Rev. 779; 1960 Wis. L.Rev. 39.
The Standard Form No. 29 average clause to be attached to and forming a part of
the basic policy first contains blanks to identify the number of the policy and the parties, and
contains the following: It is expressly stipulated and made a condition of the contract that, in
event of loss, this company shall be liable for no greater proportion thereof than the amount
hereby insured bears to ..... per cent of the actual cash value of the property described herein
* * *.
Standard Form 475 Replacement Cost Endorsement recites: This endorsement is only
for use on a policy which contains the required average clause. It recites that it is issued in
consideration of the application of the average clause provisions, and in consideration of the
premium, and specifically provides that the provisions of the policy applicable to the property
described are amended to substitute the term replacement cost' for the term actual cash
value' wherever it appears in this policy. Other provisions are inserted which are not
pertinent. These standard forms have to do with what is generally referred to as co-insurance,
and which serve under varying circumstances to reduce the premium rate. While there is
nothing to indicate that the insured after taking advantage of the rates provided by the
average clause and becoming thus a co-insurer for the loss above the agreed percentage of
the actual cash value, may not also take advantage of Standard Form 475 (but only if he has
also used Form 29) and effect insurance at an agreed percentage of replacement cost, this
would require attachment of both of the forms referred to. However, there is nothing in
paragraph XIII (Insurance) of the lease to indicate any such intention. Insurance in an amount
equal to 90% average clause attached is clearly indicated.
clause attached is clearly indicated. That the terms used in amendment No. 17 may be used as
a definition of the lessee's obligation under subject paragraph XIII of the lease did not appear
reasonable to the learned district judge and likewise does not appear reasonable to us.
Amendment 17 was obviously made to provide an additional right in the lessor. In so doing, it
blundered into language that appeared to affect the obligation of the lessee.
[Headnote 4]
As to the installments and the financing charges for arranging for payments in monthly
installments it must be noted that there is a total absence of any reference thereto in the lease
or the amendments thereto. There is a specified provision in the lease that the lessee may pay
the premiums on the basis of equal monthly installments. This indicates a monthly payment
for the 5-year term and the trial court properly so held.
We have carefully considered other points discussed in the briefs but find it unnecessary to
comment on them. Under the limited issues stipulated for determination to the district court,
we find no error in the judgment. The same is affirmed with costs.
____________
79 Nev. 403, 403 (1963) Chenoweth v. Board of County Comm'rs
RAYMOND CHENOWETH, dba Nellis Cab, and WILLIAM MIRIN, dba Strip Cab,
Appellants, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF
CLARK, LOU F. LaPORTA, HARLEY E. HARMON, ROBERT T. BASKIN, ARTHUR
OLSEN and NORMAN L. WHITE, Respondents.
No. 4618
October 21, 1963 385 P.2d 771
Appeal from order of the Eighth Judicial District Court, Clark County; David Zenoff,
Judge, denying mandamus.
Proceeding on applications for writs of mandate to compel Board of Commissioners to
issue county business licenses for operation of taxicab businesses within unincorporated area
of a county. The lower court denied the applications and applicants appealed. The Supreme
Court, Thompson, J., held that issue raised by the appeal as to whether public service
commission regulation requiring a certificate of convenience and necessity for a taxicab
carrier transporting passengers outside city limits was invalid on ground it was in excess of
the commission's authority and in contravention of statute was moot where pending appeal a
statute was enacted requiring that all taxicab motor carriers operating within the state must
first apply for and receive a certificate of public convenience and necessity.
Appeal dismissed.
Harry E. Claiborne, of Las Vegas, for Appellants.
Harvey Dickerson, Attorney General; Edward G. Marshall, Clark County District
Attorney, Las Vegas, for Respondents.
Appeal and Error.
Issue raised by appeal as to whether public service commission regulation requiring a certificate of
convenience and necessity for a taxicab carrier transporting passengers outside city limits was invalid on
ground it was in excess of the commission's authority and in contravention of statute was moot where
pending appeal a statute was enacted requiring that all taxicab motor carriers operating within the state
must first apply for and receive a certificate of public convenience and necessity. NRS 706.430, subd. 1;
Stats. 1963, chs. 237, 240.
OPINION
This matter is here on appeal from a district court order denying the applications of
Chenoweth and Mirin for a writ of mandate. Each had sought to compel the Clark County
Board of Commissioners to issue a county business license for the operation of a taxicab
business within the unincorporated area of Clark County.
business license for the operation of a taxicab business within the unincorporated area of
Clark County. The Board of County Commissioners had refused to issue the requested
licenses because neither of the applicants had first obtained a certificate of public
convenience and necessity from the Public Service Commission of Nevada, as required by
regulation of that commission, and the district court sustained its action for that reason.
1

At the hearing below Chenoweth and Mirin contended that the regulation was invalid as
having been enacted in excess of the commission's authority and in contravention of the
provisions of NRS 706.430(1) as it then existed. They make the same contentions here.
However, we refuse to rule because those issues have become moot. After entry of judgment
below, and while this appeal was being processed, the Nevada legislature enacted Stats. Nev.
1963, Chs. 237 and 420, pp. 402, 1107, respectively, requiring that all taxicab motor carriers
operating within Nevada must first apply for and receive a certificate of public convenience
and necessity. Therefore, the issues tendered below regarding the validity of Regulation No.
225 are no longer justifiable. Cf. Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271,
144 N.E. 579, 36 A.L.R. 1310.
Appeal dismissed.
____________________

1
The regulation, No. 225, provided: Taxicab, other passenger motor carriers transporting passengers outside
city limits must hold certificate of public convenience and necessity. Before its adoption on October 8, 1962,
Chenoweth and Mirin each had been issued a county business license on a quarterly basis. When renewals were
sought for the period commencing November 1, 1962, the county commissioners refused because of the recently
adopted Public Service Commission regulation.
____________
79 Nev. 406, 406 (1963) Whitley v. State
HERMAN FRANCIS WHITLEY, LOIS KERN, ROGER LEON GRAVES, and WILLIAM
D. EMBRY, Bail Bondsman, as Attorney in Fact for Cosmopolitan Insurance Company,
Appellants, v. STATE OF NEVADA, Respondent.
No. 4631
October 22, 1963 386 P.2d 93
Appeal from the Seventh Judicial District Court, Lincoln County; Jon R. Collins, Judge.
Prosecutions for burglaries. The trial court entered judgments of conviction from which
the defendants appealed. The Supreme Court, McNamee, J., held that the arrests of certain
defendants, without warrant, by police officers on ground that they were acquaintances of
persons suspected of having committed a felony were illegal, but evidence seized as incident
to valid arrest was admissible.
Judgments against appellants Whitley and Kern, the order denying their motion for
new trial reversed, and their cause remanded for new trial. Judgment against appellant
Graves affirmed. Appeal of appellant Embry dismissed.
Foley Brothers, of Las Vegas, for Appellants.
Harvey Dickerson, Attorney General, and Roscoe H. Wilkes, District Attorney, Lincoln
County, for Respondent.
1. Arrest.
Mere belief of arresting officer that person arrested is acquainted with person or persons suspected of
having committed a felony which has actually been committed does not establish reasonable cause for
arrest of such person without warrant. NRS 171.235.
2. Arrest; Criminal Law.
Arrests of defendants, without warrant, based on arresting officers' belief that the parties were acquainted
with persons suspected of having committed a felony were illegal, and evidence obtained during ensuing
search, without warrant, was not incident to legal arrest and was inadmissible. NRS 171.235.
3. Criminal Law; Searches and Seizures.
Permission by motel room occupants to search room in which they had been found by police officers,
even if given voluntarily, would not justify subsequent search of room and automobile
by other officers or authorize reception in evidence of articles seized during
subsequent search.
voluntarily, would not justify subsequent search of room and automobile by other officers or authorize
reception in evidence of articles seized during subsequent search.
4. Criminal Law.
Convictions based on introduction of illegally seized evidence must be reversed.
5. Arrest.
Arrests of defendants without warrants were proper where a felony had been committed and officers had
reason to believe that defendants answered description of suspects as given by persons in whom officers
had confidence, and search of automobile in which they were riding was valid as incident to arrest.
6. Criminal Law.
Articles legally seized from automobile as incident to lawful arrest, being material to charge for which
one defendant was being tried, were properly received in evidence.
7. Bail.
Bondsman who was stranger to criminal proceedings except as surety on bail bond was not entitled to
appeal from orders forfeiting bonds and denying motions to set aside forfeitures. NRS 177.060,
178.155, 178.160.
OPINION
On October 12, 1960, after dark, or on October 13th before daybreak, three business
houses in Caliente, Lincoln County, one of which was the Shamrock Club, were burglarized.
Upon discovery of the burglaries an investigation was conducted by county officials. They
ascertained the following facts:
Three strangers in a 1955 model Dodge sedan, two-toned green in color bearing a New
Mexico license plate, had been seen in Lincoln County on the afternoon and evening before
the burglaries. They had attempted to buy a gun at a service station. They were white, two
were younger men 20 to 25 years of age, one of whom was dark-complexioned and the other
of small stature. The third man was older. Two burglaries recently had taken place in McGill,
Nevada. The articles stolen in all five burglaries were ascertained including cash in the sum
of approximately $12,000. These articles consisted in part of a .22 caliber Hi-Standard pistol,
a cap and ball pistol (a relic), a hospital corpsman's ring of cheap silver, one imitation ruby
ring in a Tiffany setting, one gold ring with Fire Department badge on it with initials inside
"D.R.," one ring with a Roman's head engraved in a setting, an imitation diamond ring
with large stone in center with two small stones on each side, a Rotary past-president
ring, an Elgin wrist watch, shoes with rubber soles having a cross-ribbed design, vinyl
jackets, one of which was brown or orange in color and one steel gray.
one gold ring with Fire Department badge on it with initials inside D.R., one ring with a
Roman's head engraved in a setting, an imitation diamond ring with large stone in center with
two small stones on each side, a Rotary past-president ring, an Elgin wrist watch, shoes with
rubber soles having a cross-ribbed design, vinyl jackets, one of which was brown or orange in
color and one steel gray.
The results of this investigation were transmitted to the Las Vegas Police Department. Las
Vegas police officers Reed and Stopka, after receipt of this information and while patrolling
in Las Vegas on October 14, 1960, noticed a two-toned green 1955 Dodge sedan with New
Mexico plates parked in a parking lot of the Wittwer Motel on North Main Street in Las
Vegas. Two young men, later ascertained to be Denny and Graves, were observed to be
standing on the motel balcony at a position above the Dodge automobile near the door of
Room 44. Shortly afterwards these two men were observed driving the Dodge sedan out of
the Wittwer Motel parking lot proceeding northerly on North Main Street. The officers
caused the vehicle to stop.
1
Denny and Graves were ordered to step out of the vehicle. As
they did so a black sock on the floor of the automobile filled with coins was observed by the
officers. When the men opened their wallets to show their identifications each wallet was
seen to contain much currency in large denominations. At this time Officers Handlon and
Compton arrived. Neither suspect would give any information regarding the sock full of
coins. They were placed under arrest, a search was made of the trunk of the automobile,
wherein between the folds of a blanket was found a .22 caliber Hi-Standard pistol. The black
sock contained coins with wrappers, one wrapper marked Red Wing Specialty Company,
Caliente, Nevada. Handlon, who had been informed of the circumstances of the burglaries,
proceeded to the Wittwer Motel. He determined that the green Dodge was not the automobile
of any tenant there registered and that Denny and Graves were not tenants of the motel.
____________________

1
There is a dispute whether the suspects were violating a traffic law at the time. We consider this has no
significance.
tenants of the motel. Handlon then returned to the police station and ascertained that $858
had been taken from Denny and $528 from Graves and that Denny and Graves were staying at
the Normandie Motel. A key to a room in said motel was found on one of the prisoners.
Handlon, in the company of Officers Compton and DeWeert, then went to the Normandie
Motel on Las Vegas Boulevard South. They learned that Room 3 was occupied by Mr. Ted
Baird and two guest; whose registration card revealed that their automobile was a Dodge
sedan having a New Mexico license plate bearing the number of the car then being held at the
police station. The officers proceeded to Room 3, knocked on the door several times, and
when no one answered the key was placed in the lock and the door opened. They found D. W.
Black lying on the bed. After receiving Black's consent a search was made of the room. In
this connection, the consent was given while each of the officers was bearing a gun more or
less exposed.
2
The search revealed the following objects: A ring fitting the description of
one of the rings that had been stolen, a pair of boots and a pair of oxfords, both of which had
rubber soles with a cross-ribbed design, two antennas, two microphones, two new vinyl
jackets, a sock containing 99 dimes and a sock containing 101 nickels, a gun holster, and
some white cotton gloves. Black was placed under arrest. Handlon returned to the police
station where he received a phone call from the Wittwer Motel that Denny and Graves, when
at the motel, had been visiting Room 44. Another phone call from the Normandie Motel
advised Handlon that a call had come from Room 44 of the Wittwer Motel to Room 3 of the
Normandie Motel. Thereupon Handlon with Compton and DeWeert proceeded to the Wittwer
Motel where they knocked on the door of Room 44. They were permitted to enter the room by
the wife of Denny. They entered the room with their sidearms drawn. Herman Whitley was
lying on the bed. Permission was given by Whitley to search the room. Through the open
door of the closet two new vinyl jackets could be seen, one steel gray and the other burnt
orange or mustard in color.
____________________

2
Black testified at his trial that he was afraid to refuse consent.
orange or mustard in color. On a chest of drawers was a piece of paper on which was written
Normandie Motel, Room 3, South Las Vegas Street. Also in plain view was a purchaser's
receipt of a cashier's check in the sum of $1,000. A cap and ball pistol was found in a
suitcase. A black sock identical to the one found in the Dodge containing $124.28 in
miscellaneous coins also was found. Whitley and Mrs. Denny were arrested and taken to the
police station where Mrs. Denny was later released. A second call from the Wittwer Motel
was received advising that there was a lady in Room 44. Officers proceeded there where they
were admitted by Lois Kern (Whitley).
3
Mrs. Kern was arrested.
After all of said persons had been arrested, Lincoln County authorities were notified and
they proceeded at once to Las Vegas. A further search was conducted in Room 3 of the
Normandie Motel which revealed a Roi-Tan cigar box lid and a new pair of men's argyle
socks with a Gottfredson's Department Store
4
price tag affixed to same. They then further
searched Room 44 of the Wittwer Motel where further items of evidence were picked up. The
car being used by Whitley and Lois Kern, a tan Oldsmobile, was also searched and it revealed
a sledge hammer, a 3/8-inch punch, two battery-powered radio transceivers, a pair of leather
boots with ribbed soles, a pair of tan leather gloves, and a Roi-Tan cigar box without a lid.
No warrant of arrest had been issued prior to the arrest of any of the five persons. No
search warrant had been issued prior to the seizure of the articles later offered in evidence
during the trials.
Two trials were required because on June 19, 1961, at the time of the commencement of
the trial of Whitley, Kern, and Black, defendants Denny and Graves had absconded while at
liberty under bail. After their apprehension and on August 20, 1962, their trial took place. All
defendants in the two trials were found guilty. The defendants were tried for the burglary of
the Shamrock Club only.
____________________

3
She married defendant Whitley after her arrest.

4
One of the places burglarized in Caliente.
Black did not appeal from his conviction. Denny, after appealing, dismissed his appeal.
Thus we are concerned only with the appeal taken by Whitley and his wife, Lois Kern, from
the judgments against them and from the order denying their motion for new trial, the appeal
of Graves from the judgment, and the appeal of Embry, the bail bondsman.
Eight errors are assigned relating to the appeals of Whitley, Kern, and Graves. They all
pertain to their arrests and the subsequent searches and seizures of the evidence without
warrants either for arrest or for search.
On the first day of the Whitley-Kern-Black trial, the case of Mapp v. Ohio, 367 U.S. 643,
81 S.Ct. 1684, 6 L.Ed.2d 1081, was decided. Counsel and the trial judge later learned of this
decision. If the evidence admitted at this trial was procured by means of an illegal search and
seizure the convictions of Whitley and Kern must be reversed.
The information given by the Lincoln County authorities to the Las Vegas Police
Department, aside from a description of the stolen articles, related only to three persons
similar in appearance to Denny, Graves, and Black, and to the Dodge automobile in which
they had been riding in Lincoln County. The arrest of Whitley and later of Kern without any
warrant occurred when the arresting officers had no information that either of these appellants
had been involved in the burglary of the Shamrock Club.
NRS 171.235 provides in part that a peace officer may without a warrant arrest a person
when a felony has in fact been committed, and he has reasonable cause for believing the
person arrested to have committed it.
The felony with which these defendants were charged had in fact been committed. At the
time of their arrest, however, the only cause for believing that they might have been parties to
the commission of the felony was the belief of the arresting officers that these parties were
acquainted with Denny, Graves, and Black. Mrs. Denny likewise was arrested without a
warrant, but was released when it was ascertained that she had just arrived in Las Vegas from
New Mexico.
[Headnotes 1-4]
When a person is arrested without a warrant for his arrest upon the mere belief of the
arresting officers that he is acquainted with the person or persons suspected of committing a
felony which actually has been committed, a reasonable cause as required by NRS 171.235
for believing that the person arrested participated in the commission of the felony is not
established. People v. Privett, 55 Cal.2d 698, 12 Cal.Rptr. 874, 361 P.2d 602; People v.
Kitchens, 46 Cal.2d 260, 294 P.2d 17. The arrests therefore of Whitley and Kern were illegal
and the evidence obtained thereafter during a search without a warrant, not being incident to a
legal arrest, is inadmissible. People v. Michelson, 30 Cal.Rptr. 18, 380 P.2d 658.
5
Evidence
to the effect that Black and Whitley gave the officers permission to search the rooms in which
they were found, even if given voluntarily, would not justify the subsequent searches of the
rooms and of the Oldsmobile automobile by the Lincoln County authorities or authorize the
reception in evidence of articles seized during such subsequent searches. People v. Wilson,
145 Cal.App.2d 1, 301 P.2d 974. Under the decision of Mapp, a conviction based thereon
must be reversed.
[Headnote 5]
In our opinion, the arrests of Graves and Denny without a warrant were proper, because a
felony had in fact been committed, a description of the suspects had been given to the
arresting officers by persons in whom they had confidence, and the officers had reason to
believe that Graves and Denny from the appearance of each were two of the three persons
who had been described to them as being involved in the burglary. These arrests being legal
without any warrant of arrest, the officers were empowered to search the immediate premises,
in this instance the Dodge automobile. Wyatt v. State, 77 Nev. 490, 367 P.2d 104.
____________________

5
The cases of Terrano v. State, 59 Nev. 247, 91 P.2d 67; State v. Chin Gim, 47 Nev. 431, 224 P. 798; and Ex
parte Rankin, 45 Nev. 173, 199 P. 474, in so far as they are inconsistent with this conclusion, are expressly
overruled.
[Headnote 6]
The only exhibits received in evidence during the trial of Graves were the articles taken
from the Dodge automobile at the time of Graves' arrest, and these articles were part of the
property taken during the burglary of the Shamrock Club. These articles being material to the
charge for which Graves was being tried and not having been seized illegally were properly
received as evidence. People v. Lopez, 32 Cal.Rptr. 424, 384 P.2d 16; People v. Hammond,
54 Cal.2d 846, 9 Cal.Rptr. 233, 357 P.2d 289.
[Headnote 7]
The appeal of Embry is from the order of January 4, 1962, which forfeited the bail bonds
of Graves and Denny and from the order of March 28, 1962, denying the motion to set aside
these bail forfeitures. No error has been assigned with respect to this appeal. Without
deciding whether such orders are appealable and, if so, whether the lower court erred in
making either order, we have concluded that the appeal of Embry must be dismissed.
NRS 178.155 provides that if at any time within 90 days after a forfeiture of bail has taken
place the defendant or his bail appear and satisfactorily excuse his neglect, the court may
direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as
may be just. Embry construes this section as empowering him to appeal the lower court's
refusal to set aside a forfeiture. The necessity for empowering a bail to appear and
satisfactorily excuse his neglect is obvious. In perhaps most cases the defendant is not
available and the bail should be afforded the opportunity of presenting an excuse for the
nonappearance of the defendant. Embry however was a stranger to the criminal proceedings
below except as a surety on the bail bonds. He was not a party at either trial.
NRS 177.060 provides for an appeal only by an aggrieved party, whether that party be the
state or the defendant. The parties aggrieved by these rulings of the lower court pertaining to
bail were Graves and Denny, because of their eventual liability to Embry resulting from
forfeiture in the event the district attorney pursuant to NRS 17S.160 successfully
proceeds by action against Embry upon the bonds.
Denny, because of their eventual liability to Embry resulting from forfeiture in the event the
district attorney pursuant to NRS 178.160 successfully proceeds by action against Embry
upon the bonds. In such a civil action Embry would be a party entitled to present any defense
he might have. If unsuccessful in the trial court, he then would be entitled to appeal from the
final judgment as a party aggrieved pursuant to NRCP 72(a). In the present proceedings
Embry is not an aggrieved party within the meaning of NRS 177.060.
The judgments against appellants Whitley and Kern and the order denying their motion for
new trial are reversed, and their cause is remanded for a new trial. Judgment against appellant
Graves is affirmed. Appeal of appellant Embry is dismissed.
____________
79 Nev. 414, 414 (1963) Swisco, Inc. v. District Court
STATE OF NEVADA Ex Rel. SWISCO, INC., a Nevada Corporation, Petitioner, v.
SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the
COUNTY OF WASHOE, Department Number 3 Thereof, Respondent.
No. 4670
October 22, 1963 385 P.2d 772
Original petition to this court for a writ of mandamus.
Petition for a writ commanding a court to vacate its order dismissing an action on ground
of forum non conveniens. The Supreme Court, Badt, C. J., held that dismissal of an action on
a note against a resident corporation, on ground of forum non conveniens, was improper
where there was no showing that inconvenience, hardship, vexation or oppression would
result if defendant were compelled to defend the action, and plaintiff was a state
corporation, even if its directors and officers resided outside of the state.
defendant were compelled to defend the action, and plaintiff was a state corporation, even if
its directors and officers resided outside of the state.
Petition granted.
[Rehearing denied November 12, 1963]
Sinai & Sinai, of Reno, for Petitioner.
Boyce, Murphy & McDowell, of Sioux Falls, South Dakota, on the briefs for Petitioner.
Vargas, Dillon, Bartlett & Dixon and Robert A. Groves, all of Reno, for Respondent.
1. Mandamus.
If a district court wrongfully or erroneously divests itself of jurisdiction, or refuses to assume jurisdiction,
mandamus is the proper remedy. Const. art. 6, 6.
2. Courts.
Dismissal of an action on a note against a resident corporation, on ground of forum non conveniens, was
improper where there was no showing that inconvenience, hardship, vexation or oppression would result if
defendant were compelled to defend the action, and plaintiff was a state corporation, even if its directors
and officers resided outside of the state.
OPINION
This is an original petition filed in this court seeking a writ of mandamus commanding the
respondent court to vacate its order dismissing without prejudice, on the ground of forum non
conveniens, an action commenced by petitioner, as plaintiff, against Bluhill Nevada, Inc., as
defendant, for judgment on a promissory note executed by said defendant. Respondent filed a
Return and Answer in which it admitted the commencement of said action in respondent
court, that said action was brought to obtain judgment on a promissory note alleged to be due,
owing, and unpaid; that plaintiff and defendant in said action are both corporations organized
and existing under and by virtue of the laws of the State of Nevada; that both
corporations are in good standing and qualified to do business in the State of Nevada;
that summons and complaint were duly served upon Bluhill Nevada, Inc., in the State of
Nevada; that Bluhill Nevada, Inc.,
existing under and by virtue of the laws of the State of Nevada; that both corporations are in
good standing and qualified to do business in the State of Nevada; that summons and
complaint were duly served upon Bluhill Nevada, Inc., in the State of Nevada; that Bluhill
Nevada, Inc., filed in said action a motion to dismiss the same, in substance, upon the ground
that the State of Nevada was an inconvenient forum for determining the merits of said action;
that said petition was supported by the affidavit of one Richard E. Newman and that
counter-affidavits had been filed by one Edgar J. Schoen and Lester M. Eiseman; that said
motion to dismiss was submitted to the respondent court upon the affidavits and upon oral
and written arguments and points and authorities of counsel; and that on August 12, 1963,
respondent court entered its order granting Bluhill's motion to dismiss; and that said exhibits,
together with memoranda of points and authorities, constitute the entire record upon which
respondent based its decision to grant said motion to dismiss and to refuse to exercise
jurisdiction to determine said pending action; and that respondent's order dismissing said
action is a final order from which an appeal might be taken.
Respondent denied the allegation that there is no plain, speedy, and adequate remedy
available to petitioner other than by application for mandamus, and denied, on the ground that
it was without knowledge or information sufficient to form a belief, the allegations that
Bluhill is conducting its business at a substantial and consistent loss and greatly prejudicial
to the interests of its creditors and that fair cash value of all of its assets is less than the total
of its obligations; and in this respect alleged, on the same ground, that Bluhill Nevada, Inc., is
solvent, has been conducting its business at a steady and consistent profit throughout the year
1963 and that its financial condition is now, and throughout the year 1963 has been, steadily
improving; and denied that the remedy of appeal is inadequate for the reasons stated in the
petition and denies that petitioner's rights will be irreparably injured by further depletion and
diminution of the assets of Bluhill, admits that respondent has jurisdiction of the parties
and the subject matter of the pending civil action and has power and authority under the
constitution and statutes of Nevada to hear and determine the same; but alleges that
respondent has full and complete power and authority, in its sound discretion, to decline
to exercise such jurisdiction upon the ground set forth in the motion to dismiss.
and diminution of the assets of Bluhill, admits that respondent has jurisdiction of the parties
and the subject matter of the pending civil action and has power and authority under the
constitution and statutes of Nevada to hear and determine the same; but alleges that
respondent has full and complete power and authority, in its sound discretion, to decline to
exercise such jurisdiction upon the ground set forth in the motion to dismiss.
As affirmative defenses, respondent asserted (1) that the petition does not state facts to
entitle petitioner to a writ of mandamus in failing to show that respondent has neglected or
refused to perform any act specifically enjoined on it as a duty resulting from its office; (2) in
that it fails to show that respondent excluded petitioner from the use or enjoyment of a private
right to which it is entitled; (3) that petitioner has a plain, speedy, and adequate remedy in the
course of law by appeal; and (4) that the making and entering of the order of dismissal
without prejudice by respondent was a matter wholly within the sound discretion of
respondent.
[Headnote 1]
(1) We first dispose of the contention of respondent that the granting of its order of
dismissal was in the exercise of its sound discretion and thus is not subject to review by
mandamus. It refers to the many holdings of this court that mandamus will lie only when
there is a plain, statutory, mandatory provision of law commanding the act to be done. This is
simply disposed of by reference to Article 6, section 6 of the state constitution vesting
original jurisdiction in the district courts in all cases in equity and, inter alia, in all other cases
in which the demand exceeds $300. McCarran, J., speaking for the court in Floyd v. District
Court, 36 Nev. 349, 354, 135 P. 922, 924, 4 A.L.R. 646, said: This constitutional grant of
jurisdiction is also a prescription that the district court must assume * * * jurisdiction * * *
But it is further said that the respondent court did assume jurisdiction in entertaining the
motion to dismiss and that the respondent so conceded by opposing the motion to dismiss.
the motion to dismiss. Respondent properly responds (1) that it opposed the motion to
dismiss on the same grounds as raised here, namely, that respondent could not lawfully refuse
to accept jurisdiction and, if it could be claimed that it granted the motion to dismiss in the
exercise of its jurisdiction, it was an abuse of such exercise. That petitioner's position thus
taken is justified will appear from the discussion that follows.
Respondent's chief attack on the availability of mandamus in the premises, however, is
based upon its attempt to reconcile early cases in this court and distinguish later cases which
have definitely sustained the remedy in similar situations. It is true that the cases of State ex
rel. Treadway v. Wright, 4 Nev. 119, Andrews v. Cook, 28 Nev. 265, 81 P. 303, and
Breckenridge v. Lamb, 34 Nev. 275, 118 P. 687, would support respondent's contention, but
Floyd v. District Court specifically and expressly overruled these cases. In overruling the
earlier Nevada cases the court in Floyd said: In a case where the district court takes
jurisdiction and acts, its acts will not be subject to review by a writ of mandate, but where
such tribunal refuses to take jurisdiction at all, when by law it ought to do so, or where having
obtained jurisdiction it refuses to proceed in its exercise, mandamus is the proper remedy.
Errors committed in the exercise of judicial discretion cannot be made the subject of review,
nor can they be corrected by a writ of mandamus, but where a district court erroneously
decides that it has no jurisdiction, the writ of mandamus is the proper remedy to compel that
tribunal to do that which the law prescribes it should doassume jurisdiction and proceed
with the cause. * * * While it may be said that in cases of this character the lower court had
jurisdiction to grant or deny a motion to dismiss, nevertheless that court could not refuse to
hear a matter upon its merits when it was regularly before it for that purpose, nor could it
divest itself of jurisdiction by an erroneous order * * *.
In State ex rel. Howe v. Moran, District Judge, 37 Nev. 404, 142 P.
Nev. 404, 142 P. 534, an original proceeding in mandamus, the plaintiff below sued the
defendant for a divorce. She counterclaimed for a divorce, relying on his residence for
compliance with the statutory requirements for residence. At the time set for trial he
abandoned his suit and the trial court refused to let the defendant proceed with her
counterclaim and dismissed the action. She filed an original proceeding in this court in
mandamus. It was the contention of respondent court that mandamus would not lie. This
court said, citing Floyd: This court, however, has settled that question to the effect that
where the district court wrongfully or erroneously divests itself of jurisdiction, or refuses to
assume jurisdiction, mandamus is the proper remedy.
In LaGue v. District Court, 68 Nev. 125, 227 P.2d 436, 229 P.2d 162, on motion, the
district court quashed service of summons and refused to take jurisdiction of the action. An
original proceeding in mandamus was then filed in this court where we said: The granting of
the motion to quash in the present case was just as effective as the dismissal of the appeal in
the Floyd case. Here, as there, the court divested itself of jurisdiction by an erroneous order.
On the petition for rehearing this court said: While the availability of a remedy by appeal
may be taken into consideration in determining the propriety of granting a writ of mandamus,
it is not jurisdictional. It should also be noted that in State v. Moran, supra, a remedy by
appeal existed.
Respondent attempts to distinguish Floyd and LaGue. LaGue followed the reasoning of
Floyd and was decided on the authority of the Floyd opinion. Reference is made to the main
opinion of McCarran, J., and to the concurring opinion of Norcross, J., in that case, and to the
repeated expressions by those two eminent jurists amplifying our quotations from those cases
set forth above.
1
Whatever travail this court and the courts of other jurisdictions have
gone through, the law in this state must be considered as settled.
____________________

1
For recent cases in other jurisdictions cf. Bank of America National T. & S. Association v. Superior Court,
22 Cal.App.2d 450, 71 P.2d 296; Bosworth v. Superior Court, 143 Cal.App.2d 775, 300 P.2d 155; United States
v. Byers, District Judge, 2 Cir., 144 F.2d 455; Larsen v. Switzer, District Judge, 8 Cir., 183 F.2d 850; Federal
Savings and Loan v. Reeves, 8 Cir., 148 F.2d 731.
Whatever travail this court and the courts of other jurisdictions have gone through, the law
in this state must be considered as settled.
[Headnote 2]
(2) The learned briefs of counsel have traced the history and development of the
application of the equitable remedy of forum non conveniens, its adoption in many courts in
the United States, its rejection by some courts, and that Nevada is at liberty to accept or reject
the doctrine. We find it unnecessary to pass on this question, for, assuming for the sake of
argument that this court would in a proper case accept and apply the doctrine, the record will
not support its application. The motion to dismiss on the ground of forum non conveniens is
supported by the affidavit of the president of the defendant corporation, which states that
defendant Bluhill was qualified to do business as a foreign corporation in the State of
Colorado; that its manufacturing plant, books, records, and principal activities are all located
and conducted in Colorado, and that it has no plant or office facilities other than in Colorado;
that all of the directors and officers reside in Colorado; that the note which is the subject of
the complaint was executed and delivered to the original payee in the State of Colorado; that
all of the acts and transactions complained of in the complaint occurred in Colorado; that the
corporation's accountants and those most familiar with the books, records, and financial
conditions of Bluhill reside in Colorado; that all of the directors and officers of Swisco, Inc.,
reside outside of the State of Nevada, and that Swisco is not and never has been engaged in
business in Nevada.
As to the allegations respecting the execution of the note, it should be noted that it is dated
as at Chicago, Illinois, and that it is payable at a specific address in Chicago, Illinois, or
such other place as the legal holder thereof may in writing appoint. As a matter of fact, the
affidavit of Lester M. Eiseman, president of Swisco, recites that all payments made by Bluhill
on account of principal and interest on the note in question, from November 27, 1962, to date
of suit, were made by Bluhill to Swisco in Sioux Falls, South Dakota.
to Swisco in Sioux Falls, South Dakota. The affidavit must be examined in order to determine
the precise inconvenience, hardship, vexatiousness, or oppression that would result if
defendant were compelled to defend the action within the jurisdiction. We are satisfied that
the affidavit is entirely lacking in disclosing the necessary facts. In Mooney v. Denver &
R.G.W.R. Co., 118 Utah 300, 221 P.2d 628, an F.E.L.A. case, the facts stated were far more
extensive than those stated here, but the court reversed the order of dismissal made upon the
ground of forum non conveniens. There it was shown that it might be necessary for the
defendant to call 10 witnesses. Here no number of witnesses is given and there, as here, the
names, residences, and substance of the testimony of witnesses were not given, nor was there
recited the necessity for their presence. It was there claimed that a view of the premises could
not be had by the jury unless the trial were held in Colorado but the court pointed out that no
such circumstance could arise in the case. It was stated there that it would cost approximately
$1,500 for the defendant company to try the case in the forum, but it did not appear how the
amount was arrived at, nor how much it would cost if the case were removed. Here, nothing
is said factually in this regard. In the case at bar, as to the books and records, nothing is
shown with reference to hardship in bringing them to the forum or in supplying copies. What
the officers, directors, and accountants would testify to is not indicated, nor is any reason
given why their testimony could not be presented in depositions. The statement that the
directors and officers of Swisco reside out of the State of Nevada and that it is not engaged in
business in the State of Nevada is without material significance. Swisco, Inc., was
incorporated within the State of Nevada, is a citizen and resident thereof, and entitled to seek
justice in its courts.
In Mooney, supra, the court said:
Granting discretionary power in the trial court to dismiss the cause for reasons of
inconvenience, the power should only be exercised in exceptional circumstances and when an
adequate showing has been made that the interests of justice require a trial in a more
convenient forum.
that the interests of justice require a trial in a more convenient forum. The mere fact that
another court is more convenient for one party is not sufficient to justify a refusal to act, as
any party who is a nonresident or foreign corporation can always show some good reason
why a trial of the action is not convenient. The closing of the courts of this state to this
plaintiff results in limiting what he considers a substantial right granted unto him. By doing
so, the court acts against what plaintiff believes to be his best interests as the cause would not
be instituted in this jurisdiction unless he believed he could obtain a more favorable judgment
than if he were required to litigate his case in another or different forum; and the defendant
would not make the motion unless it believed a less liberal jury could be secured in the other
forum as the amount of present day verdicts make the amount of costs fade into
insignificance. * * * Only when the factors which establish there is real imposition on our
jurisdiction weigh strongly in favor of the defendant should the trial court deny to the plaintiff
his choice of forum.
That court also referred to another important factor not disclosed by the affidavit. It said:
Another desirable factor which might be considered by a court in determining whether or not
to exercise its discretion and dismiss a case is the condition of the court calendar of the
jurisdiction which may subsequently be required to hear the cause. There is a total lack of
evidence to establish this factor. We are entirely unadvised as to the condition of the calendar
in the federal and state courts of Denver, and, while we cast no reflection on their condition,
it might be that the plaintiff in this action would be required to wait an unreasonable length of
time before his case would be brought to issue in that jurisdiction. The evidence as to this is
readily available and could have been presented to the trial court. It hardly comports with our
understanding of convenience to require a litigant to institute his suit in a jurisdiction where it
might be many months before he can obtain any redress.
The reasoning of the Utah court is reasonable and convincing, and this court is disposed to
a like conclusion.
It is ordered that a peremptory writ issue directing that the respondent court entertain
jurisdiction of the cause. The case is hereby remanded for further proceedings in accordance
with this opinion.
McNamee, J., and Waters, D. J., concur.
Thompson, J., being disqualified, the Governor commissioned Honorable Richard L.
Waters, Judge of the First Judicial District Court, to sit in his place.
____________
79 Nev. 423, 423 (1963) Security Nat'l Bank v. McColl
SECURITY NATIONAL BANK OF RENO, Guardian of the Estate of Defendant, DALE
EUGENE SOLLARS, an Insane Person, Appellant, v. JEFF McCOLL and MARGARET
JEAN McCOLL, Husband and Wife, Respondents.
No. 4615
October 28, 1963 385 P.2d 825
Appeal from order of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge, denying motion to discharge attachment.
Action presenting question as to whether bank funds on deposit to the credit of a guardian
for the estate of an insane person were subject to attachment on claims of creditors. From an
order of the lower court denying a motion to discharge the attachment, the guardian appealed.
The Supreme Court, Badt, C. J., held that under federal statute providing that payments to a
beneficiary under any law administered by Veterans' Administration shall be exempt from
attachment, funds in a cash savings account, which were held by guardian for benefit of ward,
who was insane, and which came from payments to guardian by Veterans' Administration and
could be withdrawn upon demand for use of incompetent, were exempt from attachment
on claims of creditors.
could be withdrawn upon demand for use of incompetent, were exempt from attachment on
claims of creditors.
Reversed.
Morse & Graves, of Las Vegas, and Woodburn, Forman, Wedge, Blakey, Folsom and Hug,
of Reno, for Appellant.
Foley Brothers, of Las Vegas, for Respondents.
W. H. MacDonald, of Reno, Amicus Curiae.
Exemptions.
Under federal statute providing that payments to beneficiary under any law administered by Veterans'
Administration shall be exempt from attachment, funds in a cash savings account, which were held by
guardian for benefit of ward, who was insane, and which came from payments to guardian by Veterans'
Administration and could be withdrawn upon demand for use of incompetent, were exempt from
attachment on claims of creditors. 38 U.S.C.A. 3101.
OPINION
Appellant presents two matters for determination: (1) whether bank funds on deposit to the
credit of Security National Bank of Reno as the duly appointed guardian of the estate of Dale
Eugene Sollars, an insane person, by order of the Second Judicial District Court, Washoe
County, Nevada, are in custodia legis and thus exempt from attachment issuing out of the
Eighth Judicial District Court, Clark County, Nevada; and (2) whether such funds are exempt
from attachment on claims of creditors by reason of the provisions of 3101, Title 38,
U.S.C., being a portion of Chapter 53, entitled Special Provisions Relating to [Veterans']
Benefits. As a reversal must follow by reason of the exemption created by the federal act
under the second question presented, it is unnecessary to determine the first question.
On October 15, 1953, Sollars shot and severely injured Margaret McColl. On December
11, 1953, Sollars was committed to Nevada State Hospital for Mental Diseases. On April 9,
1954, the appellant bank was appointed guardian of his estate by order of the Second Judicial
District Court, Washoe County, Nevada. On October 13, 1955, Jeff and Margaret McColl,
husband and wife, filed a complaint in the Eighth Judicial District Court, Clark County,
Nevada, against several defendants, including Security National Bank of Reno as guardian of
the estate of Sollars, an insane person. The guardian bank was duly served, and filed its
answer. On August 11, 1960, plaintiffs attached funds held by the guardian bank for the
benefit of Sollars and which were on deposit in appellant's bank. These funds comprised in
their entirety payments paid to the guardian by the Veterans' Administration, plus a small
amount of accrued interest. The balance at the time of attachment was in the sum of
$5,600.48. The present appeal is from the Clark County court's denial of the guardian's
motion to discharge the attachment. The pertinent portion of the federal act reads as follows:
3101. Nonassignability and exempt status of benefits.
(a) Payments of benefits due or to become due under any law administered by the
Veterans' Administration shall not be assignable except to the extent specifically authorized
by law, and such payments made to, or on account of, a beneficiary shall be exempt from
taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment,
levy, or seizure by or under any legal or equitable process whatever, either before or after
receipt by the beneficiary. The preceding sentence shall not apply to claims of the United
States arising under such laws nor shall the exemption therein contained as to taxation extend
to any property purchased in part or wholly out of such payments.
The funds in question, against which the attachment was levied, were maintained by the
guardian bank in a cash savings account from which the funds could have been and actually
have been withdrawn upon demand for the use of the incompetent. A transcript of such
account shows a number of such withdrawals.
account shows a number of such withdrawals. It also appears that since the date of the service
of the attachment no funds have been paid to the Nevada State Hospital for the care and
subsistence of the incompetent, and that as of January 31, 1962, there was due and payable to
the hospital for such care and subsistence the sum of $2,190.71.
Appellant cites to us in support of its appeal Porter v. Aetna Casualty and Surety Co., 370
U.S. 159, 82 S.Ct. 1231, 8 L.Ed.2d 407, decided June 11, 1962. In that case United States
District Court for the District of Columbia held the fund exempt under 38 U.S.C. 3101(a).
The Court of Appeals for the District of Columbia reversed, but the Supreme Court, on
certiorari, reversed and held the funds exempt.
Porter v. Aetna Casualty and Surety Co. is a complete answer to respondents' contention
that deposits in an interest-bearing savings account are investments and are thus not subject to
the exemption under the provision that the exemption shall not extend to any property
purchased in part or wholly out of such payments.' The court referred to Lawrence v. Shaw,
300 U.S. 245, 57 S.Ct. 443, 81 L.Ed. 623, 108 A.L.R. 1102, for support of its holding,
defining the test to be whether as so deposited the benefits remain subject to demand and use
as the needs of the veteran for support and maintenance required. Lawrence v. Shaw also
held that the allowance of interest on such deposits would not destroy the exemption.
Respondents seek to distinguish Porter because the judgment against the veteran was there
based on contract, while the present judgment was based on tort. They cite sundry text
discussions in which such distinction is made and cases where there is a distinction
recognized under special statutes. They have no significance here. The federal statute
specifically excepts certain claims against which the exemption does not apply. Respondents
would inject into the statute an additional exception. This cannot be done.
Respondents further seek an analogy with the bankruptcy law which provides that the
liability upon an award of a judgment for punitive damages (which is in part the case here)
is a liability of the debtor which cannot be discharged in bankruptcy.
part the case here) is a liability of the debtor which cannot be discharged in bankruptcy. This
appears to be largely the basis of the decision by the court below in which the learned judge
stated: The court is impressed with the authorities presented by counsel for plaintiffs to the
effect that this obligation is one which could not be discharged in bankruptcy. By the very
nature of the claim it appears that the defendant, Dale Eugene Sollars, committed a willful act
against one or both of the plaintiffs in this action for which the plaintiffs recovered judgment.
It would appear logical to the court that the defendant should not be permitted to accumulate
funds from whatever source they may come, whether they be by reason of the Veterans'
Administration or any other source over and above his immediate needs. The learned district
judge then notes that the State of Nevada would take over such obligations as are necessary
for the veteran's support and maintenance in the Nevada State Hospital. However, such
application of logic cannot destroy the exemptions of the federal act, nor can it suffice to
transfer the liability for the veteran's support to the state, against the provisions of the federal
statute as construed by the United States Supreme Court which make the funds subject to use
for the veteran's needs, nor to deplete the exempt funds and prevent their being applied to the
costs of administration of the guardian's estate and payment of the fees to the guardian and its
attorney. The asserted analogy to the bankruptcy laws is without point here.
Respondents rely on Carrier v. Bryant, 306 U.S. 545, 59 S.Ct. 707, 83 L.Ed. 976(1939).
Such case was decided two years after Lawrence v. Shaw, supra, and was to the effect that
negotiable notes and United States bonds purchased with veterans' benefits and held as
investments had no federal statutory immunity. But it was with reference to and full
cognizance of both Lawrence and Carrier that Porter was determined.
Respondents also rely on Hale v. Gravallese, 340 Mass. 722, 166 N.E.2d 557 (1960).
There, relying on In re Bowen, 141 Ohio St. 602, 49 N.E.2d 753, the Massachusetts court
held that a checking account is subject to the exemption but that savings accounts * * * are
not."
not. The Ohio holding was made by the extension of the rule of Carrier v. Bryant (that
investment in the form of negotiable notes and United States bonds were not exempt) to
savings accounts. These cases we are compelled to reject. Porter v. Aetna Casualty and Surety
Co., supra.
The order appealed from is reversed, with costs, and the case remanded with directions to
the district court to enter an order granting the motion to quash the writ.
McNamee, J., and Barrett, D. J., concur.
Thompson, J., being disqualified, the Governor commissioned Honorable John W. Barrett,
Judge of the Second Judicial District Court, to sit in his place.
____________
79 Nev. 428, 428 (1963) Continental Casualty Co. v. Farnow
CONTINENTAL CASUALTY COMPANY, a Corporation, Appellant, v. H. D. FARNOW
and W. J. MOORE, JR., Respondents.
No. 4619
October 30, 1963 386 P.2d 90
Marshall, Judge.
Action by surety on completion bonds for construction contracts to recover on agreement
by defendants to indemnify surety against loss. The trial court entered judgment for
defendants and an order denying plaintiff's motion for new trial, and plaintiff appealed. The
Supreme Court, Badt, C. J., held that under terms of indemnity agreement and agreement
between contractor and surety, indemnitors had no such interest in or control over portion of
contract price retained by mortgagee pending expiration of statutory period for filing material
and labor liens as would make consent by indemnitors to payment of portion of contract price
thus retained to surety upon failure of contractor to satisfy certain material and labor liens a
consideration for any agreement by surety to discharge indemnitors from liability.
agreement by surety to discharge indemnitors from liability.
Reversed.
Hawkins, Cannon & Hawkins, of Las Vegas, and Robert E. Jones, of Los Angeles, for
Appellant.
Morse & Graves, of Las Vegas, for Respondents.
1. Principal and Surety.
Under terms of agreement between contractor and surety on completion bonds for construction contracts
and agreement by third parties to indemnify surety against loss, indemnitors had no such interest in or
control over portion of contract price retained by mortgagee pending expiration of statutory period for
filing material and labor liens as would make consent of indemnitors to payment of portion of contract
price thus retained to surety upon default by contractor a consideration for any agreement by surety to
discharge indemnitors from liability.
Under terms of agreement between contractor and surety on completion bonds, all right to portion of
contract price retained by mortgagee pending expiration of statutory period for filing material and labor
liens passed to surety upon completion of contract and failure of contractor to satisfy such liens.
In absence of consideration for alleged discharge of indemnitors from liability under agreement to
indemnify surety on contractor's completion bonds against loss, surety was entitled to judgment against
indemnitors for amount paid by surety to satisfy material and labor liens, less credit for portion of contract
price retained by mortgagee and turned over to surety to be applied on such liens, with interest on amount
paid by surety from date of notice to indemnitors of payment of liens and reasonable attorney's fees.
OPINION
This action was commenced by appellant in the court below to recover a sum of money
from respondents upon a contract of indemnity executed by respondents indemnifying
appellant against loss by reason of its completion bonds for the performance of certain
construction contracts.
[Headnote 1]
We determine in this case that as a matter of law, indemnitors indemnifying against loss
the surety on a completion bond upon a construction contract had no such interest in or
control over a retent held by a bank-mortgagee, pending expiration of statutory period for
filing material and labor liens, as to make their consent to the payment of such retent to the
surety a consideration for the surety's agreement to discharge the indemnitors from liability.
Phil Shipley and Associates, Inc., owner of a tract of land in Las Vegas, Clark County,
entered into two contracts with Curlett Construction Company for the construction of a group
of structures. The aggregate of the construction bonds was $541,100. The project was
financed by a Las Vegas bank. Neither the construction contract nor the financing contract is
contained in the record on appeal. However, uncontroverted statements contained in the briefs
of the parties sufficiently indicate the particular provisions that are here involved. An
indemnity bond was required, insuring the completion of the construction and the payment of
all labor and material bills. Continental Casualty Company, appellant herein, executed such
bond, in consideration of the execution of an indemnity contract by Farnow and Moore,
respondents herein, indemnifying Continental against loss on its completion bond.
Curlett Construction Company completed its construction. Nothing in the case indicates
any lack of complete performance other than failure to satisfy a group of liens of laborers and
material men, identified for the most part as subcontractors. Curlett was financially unable to
pay these claims. At this juncture the sum of $12,600 was still held by the bank as a retent
against the expiration of the time when liens for labor and materials might be filed against the
property. There can be no doubt that if all labor and materials claims had been paid and no
further liens could be legally or effectively filed, Curlett would have been entitled to the
money. This, however, was not the case. Curlett's own bookkeeper and accountant submitted
a list of bills for labor and materials which were still unpaid.
The surety company (appellant) was requested to come to Las Vegas and do something
about it. Its attorney came to Las Vegas, appraised the situation, and paid these bills. The
accountant's list and the canceled checks were in evidence. The bills were paid by the delivery
of such checks on July 19, 1951.
There had been a meeting the day before, attended by most of the interested parties and
some of their respective attorneys concerning the situation. Many pages of the record are
taken up with a discussion of just what occurred at that meeting. It is contended by
respondents that at such meeting they were discharged from their liability as indemnitors in
consideration of their consent that the surety might withdraw from the bank the $12,600
retent held by such bank. This was denied. The evidence was in direct conflict. The learned
district judge, before whom the case was tried without a jury, found in his written decision
that there was a release to the defendants by the payment of the $12,600 to satisfy a lien
which the defendants should have had every reason in the world to question. The court's
formal finding was that defendants delivered to plaintiff the sum of $12,600 to secure the
satisfaction of a mechanic's lien pursuant to an agreement between the parties that this
payment should constitute full satisfaction of all claims by plaintiff against defendants arising
by virtue of the indemnity agreements, and constitutes sufficient consideration for the
release agreement entered into between the parties. The factual dispute we do not discuss,
except to note that the evidence is conclusive that the $12,600 was not paid by respondents
but by the bank. Some of the witnesses did indeed accompany the surety company's attorney
to the bank, but just who was present when the bank delivered the retent to Continental's
attorney is not clear. It occurred the day before the payment of the remaining creditors. We
should note that at the time there was apparently presented to the bank a resolution by the
directors of Phil Shipley and Associates, Inc., agreeing that such sum might be paid.
The trial court concluded that by reason of the discharge of the indemnitors (respondents),
no money was owing to the appellant and that the respondents have judgment for their
costs.
owing to the appellant and that the respondents have judgment for their costs. Motion for
amendment of the findings or, in the alternative, for a new trial was presented and denied.
Appeal was taken from the judgment and from the order denying new trial.
If, as we have indicated, there was no consideration for the asserted discharge,
1
to the end
that a reversal must follow, it becomes unnecessary for us to attack the issue whether there
was, in fact, a discharge of the respondents, or the error asserted in denying the motion for
new trial.
We think it is clear that by reason of the terms of the contract papers, the indemnitors had
no claim to the retent and suffered no detriment by reason of their consent, if a consent was
actually given by them, that it might be withdrawn and paid to the surety company.
Curlett's application for the construction bond agreed: Fourth, to assign, transfer, and set
over, and does or do hereby assign, transfer and set over to the company, as collateral, to
secure the obligations herein * * * but only in event of * * * any abandonment, forfeiture or
breach of said contract * * * all the rights of the undersigned in and growing in any manner
out of, said contract, * * *; any and all percentages retained on account of said contract, and
any and all sums that may be due under said contract at the time of such abandonment,
forfeiture or breach, or that thereafter may become due.
[Headnote 2]
Thus all right to the retent had already passed to Continental. Conceding arguendo that
the indemnitors thereafter consented to Continental's withdrawing the retent from the bank,
such consent added nothing to the Continental's absolute right to withdraw it. Thus the surety
company acquired no benefit, as the payment of the money was something to which it was
entitled by reason of the contract papers.
____________________

1
Respondents do not contend that no consideration was necessary.
[Headnote 3]
In short, then, respondents' consent to the payment of the $12,600 by the bank to appellant
(assuming that such consent was given) and appellant's discharge of respondents from their
liability as indemnitors (assuming such discharge was given) constituted neither a detriment
to respondents nor a benefit to appellant. The discharge (if given) was without consideration
and left the obligation of the respondent indemnitors intact. Upon the surety's paying the
unpaid labor and material claims against the contractor, its judgment against the indemnitors
must follow.
Nothing can be accomplished by remanding the case for a new trial. The claims paid by
the appellant and for which it seeks judgment are definitely in the record. Indeed respondents
at the trial did not attack any of them. Appellant waited till August 14, 1951, before giving
notice to respondents of its payment of these items. Interest should run from the date of such
notice.
The judgment is reversed and the case remanded with instruction to enter judgment in the
sum of $41,852.44 (the aggregate, shown by appellant's canceled checks, of the amounts paid
by appellant to discharge the remaining material and labor bills against the construction, after
crediting the sum of $12,600 paid to appellant by the bank) in favor of appellant and against
respondents, together with interest thereon from August 14, 1951, and a reasonable attorney
fee to be fixed by the court.
____________
79 Nev. 434, 434 (1963) Baker v. Simonds
MAURICE H. BAKER, ROBERTA B. BAKER and LAWRENCE, INC., Appellants, v. W.
A. SIMONDS, HARRY OEDEKERK and KARAT, INC., a Nevada Corporation,
Respondents.
No. 4519
November 4, 1963 386 P.2d 86
Appeal from judgments of the Eighth Judicial District Court, Clark County; Jon R.
Collins, Judge.
Action wherein plaintiffs, after an amendment, sought damages for alleged constructive
eviction from premises. The trial court rendered judgment for defendants and plaintiffs
appealed. The Supreme Court, Thompson, J., held, inter alia, that plaintiffs who were only
tenants at sufferance had no claim for a constructive eviction.
Judgments n.o.v. affirmed.
Morton Galaxe; Hawkins, Cannon & Haskins, of Las Vegas, for Appellants.
Jones, Wiener & Jones, of Las Vegas, for Respondents W. A. Simonds and Harry
Oedekerk.
William Singleton and Rex A. Jemison, of Las Vegas for Respondent Karat, Inc.
Defendants who sold their ownership in premises before period during which alleged constructive
eviction of plaintiffs occurred could not be held responsible for damages.
Generally eviction of tenant may be either actual or constructive and a constructive eviction results
from an active interference with, or disturbance of, tenant's possession by act of landlord or someone under
his authority, because of which the whole, or substantial part, of the premises is rendered unfit for
occupancy for purpose for which it was demised.
Tenant seeking to take advantage of constructive eviction must surrender premises within reasonable time
and there can be no constructive eviction if tenant continues in possession, however much he may be
disturbed in beneficial enjoyment.
In every case for damages premised upon constructive eviction, relevant inquiries concern nature of
tenancy, whether for fixed term or indefinite term with periodic rent reserved, etc., evaluation of landlord's
nontrespassory intrusion upon tenant's possession, and whether possession was abandoned
within reasonable time after occurrence of acts complained of, and, of course, extent
of damages.
tenant's possession, and whether possession was abandoned within reasonable time after occurrence of acts
complained of, and, of course, extent of damages.
Absent any landlord-tenant relationship resting upon an agreement express or implied, for many months
prior to time when possession of premises was abandoned, no claim for constructive eviction could exist.
Alleged tenants waived any claim for constructive eviction by electing to remain in possession and
seeking court decree authorizing continued possession.
Asserted tenants who did not hold possession for indefinite term with monthly rent, who did not hold
possession by tenancy at will as they did not have consent of landlord but who remained in possession by
grace of restraining order after expiration of written lease and until they abandoned possession had tenancy
at sufferance and had no possession upon which claim for constructive eviction could be predicated.
Tenancy at will requires consent of landlord.
Tenancy at sufferance arises when one who came into possession rightfully continues in possession
wrongfully after right thereto is terminated.
Constructive eviction is not compatible with wrongful possession.
Reviewing court would decline to rule upon theory of liability not advanced in pleading or otherwise at
trial.
12. Costs.
No cost were to be allowed to any party for preparation of record on appeal where both sides filed
designations.
OPINION
In the trial court Maurice and Roberta Baker obtained jury verdicts against the defendants
Simonds and Oedekerk for $10,000 compensatory damages and against the defendant Karat,
Inc. for $10,000 compensatory and $15,000 punitive damages.
1
The trial court granted each
defendant's Rule 50{b) motion to set aside the verdicts and to direct entry of judgments
in their favor. Additionally, that court ruled that, if its order directing the entry of
judgments for the defendants, n.o.v., is reversed on appeal, a new trial should occur
because of excessive damages.
____________________

1
The Bakers' coplaintiff, Lawrence, Inc., a corporation wholly owned by them, was awarded nothing by the
jury. One problem presented to us was the identity of the real party in interest, the Bakers or their corporation.
Our disposition of the appeal makes it unnecessary to decide the question.
defendant's Rule 50(b) motion to set aside the verdicts and to direct entry of judgments in
their favor. Additionally, that court ruled that, if its order directing the entry of judgments for
the defendants, n.o.v., is reversed on appeal, a new trial should occur because of excessive
damages. The Bakers appeal from the order setting aside the jury verdicts and directing the
entry of judgments for the defendants. The validity of the conditional order granting a new
trial is also questioned but need not be decided because of our conclusion that the lower
court's rulings on the defendants' motions, n.o.v., were correct as a matter of law.
2

The case below started out as one for declaratory relief. The Bakers sought a court
declaration that they lawfully held possession of the Maurice Beauty Shop in the Royal
Nevada Motel as tenants under a five-year written lease dated December 10, 1954. The
defendants were restrained from dispossessing them, pending court determination. However,
in October 1960 (some 14 months after suit was started) the complexion of the case changed
completely. At that time the Bakers abandoned their request that the court decide their
disputed status as tenants under the mentioned written lease, advised the court that they had
surrendered possession of the beauty shop, and asked court permission to file a supplemental
complaint (NRCP 15(d)) requesting damages allegedly resulting from a course of conduct by
the defendants since August 14, 1959 (the date suit was started), amounting to a constructive
eviction. Permission was granted. The supplemental complaint was filed, and responsive
pleadings received. The temporary restraining order (which had been extended by stipulation)
was dissolved and bond exonerated. The cause thereafter proceeded to trial.
____________________

2
Alternative motions under the federal counterpart of our Rule 50(b) is the subject of comment in 50 Yale
L.J. 934. The federal rule was recently amended to require a conditional ruling on the motion for new trial, such
as was done in the instant case. This court's advisory committee has suggested that our rule be changed to
conform to the federal amendment.
[Headnote 1]
When the lower court determined that the verdicts obtained by the Bakers should be set
aside and judgments entered for the defendants, it necessarily found that a claim for relief had
not been proved as a matter of law. There can be no doubt as to the correctness of its ruling as
to the defendants Simonds and Oedekerk, for the record discloses that they had disposed of
their ownership of the hotel before this litigation commenced. The acts constituting the
claimed constructive eviction occurred after March 1959. Simonds and Oedekerk sold the
hotel (in which the beauty shop was located) to Karat, Inc. on March 1, 1959. It is not alleged
that they committed acts of constructive eviction. We can perceive no legal basis upon which
Simonds and Oedekerk can be responsible to the Bakers for damages; and summarily affirm
the lower court in so ruling without further comment.
Karat, Inc. was the sole landlord during the period of time in question. As to it the Bakers
seek a reversal of the lower court's ruling and the reinstatement of the jury verdict, contending
that substantial evidence was introduced to establish all essential elements of the cause of
action of constructive eviction. We turn to discuss this central issue.
[Headnotes 2-5]
In general terms the eviction of a tenant may be either actual or constructive. A
constructive eviction results from an active interference with, or disturbance of, the tenant's
possession by the act of the landlord or someone acting under his authority, because of which
the whole, or a substantial part, of the premises is rendered unfit for occupancy for the
purpose for which it was demised. However, the tenant must elect to treat such interference as
an eviction, and surrender the premises within a reasonable time. Veysey v. Moriyama, 184
Cal. 802, 195 P. 662, 20 A.L.R. 1363. There can be no constructive eviction if the tenant
continues in possession, however much he may be disturbed in the beneficial enjoyment.
beneficial enjoyment. Palumbo v. Olympia Theatres, 276 Mass. 84, 176 N.E. 815, 75 A.L.R.
1111; cf. Schultz v. Provenzano, 69 Nev. 324, 251 P.2d 294; Annot., 91 A.L.R.2d 638. Thus
it appears that in every case for damages, premised upon the claim of constructive eviction,
the relevant inquiries concern the nature of the tenancy (whether for a fixed term or for an
indefinite term with periodic rent reserved, etc.), an evaluation of the landlord's
nontrespassory intrusion upon the tenants' possession, and whether possession was abandoned
within a reasonable time after the occurrence of the acts complained about; and, of course, the
extent of damage once the foundation for liability is found to exist. However, in the case
before us, a discussion of these matters is not required. Much trial time was devoted to the
kind of tenancy enjoyed by the Bakers.
3
Yet it seems to us that the record shows the absence
of any landlord-tenant relationship between them and Karat, Inc., resting upon an agreement,
express or implied, for many months before September 1960 when their possession of the
beauty shop was abandoned. Absent such relationship at the time possession is surrendered,
the remedy of damages for constructive eviction simply does not exist. Restatement, Torts
822. A property right or privilege in respect to the use or enjoyment of the premises is
essential.
____________________

3
The master lease between Royal Nevada, Inc., lessor, and Royal Hotel, Inc., lessee, under which the Bakers
claimed a sub-lease, was forfeited by federal bankruptcy proceedings in January 1956. In March 1956 Royal
Nevada, Inc. gave a new lease of the entire premises to New Frontier. The Bakers continued in possession as
month-to-month tenants. In July 1956 Royal Nevada, Inc. transferred the fee to Simonds and Oedekerk. In
October 1956 the New Frontier lease was terminated. The Bakers remained in possession on a month-to-month
basis. At this time Simonds and Oedekerk leased the entire hotel to Nevroy Corp., and in April 1957 Nevroy
entered into an agreement with the Bakers labeled sub-lease, which the Bakers argue to be a pro tanto
assignment. In April 1958 the Eighth Judicial District Court forfeited the Simonds and Oedekerk to Nevroy
lease. Whether the Bakers' sub-lease or assignment was abolished also, need not be decided. Assuming that it
survived such court order, the Bakers' tenancy thereunder ran out October 31, 1959.
[Headnote 6]
Here a suit asking the court to declare their status as tenants under an alleged written lease
was commenced August 14, 1959. It was prompted by the Bakers' receipt of a notice to quit,
given by Karat, Inc. If anything happened before August 14, 1959, giving them cause to sue
Karat, Inc. for damages resulting from a constructive eviction, they waived any claim for such
relief by electing to remain in possession and by seeking a court decree authorizing their
continued possession. Abbott v. McCoy, 208 Okl. 224, 254 P.2d 997.
4
The written lease
upon which the Bakers relied in asking a court declaration of their status and any extensions
thereof, if valid at all, was to expire October 31, 1959, only two and a half months after suit
was brought. The temporary restraining order secured at the inception of this litigation (and
which, by stipulation, remained effective beyond the 15-day period prescribed by NRCP
65(b)) merely preserved the status quo pending court determination. Their possession of the
beauty shop after October 31, 1959, though made secure by the restraining order, was not
dignified thereby. The nature of their occupancy did not change. The record fails to disclose
any agreement, express or implied, following October 31, 1959 as a foundation for their
possession. Karat desired to dispossess them. Indeed there is no evidence that rent was
accepted by Karat after that date.
[Headnotes 7-9]
In these circumstances the implication of a month-to-month tenancy after October 31,
1959 is not warranted. The Bakers did not hold possession for an indefinite term with
monthly rental reserved. Cf. Proskey v. Colonial Hotel, 36 Nev. 76, 133 P. 390; Roberts v.
District Court, 43 Nev. 332
____________________

4
Two of the acts claimed to constitute a constructive eviction (locking of the main entrance and side door to
Royal Nevada Motel, thereby causing beauty shop patrons to enter the Stardust Hotel and on through a
breezeway to the Royal Nevada Hotel, and the removal of signs from the locked doors indicating that patrons
would have to enter through the main entrance of the Stardust to get to the beauty shop) occurred during the
summer of 1959 before the Bakers' suit for declaratory relief was started.
Court, 43 Nev. 332, 185 P. 1067. Nor was their retention of possession a tenancy at will, for
such a tenancy requires the landlord's consent to occupancy. Welk v. Bidwell, 136 Conn. 603,
73 A.2d 295. They were tenants at sufferance. This tenancy arises when one, who came into
possession rightfully, continues in possession wrongfully after his right thereto has
terminated. Restatement, Property 22; Welk v. Bidwell, supra; Welch v. Rice, 61 Wyo. 511,
159 P.2d 502. In such capacity they remained in possession (by grace of the restraining order)
until they voluntarily abandoned the beauty shop in September 1960.
[Headnote 10]
It is this kind of possession (plus the unproved charge that in May 1960 Karat ordered the
hotel switchboard to refer all calls for beauty shop service to the rival Stardust Beauty Shop,
unless the patrons specifically requested the Maurice Beauty Shop)
5
that is the basis in fact
for the supplemental complaint filed in October 1960 asserting a right to damages for a
constructive eviction. A constructive eviction is not compatible with wrongful possession.
Therefore we conclude that the lower court was right when it set aside the jury verdict and
directed entry of judgment, n.o.v., for Karat.
[Headnote 11]
One further comment: on appeal it was hinted that the evidence would support the jury
verdict against Karat on a different theory than constructive eviction. Such theory is described
as a suit for damages arising from the disturbance of Bakers' peaceable possession, even
though unlawful, by means other than legal process. We do not decide whether such a theory
for liability is recognized in the law. In this case it was an appellate innovation. It was not
advanced by pleading or otherwise in the trial court. For that reason we decline to rule on it.
____________________

5
Not proved, because the evidence offered was hearsay if offered to prove the truth. Objection was
interposed and sustained. The evidence then was received for another purpose., i.e., to establish the fact that
certain phone calls were made, and not the truth of the conversation, and the jury was correctly instructed as to
its use.
rule on it. Long v. Flanigan Warehouse Company, 79 Nev. 241, 382 P.2d 399; Clark County
v. State, 65 Nev. 490, 199 P.2d 137.
[Headnote 12]
Affirmed. A preliminary order as to costs incurred for preparation of the record on appeal
(both sides having filed designations) was asked. We reserved ruling. We now rule that no
costs are allowed to any party.
____________
79 Nev. 441, 441 (1963) Bradshaw v. Blystone Equip. Co.
FRANCIS CARTER BRADSHAW, Appellant, v. BLYSTONE
EQUIPMENT CO. OF NEVADA, a Nevada Corporation, Respondent.
No. 4624
November 7, 1963 386 P.2d 396
Action for loss of right arm resulting when plaintiff's clothes became enmeshed in
mechanism of posthole digger plaintiff had rented from defendant. The trial court set aside
verdict for plaintiff and entered judgment in defendant's favor and plaintiff appealed. The
Supreme Court, McNamee, J., held that defendant was not liable for failure to give plaintiff
safety instructions, where danger of open universal joint when machine was in operation was
apparent to casual observer.
Affirmed.
[Rehearing denied December 2, 1963]
Robert Callister, of Las Vegas, Nevada, Belli, Ashe and Gerry, and Lawrence H. Stotter,
of San Francisco, California, for Appellant.
Vargas, Dillon & Bartlett, and Alex. A. Garroway, of Reno, Nevada, for Respondent.
1. Trial.
Jury's answer to written interrogatory to effect that it found failure of defendant posthole digger owner to
properly instruct plaintiff renter of the risk of danger constituted finding that defendant was negligent in
failing to give plaintiff safety instructions concerning danger of open universal joint of digger, in action for
loss of arm resulting when plaintiff's clothes became enmeshes in mechanism.
2. Trial.
Jury's finding as to specific negligence absolved defendant from all other acts of negligence alleged in
complaint or mentioned in evidence.
3. Bailment.
Owner of posthole digger did not have duty to warn renter of digger of danger obvious to user.
4. Negligence.
Liability based on negligence does not exist in absence of breach of duty.
5. Bailment.
Owner of posthole digger was not liable to renter who lost arm when his clothing became enmeshed in
universal joint while machine was in operation for failure to give renter safety instructions, where danger of
open universal joint when machine was in operation was apparent to casual observer.
6. Bailment.
Lessor of obviously dangerous piece of machinery owed no duty to warn lessee of obvious danger.
7. Bailment.
Even if custom in industry was to provide guard for open universal joints on posthole diggers, failure to
furnish guard would not in itself establish liability of bailor for injuries resulting when clothing of bailee
became enmeshed in universal joint and he lost arm.
8. Bailment.
When bailor leased posthole digger to bailee and his partner for particular purpose of digging holes bailor
impliedly warranted reasonable suitability of chattel for that purpose.
9. Bailment.
Bailee of posthole digger was not entitled to recover from bailor for loss of arm resulting when his
clothing became enmeshed in machinery on basis of breach of implied warranty of fitness, where there was
nothing to show that machine did not operate in accordance with bailee's known intended use of it and it
did not contain a latent defect or hidden danger.
OPINION
This is an appeal from an order granting respondent's motion, made pursuant to NRCP
50(b), to set aside a verdict and judgment based thereon in favor of appellant and to have
judgment entered in respondent's favor.
verdict and judgment based thereon in favor of appellant and to have judgment entered in
respondent's favor.
Appellant sought damages in the court below for personal injuries suffered by him
resulting in the loss of his right arm when his clothes became enmeshed in the mechanism of
a posthole digger he had rented from respondent.
The first cause of action charges respondent with negligence in renting the equipment to
appellant who was unskilled in the use thereof and which equipment was not reasonably safe
for its intended use. It is further alleged therein that respondent failed to give appellant safety
instructions or warning concerning the danger of the open universal joint of said driller.
The second cause of action alleges that the respondent negligently failed to warn appellant
of the danger of the driller's open universal joint when respondent knew, or should have
known, of the danger to persons unskilled in the use of such equipment.
The third cause of action is for breach of implied warranty of fitness.
The answer denies negligence and the breach of any implied warranty, and alleges as
affirmative defenses contributory negligence and assumption of risk.
The case was tried before a jury which brought in a verdict in favor of appellant in the sum
of $51,786.55. At the same time the jury, to the written interrogatory: If you find that
defendant was negligent, state what the act or acts of negligence of the defendant were,
answered: We the Jury find the defendant guilty of unmindful negligence. In the fact due to
extenuating circumstances. Failure to properly instruct Plaintiff the risk of danger.
In his written decision on the motion for judgment notwithstanding the verdict, the learned
trial judge stated that the accident occurred on the third occasion Bradshaw had rented and
used the machinery. He found that no breach of duty was shown.
[Headnotes 1, 2]
The answer to the written interrogatory constitutes a finding by the jury that respondent
was negligent in failing to give appellant safety instructions concerning the danger of the
open universal joint of the driller.
failing to give appellant safety instructions concerning the danger of the open universal joint
of the driller. This was one of the acts of negligence alleged in appellant's first cause of
action. The jury's finding as to specific negligence absolves the respondent from all other acts
of negligence alleged in the complaint or mentioned in the evidence. Long v. Foley, 180 Kan.
83, 299 P.2d 63; Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P.2d 723.
[Headnotes 3, 4]
Even if the answer could be construed as a finding that respondent failed to warn appellant
of the risk of danger, there was no duty on the part of respondent to warn appellant of a
danger obvious to the user. Annot., 76 A.L.R.2d 28 (1961). A liability based on negligence
does not exist in the absence of a breach of duty. Long v. Flanigan Warehouse Company, 79
Nev. 241, 382 P.2d 399.
[Headnotes 5, 6]
We are not concerned in this case with an article containing a latent defect in its
construction as was the situation in Cosgriff Neon Co. v. Mattheus, 78 Nev. 281, 371 P.2d
819. The accident did not occur as a result of a mechanical defect in operation. There was
nothing hidden or concealed about the universal joint or its operation, and as stated before,
the accident occurred during the third occasion that appellant had rented and used the
equipment. Appellant admitted that he walked within six inches of the universal joint while it
was in operation, and both appellant and his partner who, at the time was engaged with
appellant in the operation of the machinery, testified that they knew the position of the
universal joint and that it was plainly visible. There was no reason for either of the operators
to be within any dangerous proximity to the universal joint while it was in operation.
Appellant at the time of the accident was a bank official. A person of at least ordinary
intelligence is charged with the knowledge that an exposed whirling piece of machinery is
dangerous and is to be avoided. The lessor owes no duty under such circumstances to warn
the lessee of such an obvious danger. 2 Restatement of Torts 388, Comment i.
We have not yet reached the state where a manufacturer is under the duty of making a
machine accident proof or foolproof. Just as the manufacturer is under no obligation, in order
to guard against injury resulting from deterioration, to furnish a machine that will not wear
out, see Auld v. Sears, Roebuck & Co., 288 N.Y. 515, 41 N.E.2d 927, affirming 261
App.Div. 918, 25 N.Y.S.2d 491, so he is under no duty to guard against injury from a patent
peril or from a source manifestly dangerous. To illustrate, the manufacturer who makes,
properly and free of defects, an axe or a buzz saw or an airplane with an exposed propeller, is
not to be held liable if one using the axe or the buzz saw is cut by it, or if someone working
around the airplane comes in contact with the propeller. In such cases, the manufacturer has
the right to expect that such persons will do everything necessary to avoid such contact, for
the very nature of the article gives notice and warning of the consequences to be expected, of
the injuries to be suffered. In other words, the manufacturer is under no duty to render a
machine or other article more' safeas long as the danger to be avoided is obvious and
patent to all. Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802.
[Headnote 7]
Appellant maintains that even if the manufacturer was not negligent, respondent, as bailor,
was negligent in leasing a machine containing an unguarded universal joint when the custom
in the industry was to furnish guards. There is no evidence in the record to show what the
custom in the industry is with respect to guards for open universal joints, but even if there
were such a custom the failure to furnish a guard would not establish liability. Messina v.
Clark Equipment Co., 2 Cir., 263 F.2d 291. In that case, the court stated:
Upon this appeal the plaintiff contends that in this case the allegations and proof of a
general standard among manufacturers to provide safety devices for such machines as that
involved here, take the case outside the reach of Campo * * *. But we think these cases make
it plain that the manufacturer's liability is limited to hidden defects and concealed dangers.
We conclude that the evidence does not as a matter of law sustain the jury's finding in its
answer to the written interrogatory that respondent was negligent in failing to give
appellant safety instruction, when the danger of the open universal joint while in
operation was apparent to the casual observer.
law sustain the jury's finding in its answer to the written interrogatory that respondent was
negligent in failing to give appellant safety instruction, when the danger of the open universal
joint while in operation was apparent to the casual observer.
In holding that the judgment for the appellant cannot be sustained on any charge of
negligence, we still must determine whether the judgment was proper under the evidence
received in support of the cause of action for breach of implied warranty of fitness.
[Headnotes 8, 9]
The respondent leased the posthole digger to appellant and his partner for the particular
purpose of drilling holes. In doing so, it impliedly warranted the reasonable suitability of the
chattel for that purpose. Annot., 68 A.L.R.2d 854 (1959). This is a common-law warranty.
Eastern Motor Express v. A. Maschmeijer, Jr., Inc., 2 Cir., 247 F.2d 826, 65 A.L.R.2d 765.
There is nothing in the evidence to show that it did not operate in accordance with appellant's
known intended use of it. It is not contended that the equipment contained a latent defect or a
hidden danger.
If a manufacturer does everything necessary to make the machine function properly for
the purpose for which it is designed, if the machine is without any latent defect, and if its
functioning creates no danger or peril that is not known to the user, then the manufacturer has
satisfied the law's demands. Campo v. Scofield, supra. To a greater degree is this statement
applicable to a lessor of chattels.
The judgment therefore cannot be supported on the ground of a breach of implied warranty
of fitness.
The action of the lower court in setting aside the verdict and judgment thereon and
entering judgment in favor of respondent was proper.
Order and judgment appealed from affirmed.
____________
79 Nev. 447, 447 (1963) Ford v. Wertheimer
JAMES W. FORD and FAYE P. FORD, Appellants, v. BEN WERTHEIMER and
MARGUERITE WERTHEIMER, Respondents.
No. 4554
November 13, 1963 386 P.2d 611
Suit by purchasers for recession of transaction whereby they purchased dwelling house
together with furniture. The trial court rendered judgment favorable to the purchasers, and
vendors appealed. The Supreme Court, Badt, C. J., held that judgment for purchasers for
$40,000 and for cancellation of $4,000 second deed of trust upon restoration to vendors of
realty title encumbered by $30,000 deed of trust failed to restore to the status quo vendors
who had sold for $43,000 and had received $10,500 in cash and $29,000 of $30,000 loan to
purchasers, who had possessed property for 21 months.
Affirmed in part. Reversed in part.
Jones, Wiener & Jones, of Las Vegas, for Appellants.
Harry E. Claiborne, of Las Vegas, for Respondents.
Upon granting a purchaser rescission, vendor must be placed in status quo and must in turn restore the
consideration as equitably as possible.
Judgment for realty and furniture purchasers for $40,000 and for cancellation of $4,000 second deed of
trust upon restoration to vendors of realty title encumbered by $30,000 deed of trust failed to restore to the
status quo vendors who had sold for $43,000 and had received $10,500 in cash and $29,000 of $30,000
loan to purchasers, who had possessed property for 21 months.
3. Costs.
Since retrial of determination of right of respondents to rescission was not required and possibly
five-sixths of record was devoted to the appeal from judgment of rescission, partially
successful appellants and respondents would be required to pay their own respective
costs on appeal.
was devoted to the appeal from judgment of rescission, partially successful appellants and respondents
would be required to pay their own respective costs on appeal.
OPINION
This is an appeal from a judgment in favor of plaintiffs (respondents herein) arising out of
a suit for rescission of a transaction in which appellants sold a certain dwelling house,
together with the furniture, to respondents.
The appellant-defendants will be referred to as the Fords and the respondent-plaintiffs as
the Wertheimers.
The Wertheimers purchased a residence in Las Vegas, Nevada, with household
furnishings, from the Fords for the agreed price of $43,000. The Wertheimers paid the Fords
$10,000 in cash and $29,000 from the proceeds of a $30,000 loan from Nevada Savings and
Loan Association, evidenced by a promissory note executed by the Wertheimers and secured
by a first deed of trust. The Wertheimers further executed a $4,000 note secured by a second
deed of trust in favor of the Fords.
They took possession in June, 1960. In December of that year they gave the Fords a notice
of rescission, demanding from you the return of $10,000 heretofore paid by Mrs.
Wertheimer as a part of the purchase price of the premises. Upon refusal of the tender the
Wertheimers' action for rescission followed in January, 1961. The complaint for rescission,
however, while offering a return of the property, prayed for judgment in the sum of $40,000,
in addition to the cancellation of the $4,000 note secured by the second deed of trust.
The court below filed a written decision ordering a rescissions and nothing more, and
directed counsel for plaintiffs to prepare findings, conclusions, and judgment. It should be
noted that the court's 11-page decision dealt entirely with a recital of the facts and with the
conclusion that the plaintiffs were entitled to rescission by reason of the fraudulent
representations of the defendants.
to rescission by reason of the fraudulent representations of the defendants. This issue,
however, is removed from the consideration of this court on the appeal, because appellants
frankly admit in their opening brief that the record contains substantial evidence supporting
the finding that respondents were induced to purchase the property by reason of the
appellants' misrepresentation of facts. They accordingly do not attack the trial court's
conclusion that the Wertheimers are entitled to a rescission.
Appellants contend that the trial court was in error in rendering a judgment in favor of the
Wertheimers for $40,000, because the same is an erroneous duplication of the $30,000 first
deed of trust with which the property was encumbered, upon restoration to the Fords of such
encumbered title by virtue of the rescission; and that the cancellation of the $4,000 second
deed of trust should have been conditioned upon restoration to the Fords of the title and
possession of the furnishings. They further contend that inasmuch as the Wertheimers had
remained in possession of the property for 21 months, the court was in error in not charging
them with the reasonable value of the rental of such premises for that period. They brought
these issues before the trial court by way of a motion to amend the findings and judgment and
for a new trial, in which, among other things, they asked for a finding that the plaintiffs
refinanced the subject property which at the time of the sale by defendants to plaintiffs had a
loan balance of approximately $18,000
1
* * *; that plaintiffs obtained a new loan upon the
subject premises in the principal sum of $30,000, and that by reason of the increased interest
rates and term of the new loan, the net costs to the defendants of such new loan was some
$3,000; and that rent for the premises for the period of 21 months, during which plaintiffs
occupied such premises, the reasonable rent therefor during such period being $350 per
month, * * *," should be credited against the judgment in favor of the Wertheimers.
____________________

1
The first and only mention of this item appears in appellants' motion for new trial. It is nowhere in evidence.
* * *, should be credited against the judgment in favor of the Wertheimers. The trial court
denied the Fords' motions on the ground that the Fords had participated and assisted in the
new loan and that the same was for their benefit.
Attention must first be given to the condition of the record concerning two of the items
embraced in the motion to modify the findings. The findings do not disclose any information
whether the property was encumbered at the time of the transaction, to say nothing of the
precise amount of the encumbrance in the sum of approximately $18,000. The assistant real
estate loan officer of the bank who handled the escrow testified in court and had with him the
escrow records of the transaction. At the request of counsel he handed him such records and
testified that the escrow was closed on July 15, 1960, and that on that date the bank
disbursed the funds. There the matter was dropped. No part of the escrow instructions or
any other documents or memoranda in the file were offered in evidence. No showing was
made of any amount due under a prior mortgage or whether the property was encumbered by
a prior mortgage. Nothing appeared as to whom and in what amounts the bank disbursed the
funds. Under the original contract papers the parties agreed that the evidence of title is to be
in the form of a policy of title insurance furnished and paid for by the seller. Certainly the
complete escrow file would have contained a satisfaction of an existing encumbrance with
instruction for its delivery upon payment of the principal and interest due, or possibly an
agreement for a subrogation, or other disposition thereof.
On the question of the reasonable value of the rental of the premises occupied by the
Wertheimers the record is entirely silent.
Nor does the record contain the $30,000 deed of trust, or any indication of its terms, or any
information as to what payment had been made thereon by the Wertheimers.
2
Hampered as
we are by the failure of the record to disclose these essential items, we turn to the
necessary disposition of the appeal.
____________________

2
It appears that appeal counsel were not counsel in the trial and are not chargeable with responsibility for the
record made in the court below.
Hampered as we are by the failure of the record to disclose these essential items, we turn
to the necessary disposition of the appeal.
The trial court found, without attack by either of the parties, that pursuant to the written
contract of sale the Fords delivered their deed. It should be here noted that the contract of sale
(by way of written offer and written acceptance upon a single document) included both the
real property and the furnishings. The deed described only the real estate. No bill of sale or
other instrument in the record conveyed the furnishings in the house. The court's findings
found that the Fords had received from the Wertheimers the sum of $10,000 in cash and
$30,000 from the proceeds of a note in that amount in favor of Nevada Savings and Loan
Association secured by first deed of trust to Nevada Trustee, Inc., as trustee, and Nevada
Savings and Loan Association as beneficiary, and that the Wertheimers further executed a
promissory note for $4,000 in favor of James Ford secured by a second deed of trust in his
favor as beneficiary. This note recited that it was secured by a deed of trust, of even date
herewith, to Nevada Trustee, Inc. The deed of trust as noted is not in evidence.
The court's conclusions of law, after finding that plaintiffs were entitled to a rescission,
and after holding that the Wertheimers were entitled to have rescinded all deeds and
conveyances and any and all notes, trust deeds, and mortgages executed and delivered in
pursuance to the sale of said property, concluded:
3. That the plaintiffs are entitled to a decree and judgment for the repayment by the
defendants [the Fords] of the sum of $40,000 received by defendants on the said purchase
price of said real property, together with interest * * *. The judgment followed these
conclusions.
While the record is confused by some unimportant variance and discrepancy in the figures,
it reveals the fact that the Wertheimers paid in $10,500, together with $29,000, proceeds of
the $30,000 mortgage loan. Under the trial court's judgment they recover $40,000 from
appellants. There is returned to the Fords their real property encumbered with a $30,000
mortgage, but none of the furnishings which had been included in the sale to the
Wertheimers and no payment from the Wertheimers of the reasonable rental of the
property for the 21 months during which the Wertheimers had occupied it.
real property encumbered with a $30,000 mortgage, but none of the furnishings which had
been included in the sale to the Wertheimers and no payment from the Wertheimers of the
reasonable rental of the property for the 21 months during which the Wertheimers had
occupied it.
[Headnote 1]
Neither of the parties questions the rule that upon granting a purchaser rescission, the
vendor must be placed in status quo, and must in turn restore the consideration, as equitably
as this can be accomplished. From the point of view of both parties, we must examine the
result of the judgment to see if this has been effected.
[Headnote 2]
As to the Wertheimers, they have returned the real property, but not the furnishings, for
which they paid $10,500 in cash. They occupied the premises for 21 months. On the
judgment of rescission they have recovered not $10,500 but $40,000, have retained title to the
personalty, and have been released from all further obligations in the transaction.
3

As to the Fords, they have received back their real estate (but not their furniture), subject
to a $30,000 deed of trust and have been subjected to a $40,000 judgment besides loss of the
use of the property for 21 months. As against this, they have received $10,500 in cash and the
proceeds of the $30,000 loan. As heretofore noted, we are without information as to how
much of the loan proceeds went to a prior mortgagee. Assuming, however, that the Fords
received the entire $30,000 proceeds of the loan, they have nonetheless received back title to
the property subject to such $30,000 deed of trust.
____________________

3
The deed of trust from the Wertheimers to the bank is not in evidence. Neither the bank, as beneficiary, nor
the trustee was a party to action. The judgment could not conceivably have discharged or in any way diminished
the bank's rights under its deed of trust. It may be presumed that the personal obligation of the Wertheimers on
their secured note to the bank and the possibility of their being subjected to a deficiency judgment after trustee's
sale of the property still exists. The trial court, however, nowhere indicated that the $40,000 judgment against
the Fords operated as a cushion against such liability.
It is thus evident that whether from the point of view of the Fords or the Wertheimers
neither has been restored to the status quo. The Fords emerge from the litigation with a
greatly limited equity in the property. The Wertheimers emerge with their original investment
of $10,500, enjoyment of the home rent free for 21 months, and the remainder of the $40,000
judgment as a bonus.
[Headnote 3]
This does not conform even remotely to restoring the parties to the status quo. Nor, under
the condition of the record, can this court direct a judgment. The judgment must be reversed
and the cause remanded for a new trial, limited to the issues involved in restoring the parties
to the status quo in accordance with views herein expressed. For the same reason the order
denying motion for new trial must also be reversed. The determination of the right of the
Wertheimers to a rescission, under the concession of the Fords, need not be retried. Such part
of the trial court's judgment is affirmed. The two volumes of the record on appeal comprise
1,294 folios. Possibly some five sixths of such record is devoted to the appeal from the
judgment of rescission. Under the circumstances, appellants and respondents will pay their
own respective costs on this appeal.
____________
79 Nev. 453, 453 (1963) Duran v. Mueller
JOSEPH S. DURAN and MAXINE DURAN, Appellants,
v. EDWARD A. MUELLER, Respondent.
No. 4557
November 13, 1963 386 P.2d 733
Marshall, Judge.
Automobile accident case. The trial court rendered judgment for defendant, and plaintiffs
appealed. The Supreme Court, Thompson, J., held that nonexpert investigating officer who
had testified to skid marks, point of impact, apparent automobile direction, and damage
was properly permitted to indicate position of automobiles as they collided regardless of
fact that testimony about position was deduction or opinion.
point of impact, apparent automobile direction, and damage was properly permitted to
indicate position of automobiles as they collided regardless of fact that testimony about
position was deduction or opinion.
Judgment affirmed.
Gregory & Gregory, of Las Vegas, for Appellants.
Morse & Graves, of Las Vegas, for Respondent.
Ruling sustaining objection to a question could not form predicate for error in view of answer later given
by witness to same question.
2. Appeal and Error; Witnesses.
Absence of foundation consisting of time, place, and who was present for impeaching testimony does not
necessarily result in prejudice, although requiring a foundation is preferable.
Lack of foundation for impeaching testimony was not prejudicial where testimony elicited in attempt to
impeach was consistent, so far as it went, with testimony of witness sought to be impeached.
4. Evidence.
Nonexpert investigation officer who had testified to skid marks, point of impact, apparent automobile
direction, and damage was properly permitted to indicate position of automobiles as they collided
regardless of fact that testimony about position was deduction or opinion.
In making record for contingency of appellate review, it is preferable that each instruction be discussed
separately and counsel's position be made clear.
6. Trial.
Blanket objection to refused instructions should not have been invited or made.
Counsel has obligation to protect record in proper fashion for contingency of appellate review.
In absence of objection to instruction, reviewing court would not rule on contention of appellants that
giving of the instruction was reversible error. NRCP 51.
9. Evidence.
Reviewing court could not assume that Department of Highways had designated speed zone within which
automobile accident occurred or that Department had installed speed signs there. NRS 484.090.
10. Evidence.
Reviewing court took judicial notice of fact that automobile accident occurred within incorporated area
of a specified city.
Plaintiffs were not prejudiced by erroneous giving of an instruction favorable to plaintiffs.
12. Trial.
Requested instructions dealing with effect of violating standard of conduct established by statute
regarding establishment of state speed zones were properly refused since the statute established no speed
zone or speed limit but instead delegated authority to do so to Highway Department and there was no
showing whether authority had been exercised. NRS 484.090.
13. Trial.
Generally, the number of instructions to be given is discretionary.
14. Trial.
If one instruction adequately covers a given theory of liability or defense, refusal of additional
instructions relating to the same theory but couched in different language is preferable.
15. Trial.
Instructions which were merely embellishments of other proper instructions on issues were properly
refused.
16. Automobiles.
Plaintiffs' requested last clear chance instruction was property refused in case wherein plaintiffs'
witnesses did not observe defendant's driving prior to collision and defendant claimed he had no time to do
anything but apply brakes.
17. Trial.
Ruling on objections interposed by defense during jury summary by plaintiffs did not constitute
interruption by judge of the summation.
18. Trial.
Record did not reflect hostility of court to plaintiffs' side of case.
OPINION
Maxine Duran and husband sought to recover damages from Mueller resulting from an
automobile collision. The accident occurred near Henderson, Nevada on the Las
Vegas-Boulder City four lane divided highway. Maxine Duran contended that she was
proceeding generally towards Boulder City in the left lane of the two lanes provided for
traffic going in that direction.
As she arrived at an intersection she started to turn left (to cross over onto the highway for
Las Vegas bound traffic) when her car was negligently struck from the rear by Mueller's car.
Mueller's factual defense was that he had been following Duran in the right lane of traffic and
had moved over to the left lane to pass when she abruptly turned left in front of him without
warning, causing the collision to occur. The jury apparently accepted Mueller's version of the
accident and returned a verdict in his favor. Judgment was entered. The plaintiffs appeal.
Seventeen claimed errors are presented to us. Two of them (one relating to certain medical
testimony and the other concerning the trial court's refusal to give a punitive damage
instruction) need not be discussed. They are not relevant to the issue of liability and,
manifestly, had nothing to do with the verdict reached. We turn to discuss the remaining 15
assigned errors.
1. Evidence Rulings.
[Headnote 1]
(a) On redirect examination of Maxine Duran she was asked: Now, how were you sure
you were in the left lane, Mrs. Duran? The court believed the question to be leading and
sustained defense counsel's objection. When Mrs. Duran testified on direct examination the
same question was put to her and answered. Thus the validity of the court's ruling when the
question was again asked clearly cannot form a predicate for error.
[Headnote 2, 3]
(b) Davis, a disinterested eye witness to the accident, was called by the plaintiff during
presentation of her case in chief and testified as to what he heard and observed. To impeach
him, the defendant during the presentation of his case asked the investigating police officer to
relate what Davis had told him following the accident. Plaintiffs' counsel objected, asserting
that a foundation (time, place, who was present) for impeaching testimony had not been
established through the testimony of Davis when he was on the stand; that Davis had not
been asked whether he had conversed with the investigating officer.
Davis had not been asked whether he had conversed with the investigating officer. The
objection was overruled. Though it is preferable to require the foundation, cf. State v. Kuhl,
42 Nev. 185, 175 P. 190, 3 A.L.R. 1694, its absence doesn't necessarily result in prejudice.
Here, however, the officer's testimony did not impeach Davis. He testified The witness
(Davis) stated that he had heard the screech of brakes and turned around and saw the
collision. Such testimony (so far as it goes) is consistent with the prior testimony of Davis.
Therefore it is apparent that the court's ruling on the objection could not have affected the
trial result.
[Headnote 4]
(c) The investigating officer was asked how the automobiles collided. The objection of
no foundation was made by plaintiffs' counsel, and overruled. Defense counsel told the
witness not to testify as to the cause of the accident. The witness related the position of the
cars as they came together. He was not qualified as an expert. However, as the investigating
officer, he had already testified to the skid marks, point of impact, apparent car direction, and
car damage. In such circumstances a nonexpert witness may also indicate the position of the
cars as they collided. The fact that such testimony is a deduction or an opinion does not
preclude it. McPherson v. Martin, 234 Ala. 244, 174 So. 791. It does not constitute an
opinion as to cause or responsibility. Cf. Mikulich v. Carner, 69 Nev. 50, 240 P.2d 873;
Annot., 38 A.L.R.2d 13. Rather, the admissibility of such opinion testimony is somewhat
comparable to the reception of nonexpert opinion evidence as to the rate of speed of a moving
vehicle. Patton v. Henrikson, 79 Nev. 197, 380 P.2d 916. In either instance the competency of
the witness must first be shown. Here the prior testimony regarding skid marks, point of
impact, car direction, etc., was a proper foundation for his opinion, whereas in Patton v.
Henrikson, supra, the competency requirement was met by proof that the witness had ample
opportunity to observe the moving car. The trial court ruled correctly.
2. Jury instructions.
(a) First we comment regarding counsel's complaint that he was not given a fair
opportunity to make a complete record of objections to instructions given and proposed
instructions refused. As to those which were given the record does not support him. He
objected specifically to some of them. As to those which he had offered, but were refused, the
following colloquy occurred:
By the Court: Well, I think you might protect yourself better if you make an objection to
the refusal to give all the instructions you have submitted.
By Mr. Gregory, Sr.: Well, I did.
By the Court: All of them, not specifically one or two, but all of them.
By Mr. Gregory, Sr.: Yes, Your Honor, on the ground that each of them correctly states
the law and there is evidence pertaining to each of them in this case.
[Headnotes 5-7]
In making a record for the contingency of appellate review it is preferable that each
instruction be discussed separately and counsel's position made clear. The court should not
have invited counsel to make a blanket objection to refused instructions, nor should counsel
have accepted the invitation. It is his obligation to protect the record in proper fashion.
However, as the procedure was adopted at the court's suggestion, we will consider the refused
instructions, even though the objection made was general and vague.
[Headnote 8]
(b) Given instructions. The trial court gave an instruction defining unavoidable accident.
Appellants contend that it was reversible error to do so. Butigan v. Yellow Cab Company, 49
Cal.2d 652, 320 P.2d 500; cases collected Annot., 65 A.L.R.2d 12. Counsel did not preserve
the point for appellate review. He did not object. NRCP 51. Therefore we decline to rule.
Lathrop v. Smith, 71 Nev. 274, 288 P.2d 212; Wagon Wheel v. Mavrogan, 78 Nev. 126, 369
P.2d 688.
[Headnotes 9-11]
It is also urged that reversible error occurred when the trial court instructed the jury that
the highway department could prescribe speed zones, post speed signs and, if a party
exceeded the posted speed, the jury could consider such fact in deciding the issue of
negligence.
department could prescribe speed zones, post speed signs and, if a party exceeded the posted
speed, the jury could consider such fact in deciding the issue of negligence. The instruction
appears to be based on NRS 484.090.
1
The record is devoid of proof that the department of
highways designated the speed zone within which the accident occurred, or that it installed
the speed signs. We cannot assume these facts. We take judicial notice of the fact that the
accident occurred within the incorporated area of the city of Henderson. Cf. Summerfield v.
Hines, 45 Nev. 60, 197 P. 690. Perhaps the speed zone was prescribed by the city, Clark
County, or the department of highways. We do not know. Absent proof that the actions
contemplated by NRS 484.090 occurred, the instruction finds no support in the record.
2
Though it was erroneously given, the error cannot be deemed prejudicial. Its presence was
beneficial to the plaintiffs-appellants, rather than harmful. The matter of speed was directed
to the defendant Mueller's conduct. No one contended that Mrs. Duran exceeded a posted
speed limit.
[Headnote 12]
(c) Refused instruction. Three instructions offered by plaintiffs (one quoting NRS 484.090,
and the others dealing with the effect of violating a standard of conduct established by the
statute) were refused by the court. It correctly did so. The instruction quoting NRS 484.090
was improper for the reasons already stated.
____________________

1
NRS 484.090 reads: Establishment of state speed zones. 1. The department of highways is authorized to
prescribe speed zones, and to install appropriate speed signs controlling vehicular traffic on the state highway
system through hazardous areas, after necessary studies have been made to determine the need therefor, and to
eliminate speed zones and remove the signs therefrom whenever the need therefor ceases to exist.
2. After the establishment of a speed zone and the installation of appropriate speed control signs, any
person who drives a motor vehicle upon the public highway and in such speed zone in excess of the speed
therein authorized shall be guilty of a misdemeanor.

2
Had such proof been supplied, the issue as to whether a violation of a speed limit established by an
administrative body (as distinguished from the violation of a speed limit expressed in a statute) is negligence per
se or only evidence of negligence would have been presented. In this regard, an article entitled The Role of
Administrative Safety Measures in Negligence Action, 28 Tex.L.Rev. 143, is of interest.
was improper for the reasons already stated. The others should not have been given because
the statute did not establish either a speed zone or a speed limit. The authority to do so was
delegated to the highway department, and we do not know whether that authority was
exercised.
Finally, it is urged that the trial court committed three additional errors in refusing
instructions requested by the plaintiffs Duran. One of them was based on NRS 484.105(2) to
the effect that it is lawful to drive on the left, or inside, lane of a four lane divided highway
under certain circumstances. Another advised as to when the defense of an unavoidable
accident cannot be maintained. It seems to us that neither instruction was necessary. Perhaps
each could have been given without committing error. However, it does not follow that
failure to give them was error.
[Headnotes 13-15]
As a general proposition the number of instructions to be given is discretionary with the
court. If one instruction adequately covers a given theory of liability or defense, it is
preferable that the court refuse additional instructions relating to the same theory, though
couched in different language. Here the issues to be tried were the defendant's negligence, the
plaintiff's contributory negligence, causation and, of course, damages if liability was found to
exist. The jury was properly instructed on those issues. The two instructions just mentioned
were merely embellishments which the court could properly refuse.
[Headnote 16]
A last clear chance instruction was offered by the plaintiffs and refused by the court. We
have searched the record with care. There is no evidence to justify the giving of a last clear
chance instruction. The plaintiff Maxine Duran did not observe the defendant's driving. Her
story was that she was struck from behind. The witness Davis heard the screech of brakes,
turned around, and saw the collision. He did not testify as to distance between the cars
preceding the collision, or the time available for the defendant to act. The defendant Mueller
testified that Duran turned in front of him abruptly and without warning, and that he had
no time to do anything except apply his brakes.
Mueller testified that Duran turned in front of him abruptly and without warning, and that he
had no time to do anything except apply his brakes. No other witness saw the collision.
Obviously such evidence does not show a last clear chance to avoid the accident. The trial
court did not err. Cordano v. Pac. Intermtn. Exp., 74 Nev. 119, 324 P.2d 232; Ferris v.
Albright's Electric Co., 70 Nev. 528, 275 P.2d 755.
[Headnotes 17, 18]
3. The remaining assignments of error attack the trial judge. It is claimed that he
improperly interrupted the jury summation of plaintiffs' counsel and that he manifested a
hostile attitude towards the plaintiffs and their counsel throughout the trial. The attack is
totally unwarranted. The judge did not interrupt counsel during summation. Defense counsel
did by interposing objections upon which the court ruled. Nor does the record reflect court
hostility to the plaintiffs' side of the case. Advocacy sometimes distorts counsel's ability to
perceive and discriminate; it did here.
Affirmed.
____________
79 Nev. 461, 461 (1963) Peterson Tractor v. Cal-West Equip. Co.
PETERSON TRACTOR CO., a Corporation, Appellant, v.
CAL-WEST EQUIPMENT CO., a Corporation, Respondent.
No. 4622
November 15, 1963 386 P.2d 609
Appeal from the First Judicial District Court, Churchill County; Frank B. Gregory, Judge.
Action for balance of purchase price remaining after crediting purchaser with appraised
value of property which had been repossessed by seller. The lower court entered a judgment
for the buyer and the seller appealed. The Supreme Court, McNamee, J., held that power of
sale given in chattel mortgage must be exercised in accordance with provisions thereof,
and there must be an actual sale.
sale given in chattel mortgage must be exercised in accordance with provisions thereof, and
there must be an actual sale.
Reversed and remanded with directions.
Sinai & Sinai, of Reno, Nevada, for Appellant.
John Tom Ross, of Carson City, Nevada, and Carl Kuchman, of Sacramento, California,
for Respondent.
1. Chattel Mortgages.
Buyer's execution of chattel mortgage on tractors as additional security for transaction whereby he bought
five scrapers on conditional sales contract which allowed seller, on default, to credit reasonable value of
property to buyer and hold him liable for deficiency did not convert entire transaction into chattel mortgage
whose terms required a sale of property in event of default.
Chattel mortgage may provide for a sale without suit in event of default.
Power of sale given in chattel mortgage must be exercised in accordance with provisions thereof, and
there must be an actual sale.
Where chattel mortgage provided for sale of property in event of default, action of mortgagee in taking
possession of tractors on default and treating them as its own property after giving credit to mortgagor for
reasonable value of such property constituted a conversion of tractors, and mortgagor was entitled to credit
for fair market value on date of conversion.
OPINION
On October 17, 1960 appellant sold to respondent five used Allis Chalmers scrapers under
a conditional sales contract in which the seller retained title to secure payment of the purchase
price. As additional security the respondent on October 18, 1960 executed a chattel mortgage
on two caterpillar tractors. A year later, after default in payment, appellant with the
permission of respondent took possession of the scrapers and tractors.
The conditional sales contract provided that in the event the purchaser is in default in any
payment, the seller may take possession of the scrapers, and
(i) sell said property at public or private sale without notice * * * and Seller, or his
assignee, may become a purchaser at said sale * * * or
(ii) credit the reasonable value of said property as determined by Seller, or his assignee, to
all amounts due hereunder and pay any excess over to Purchaser, and in the case of any
deficiency, Purchaser agrees to pay the same with interest at the highest rate allowed by law.
The chattel mortgage provided that upon the appellant's (mortgagor's) default under the
conditional sales contract the respondent (mortgagee) may at once proceed to foreclose this
mortgage according to law, or it may at its option * * * sell and dispose of the same
[mortgaged property] at public or private sale * * * and from the proceeds of sale retain all
costs and charges incurred; also all sums due from Mortgagor to Mortgagee and interest
thereon * * *; if there be a deficit, Mortgagor agrees immediately to pay the same to
Mortgagee.
Mortgagee, or its agent, may bid and purchase at any sale made under this Mortgage or
herein authorized, or at any sale made upon foreclosure of this Mortgage.
Appellant after taking possession of the equipment elected to proceed under said
paragraph (ii) with respect to the scrapers. One of its employees appraised the scrapers at
$5,000 and credited respondent with said sum as their fair market value. With respect to the
tractors, the appellant evaluated them at $4,250 in exactly the same manner it had appraised
the scrapers, and credited appellant with this value as so found. The journal entry of both
credits was made on October 30, 1961.
This is an action for the balance of the purchase price of the scrapers remaining on the
books of appellant after the appraised value of the scrapers and tractors had been credited to
respondent's account.
The trial court was of the opinion that the execution of the chattel mortgage as additional
security for the buyer's performance under the conditional sales contract converted the entire
transaction into a chattel mortgage and that upon appellant's taking possession of the scrapers
and tractors and assuming ownership thereof without any sale it forfeited any right it might
otherwise have had to sue the buyer for any deficiency.
Judgment was entered for the respondent and appeal is from that judgment.
It is conceded by both parties that if there had been no chattel mortgage this procedure
followed by appellant with respect to the scrapers would have been proper under the
provisions of the conditional sales contract, and appellant legally could have sued for the
resulting deficiency.
It thus becomes necessary to determine in what manner the execution of the chattel
mortgage affected the legal rights of the parties.
[Headnote 1]
On October 17, 1960 the conditional sales contract was executed and called for the sale of
the scrapers to respondent for the sum of $28,800, the amounts and times of installment
payments being specified therein. On the following day in lieu of any down payment the
chattel mortgage was executed as additional security. The property covered by the chattel
mortgage was entirely different from that which was the subject of the conditional sales
contract. Rights under the chattel mortgage never would have matured in the absence of a
default under the conditional sales contract. Counsel for respondent admittedly has found no
case which holds that a chattel mortgage executed under such circumstances transforms an
executed conditional sales contract into a chattel mortgage. In support of his conclusion that
such a transformation took place, the learned trial judge cited the case of American Soda
Fountain Co. v. Blue, 146 Ala. 682, 40 So. 218. In that case, however, the same property was
the subject of both the conditional sale and the chattel mortgage. The other cases cited are
from jurisdictions which have been reluctant to recognize conditional sales contracts.
other cases cited are from jurisdictions which have been reluctant to recognize conditional
sales contracts. Nevada, however, has recognized conditional sales since 1921, when this
court decided the case of Studebaker Bros. Co. v. Witcher, 44 Nev. 442, 195 P. 334. The
terms of the contract in that case were identical with those of the sales contract now before us
and we held that such a contract was a conditional sale and not a chattel mortgage.
When appellant caused the appraisal of the scrapers and credited respondent's account with
the value so determined, title to the scrapers passed to the respondent by virtue of the terms of
the conditional sales contract.
[Headnote 2]
In pursuing the same conduct with respect to the tractors, appellant was not following the
provisions of the chattel mortgage which required a sale of the tractors to foreclose
respondent's interest therein. Although a suit to foreclose is the usual method of proceeding
for a sale, it is proper for a chattel mortgage to contain provisions for a sale without suit as
provided in the chattel mortgage herein. Cram v. Wells Cargo, Inc., 70 Nev. 19, 253 P.2d
200; Whitmore v. Shiverick, 3 Nev. 288; J. I. Case Threshing Mach. Co. v. Copren Bros., 32
Cal.App. 194, 162 P. 647. The power of sale given in the chattel mortgage must be exercised
in accordance with the provisions thereof. There must be an actual sale however. Merely
crediting the mortgagor with the estimated value of the property is not a compliance with the
power of sale as given. 10 Cal.Jur.2d 97, at 403. Calling such a transaction a sale does not
make it so. Cf. 3 Williston on Sales 547, at 168. The intention of the parties clearly
expressed in the chattel mortgage was that there be an actual sale of the tractors before
appellant would be foreclosed of its title thereto.
[Headnote 3]
In the absence of a sale of the tractors, the action of the appellant in treating them as its
own property constituted a conversion by it of the tractors.
constituted a conversion by it of the tractors. See Dohrman v. Durston, 90 Cal.App.2d 236,
202 P.2d 607.
[Headnote 4]
In lieu of the amount of the appraised value of the tractors which was credited to
respondent's account, the respondent is entitled to be credited with the fair market value of
the tractors on the date of the conversion, to wit, October 30, 1961. Harry Saddler, the
president of respondent corporation, testified that this value in October 1961 was $8,000, and
counsel for appellant stipulated during oral argument that a credit in that amount, rather than
the sum of $4,250, would not be objectionable to appellant. The balance due on October 30,
1961 after entering the credit of $4,200 was $16,670. With the credit of $4,200 adjusted to
$8,000, the balance due on that date would be $12,870.
The conditional sales contract provides that in the event Seller or his assignee employs
the services of an attorney to enforce any of the terms of this contract Purchaser agrees to pay
reasonable attorney's fees and court costs so incurred by Seller or his assignee.
The judgment is reversed and the cause remanded with directions that the lower court
enter judgment in favor of appellant and against respondent in the sum of $12,870 plus
interest thereon from October 30, 1961 at the rate of 7 percent per annum, together with an
attorney fee to be fixed by the lower court and appellant's costs therein.
No costs are allowed on appeal.
____________
79 Nev. 467, 467 (1963) Dubin v. Harrell
AL DUBIN, Appellant, v. JOHN A. HARRELL,
Respondent.
No. 4626
November 19, 1963 386 P.2d 729
Appeal form judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Action in which the lower court rendered summary judgment for defendant, and plaintiff
appealed. The Supreme Court, Thompson, J., held that unchallenged discretionary dismissal,
under rule, for failure to prosecute for two years barred subsequent action against same
defendant on same claim, although limitation period has not run.
Judgment affirmed.
George Rudiak, of Las Vegas, for Appellant.
Foley Brothers, of Las Vegas, for Respondent.
Appeal was available to test propriety of exercise of discretion to dismiss for failure to prosecute for two
years. NRCP 41(e).
Court has inherent power to dismiss for want of prosecution.
Claimant's right to day in court is subject to reasonable procedural requirements.
Unchallenged discretionary dismissal, under rule, for failure to prosecute for two years barred subsequent
action against same defendant on same claim, although limitation period had not run. NRCP 41 and (b,
e).
OPINION
The appeal present this question: May a plaintiff, whose claim for relief has been
dismissed for want of prosecution and who has failed to appeal from the dismissal order,
commence another action against the same defendant on the same claim for relief?
missal order, commence another action against the same defendant on the same claim for
relief? Our answer is no; he may not.
[Headnote 1]
Here the first case was filed September 30, 1958. It was dismissed February 21, 1962, on
defendant's motion, the court exercising the discretionary power granted it under the two-year
provision of NRCP 41(e).
1
The order of dismissal did not state whether the dismissal was
with prejudice or without prejudice. Plaintiff did not appeal from the order of dismissal,
though that remedy was available to test the propriety of the district court's exercise of
discretion. Instead, on July 17, 1962 plaintiff filed another case against the same defendant,
asserting the same claim for relief. The statute of limitations had not run. The defendant
moved for summary judgment. His motion was granted and judgment entered in his favor.
On appeal the plaintiff-appellant's basic theme is that a judgment of dismissal for want of
prosecution is not a judgment on the merits and, therefore, not res judicata. Consequently a
second suit may be brought against the same defendant predicated on the same claim for
relief.
____________________

1
NRCP 41(e) provides: Want of Prosecution. The court may in its discretion dismiss any action for want of
prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two
years after action is filed to bring such action to trial. Any action heretofore or hereafter commenced shall be
dismissed 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. When, in any action after judgment, a motion for a new trial has been made and a
new trial granted, such action shall be dismissed on motion of defendant after due notice to plaintiff, or by the
court of its own motion, if no appeal has been taken, unless such action is brought to trial within three years after
the entry of the order granting a new trial, except when the parties have stipulated in writing that the time may be
extended. When in action after judgment, an appeal has been taken and judgment reversed with cause remanded
for a new trial (or when an appeal has been taken from an order granting a new trial and such order is affirmed
on appeal), 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.
the same defendant predicated on the same claim for relief. Without question, case authority
supports him. Annot. 54 A.L.R.2d 473. This was the common-law rule. If 41(e) were not
present a second suit would be permissible. The problem as to whether 41(e) retained the
common-law rule or changed it, was deemed by counsel to be the central one on this appeal.
That particular subdivision of Rule 41, that is, subdivision (e), dealing specifically with a
dismissal for want of prosecution, does not state whether such a dismissal is on the merits or
otherwise, with prejudice or without. The plaintiff therefore turned to language in 41(b), a
dismissal under this subdivision and any dismissal not provided for in this rule, [meaning
Rule 41] * * * operates as an adjudication upon the merits. and contended that as a dismissal
for want of prosecution is provided for by Rule 41, inferentially, such a dismissal does not
operate as an adjudication on the merits. On the other hand, the defendant contended that the
language of 41(b) is of no assistance in deciding a problem under 41(e). It is his position that
the quoted language of 41(b) clearly applies only to a dismissal under that subdivision and to
any dismissal not provided for by Rule 41. As a dismissal for want of prosecution is neither,
(i.e., it is not a dismissal under 41(b) and it is provided for by subdivision (e) of Rule 41), an
answer is not to be found within the language of the rule. We agree with the defendant. It is
clear to us that 41(e) is silent as to whether a dismissal therein provided for is to be deemed
on the merits or otherwise. The point is not touched by the language of the entire rule or any
subdivision thereof. Nor does a comparison with the federal rule or a reference to the
advisory committee note shed light. We must look elsewhere for the answer.
The plaintiff-appellant suggests that we look to the law of California, where it is held that
a statutory dismissal for a delay in prosecution is nothing more than a rule of procedure
designed to encourage promptness in prosecution of actions and does not affect the
substantive right to bring another suit. Gonsalves v. Bank of America Nat. Trust & Sav.
Ass'n, 16 Cal.2d 169, 105 P.2d 11S.
P.2d 118. Our attention is directed to dictum in Harris v. Harris, 65 Nev. 342, 196 P.2d 402,
where it is said that, as our statute (then 9932 N.C.L., 1943 Supp., now Rule 41(e)) was an
exact copy of a California code provision, a presumption arises that it was adopted by the
Nevada legislature with the construction given it by the California court as of that date. The
dictum of Harris v. Harris, supra, is unfortunate. There the claim was dismissed before the
minimum two-year period prescribed by 9932 N.C.L., 1943 Supp., had passed. The sole
question was whether the court possessed an inherent power to dismiss for delay in
prosecution without benefit of statute. It was held that the power existed and that its exercise
in that case was not an abuse. There was no need for the court to refer to any principle of
statutory construction. By doing so, a cloud was cast over the meaning to be accorded our
statute (now Rule 41(e)). Twice since Harris v. Harris, supra, the same argument presently
advanced (look to California law) was made. Each time it was rejected. In Astorga v.
Ishimatsu, 77 Nev. 30, 359 P.2d 83, a five-year mandatory dismissal case, the court referred
to California case law but found it distinguishable. In Thran v. District Court, 79 Nev. 176,
380 P.2d 297, also under the five-year provision, it was stated that NRCP 41(e) is clear and
unambiguous and requires no construction other than its own language. Accordingly, the
unwarranted dictum of Harris v. Harris, supra, has been discarded as inappropriate to the
disposition of 41(e) dismissal cases.
Next the plaintiff-appellant, by analogy to the cases of Laird v. Morris, 23 Nev. 34, 42 P.
11 and Clow v. West, 37 Nev. 267, 142 P. 226, argues that a second suit is permissible. We
do not find the analogy helpful. In Laird v. Morris, supra, neither the plaintiff nor his counsel
appeared for the first trial. At defendant's request the case was dismissed. It was held that the
dismissal was not on the merits and did not bar a second suit. The policy underlying a
dismissal for want of prosecution was not involved in Laird v. Morris, supra. The cause had
been brought on for trial with reasonable diligence, as contemplated by the rule now in
effect.
diligence, as contemplated by the rule now in effect. The plaintiff and his counsel simply did
not appear at the appointed time. In Clow v. West, supra, a nonsuit was granted the defendant
after the plaintiff had presented her case in chief and rested. It was held that the judgment of
nonsuit was not res judicata, barring a subsequent action. Our present Rule 41(b) changes the
holding of Clow v. West, supra. It provides that an involuntary dismissal at the close of the
plaintiff's case shall operate as an adjudication upon the merits, unless the court otherwise
specifies.
[Headnotes 2-4]
It seems to us that the correct answer to the problem posed flows from the very fact that
the legislature in 1943 enacted 9932 N.C.L., 1943 Supp., now Rule 41(e). A court has
always possessed an inherent power to dismiss for want of prosecution. Harris v. Harris, 65
Nev. 342, 196 P.2d 402. Neither statute nor rule was needed to confer that power upon a
court. Why, then, should the legislature intervene and declare its policy regarding the
diligence to be required of a claimant who wishes to invoke court aid to resolve his claim? If
he fails to bring his action on for trial within five years, his cause shall be dismissed. Thran v.
District Court, 79 Nev. 176, 380 P.2d 297; Astorga v. Ishimatsu, 77 Nev. 30, 359 P.2d 83.
Should less than five, but more than two, years pass, the court in its discretion may dismiss
the case. Are we to presume that the legislature intended its enactment to be ineffective? If a
claimant may commence suit, fail to prosecute, suffer a dismissal, and file again, Rule 41(e)
accomplishes little. Nor should a district court ruling be so easily ignored. The legislative
declaration of policy (now embraced in Rule 41(e)) must be accorded significance. This may
only be done by limiting the claimant to his remedy of appeal. Though we agree with the
plaintiff-appellant that a judgment of dismissal for want of prosecution does not supply the
defense of res judicata to a second suit against the same defendant on the same claim
(because there was not a hearing on the merits), we conclude that the legislature necessarily
intended that a second action be barred for reasons of policy.
for reasons of policy. A parallel may be found by reference to statutes of limitation. There the
underlying policy is to preclude the litigation of stale claims. Here the policy to be served is
that, once suit is commenced, it must be carried forward with reasonable diligence unless
circumstances exist which excuse delay (if less than five years has passed). The statute of
limitations is a defensive weapon granted a party defendant and may be asserted to defeat a
claim for relief which has not been filed within the prescribed period. NRCP 8(c). Rule 41(e)
invests the court with the power (though inherently possessed) to refuse to hear a case that
has been filed but not prosecuted with the diligence required. In either case, i.e., whether the
claim is barred by limitations or dismissed for want of prosecution, the judgment entered does
not constitute an adjudication on the merits of the claim, in the literal sense, for there has
been no hearing on the merits. In neither instance is the substantive cause of action
destroyedjust the availability of a remedy to enforce it. A claimant's right to a day in
court is subject to reasonable procedural requirements (cf. Thran v. District Court, 79 Nev.
176, 380 P.2d 297) and may be lost by the failure to comply with them. Though we recognize
that a claim may be dismissed under 41(e) before the statute of limitations has run against it
(the situation here involved), we believe that 41(e) must be given its intended effect, to the
same extent as we accord respect to the rule of limitations when presented with a problem
coming within its sphere. For the reasons expressed, we affirm the summary judgment
entered below.
____________
79 Nev. 473, 473 (1963) Bankers Trust Co. v. Bordwell
BANKERS TRUST COMPANY, a Nevada Corporation, HENRY GIROLA and DIANE
LINK GIROLA, Appellants, v. C. P. BORDWELL and BETTY E. BORDWELL, PIONEER
TITLE INSURANCE COMPANY OF NEVADA, a Nevada Corporation, Respondents.
No. 4629
November 21, 1963 386 P.2d 732
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Action by trustor and holders of second deed of trust against realty to enjoin sale thereof
pursuant to power of sale contained in first deed of trust against the same property. From
orders of the lower court vacating temporary restraining order and denying motion for
temporary injunction, plaintiffs appealed. The Supreme Court, McNamee, J., held that after
default in payments due under first deed of trust for more than one year, neither trustor nor
holders of second deed of trust were entitled to enjoin sale of such property pursuant to power
of sale contained in first deed of trust, in absence of agreement by beneficiaries under first
deed of trust after default to extend the time of payment.
Affirmed.
Harry A. Busscher, of Reno, for Appellants.
Sidney W. Robinson and Chester C. Swobe, of Reno, for Respondents.
1. Mortgages.
Whether, after default in payments due under deed of trust against realty, beneficiaries thereunder orally
agreed to extent time of payment was question for trial court under conflicting evidence in action by trustor
and holders of second deed of trust against same property to enjoin sale of such property pursuant to power
of sale contained in first deed of trust.
2. Mortgages.
After default in payments due under deed of trust against realty for more than one year, neither trustor nor
holders of second deed of trust against same property were entitled to injunction against sale of
such property pursuant to power of sale contained in first deed of trust, in absence of
agreement by beneficiaries under first deed of trust after default to extend time of
payment.
injunction against sale of such property pursuant to power of sale contained in first deed of trust, in absence
of agreement by beneficiaries under first deed of trust after default to extend time of payment.
OPINION
Appellants were the plaintiffs below and the respondents were the defendants.
This is an action brought by the plaintiffs to enjoin the defendants from selling certain
unimproved real estate located in the City of Reno pursuant to a power of sale contained in a
deed of trust covering said property executed by Bankers Trust Company, as trustor, wherein
Pioneer Title Insurance Company of Nevada is named trustee, and the Bordwells the
beneficiaries. Said deed of trust secures money advanced to Bankers Trust Company by the
Bordwells in the sum of $120,000. The plaintiffs Girola hold a second deed of trust against
the same property given by Bankers Trust Company as security for its note to them in the sum
of $184,864.82.
A temporary restraining order enjoining the sale issued at the commencement of the
proceedings in the lower court was vacated and a motion for a preliminary injunction was
denied. Appeal is from the order vacating the temporary restraining order and from the order
denying plaintiffs' motion for a preliminary injunction (called temporary injunction in the
court below).
Plaintiffs' sole assignment of error is that the court erred in vacating the temporary
restraining order without granting plaintiffs' petition for a preliminary injunction. They argue
that (1) defendants Bordwell after a default in the payments due under the first deed of trust
orally agreed to extend the time of payment, and (2) they would suffer irreparable injury
should the sale not be enjoined, because plaintiffs Girola would forever be deprived of any
security under their second deed of trust, and the plaintiff Bankers Trust Company would lose
its equity in the property by a sale after which there would be no right of redemption.1
would lose its equity in the property by a sale after which there would be no right of
redemption.
1

Plaintiffs' entire argument is based on the premise that there was an oral agreement to
extend the time of payment and that the value of the property was greatly in excess of the
amount due the Bordwells.
Although plaintiff Henry Girola did testify that there was an agreement to extend payment
and did express his opinion as to the value of the real property which was more than the total
due under both deeds of trust, defendant C. P. Bordwell denied that there was such an
agreement for extension and defendants' expert witness testified that the property was worth
$131,000. This latter estimate was based on a comparison with other sales in the vicinity.
The default of Bankers Trust Company continued for one year before the Bordwells
recorded their notice of default on August 22, 1962. At that time there was owing to the
Bordwells the principal sum of $120,000, plus the additional sum of $18,000 to $19,000 for
accrued interest and unpaid taxes. The record shows that from the time of default the Bankers
Trust Company made frequent promises to pay the accrued interest and delinquent taxes, but
neglected so to do. Even after August 22, 1962 the Bordwells were assured by the appellants
several times in November and December of 1962 that the Bordwell note would be satisfied
substantially or in full not later than December 3, 1962. When no payment was made, the
Bordwells, on January 19, 1963, commenced publication of the notice of sale. This action to
enjoin the sale was commenced February 7, 1963.
[Headnotes 1, 2]
The conflict in the evidence was resolved in favor of the defendants. There is no reason
why they should not be permitted to sell the property under the first deed of trust.
____________________

1
From time immemorial such irreparable injury has been the lot of mortgagors and trustors who have been
unable to meet their obligations.
There is no foundation whatsoever for granting any relief to the plaintiffs.
Affirmed.
____________
79 Nev. 476, 476 (1963) Charleston Plaza, Inc. v. Bd. of Educ.
CHARLESTON PLAZA, INC., a Nevada Corporation, Appellant, v. BOARD OF
EDUCATION, LAS VEGAS UNION SCHOOL DISTRICT, Respondent.
No. 4630
December 2, 1963 387 P.2d 99
Action by successor in title to former owners against school district for decree that
successor owned a certain parcel of land. The trial court entered decree favorable to the
district, and successor appealed. The Supreme Court, Badt, C. J., held that dedication of
school site vested fee in school district for public use, and that evidence supported implied
finding that former owners who had filed plat bearing the inscription school site on a
certain area and bearing owner's certificate and dedication indicating that streets and public
utility easements were dedicated had intended to dedicate the area bearing the inscription to
school district.
Affirmed.
George E. Franklin, Jr., of Las Vegas, for Appellant.
Edward G. Marshall, District Attorney, Clark County, and John A. Porter, Deputy District
Attorney, Clark County, for Respondent.
1. Dedication.
Dedication of streets and public utility areas in owner's certificate and dedication contained on plat did
not exclude dedication of area designated on plat as school site notwithstanding rule of expressio unius est
exclusio alterius. NRS 116.040.
2. Dedication.
Dedicator's filing of plat bearing inscription school site on portion of land evidenced a dedication of the
portion as a school site. NRS 278.420.
3. Dedication.
Testimony of a former owner that he did not intend to make dedication when recording plat designating
certain area as school site but that he merely intended to indicate that the land would be reserved for sale to
school district at best raised fact question of absence of animus dedicandi in action against district for
decree that corporate successor to title held by former owners was owner of land.
4. Quieting Title.
Conclusion that by filing of plat, valid and binding dedication of area designated school site on plat had
taken place, implied a finding of intention to dedicate.
5. Dedication.
Evidence supported implied finding that former owners who had filed plat bearing the inscription school
site on a certain area and bearing owner's certificate and dedication indicating that streets and public
utility easements were dedicated had intended to dedicate the area bearing the inscription to school district
sued for decree that successor in title to former owners owned the land.
6. Dedication.
Dedication of school site vested fee in school district for public use. NRS 116.060.
OPINION
Charleston Plaza, Inc., a corporation, successor to the title theretofore held by William
Peccole, L. L. Ousley, Lillian V. Ousley, Charles L. Martin, Ollie Mae Martin, Don D.
Atkins, and Mae Atkins, commenced this action below, seeking a decree that it was the
owner of the parcel of land involved in this litigation and that the defendant Board of
Education, Las Vegas Union School District, be adjudged to have no estate or interest
whatsoever in or to said parcel, and that defendant be forever barred from asserting any claim
thereto adverse to the plaintiff. Defendant answered, stating that its correct name is Clark
County School District, and that the successors to the plaintiff had on April 1, 1953,
dedicated said premises to the successors of the defendant pursuant to a recorded map.
Several other special defenses and counterclaims were pleaded, and defendant prayed for a
decree that defendant owned said parcel of land.
and counterclaims were pleaded, and defendant prayed for a decree that defendant owned said
parcel of land. The court filed a written decision holding for the defendant Board of
Education on two grounds: (1) that the parcel of land had been dedicated to the public as a
school site, and (2) that defendant acquired title by prescription.
As we agree that there was sufficient evidence before the trial court to support its finding
that there had been a dedication of the land to the public and that the judgment accordingly
must be affirmed, it will not be necessary to discuss the question of prescriptive title.
Following the court's written decision, it filed formal findings, conclusions, and judgment
in which it found that the group comprising Peccole and others hereinabove named, and who
were generally referred to as the owners, in 1952 submitted to the planning commission of
Clark County a preliminary map showing a nominal acreage of 40 acres of land, but in the
instant case, the acreage was approximately 36.1 acres, wherein the parcel in question was
shown as devoted to school purposes; that such owners in April, 1953, dedicated the land
described to the successors of the defendant Board of Education, Las Vegas Union School
District, pursuant to a recorded Final Subdivision map, recorded in the office of the county
recorder of Clark County, and that Clark County School District is the successor by operation
of the law to the Las Vegas Union School District. The court concluded that a valid and
binding dedication resulted on April 1, 1953,
1
when the successors to the plaintiff, namely,
William Peccole and others, recorded the map in the office of the county recorder.
2

Appellant assigns error on the ground that the record does not disclose either a specific act
of dedication or an intent to dedicate. We turn then to the facts. On the Final Subdivision plat
filed in the office of the county recorder a portion thereof, comprising approximately one
and one-half acres in the extreme southwest corner, was designated thereon as "School
Site."
____________________

1
The record discloses that the map containing the dedication was actually recorded April 29, 1953.

2
The court also recited and found the essential facts supporting a continued, open, notorious, hostile, and
exclusive possession beyond the period of limitations and concluded that defendant had acquired title by adverse
possession. As noted, this phase of the case does not require discussion.
Final Subdivision plat filed in the office of the county recorder a portion thereof, comprising
approximately one and one-half acres in the extreme southwest corner, was designated
thereon as School Site. Such site abuts along its entire south boundary on the entire north
boundary of a tract known as the Crestwood School, operating as a public school. This map
bears the recorder's certificate of filing dated April 29, 1953; the engineer's certificate of the
survey and the map as having been made at the instance of William Peccole et al., and that it
is in all respects correct, sworn to November 26, 1952; the city engineer's certificate that all
provisions of the planning commission act and applicable local ordinances have been
complied with, and that the map is technically correct, dated April 1, 1953; the approval of
the chairman of the Regional Planning Commission of Clark County, dated September 11,
1952; and the approval and acceptance on April 1, 1952, by the city clerk and mayor on
behalf of the Board of Commissioners of the City of Las Vegas, Clark County. It also
contains the Owner's Certificate and Dedication, executed by the group of owners
hereinabove named, pursuant to NRS 278.420, and acknowledged by them December 2,
1952. It is to be noted, and upon this particular reliance is placed by appellant, that by such
certificate the owners do hereby offer for dedication all the streets as indicated and outlined
hereon for the use of the public. The public utility easements as indicated on the plat are
hereby dedicated for the use of public utilities only. Such certificate contains no direct
reference to the dedication of the School Site.
[Headnote 1]
Under the rule of expressio unius est exclusio alterius, appellant insists that the dedication
of the streets and public utility areas is an exclusion of the dedication of the school site.
Section 116.040 NRS provides for the filing of such maps and matters connected therewith
3
and section 116.060 NRS provides as follows: "Such maps and plats when made,
acknowledged, filed and recorded with the county recorder shall be a dedication of all
such avenues, streets, lanes, alleys, commons or other public places or blocks and
sufficient to vest the fee of such parcels of land as are therein expressed, named, or
intended, for public uses for the inhabitants of the town or for the public for the uses
therein named or intended."
____________________

3
Mr. Peccole, one of the owners, was a member of the Board of City Commissioners accepting the
subdivision map as provided in NRS 116.040(4).
116.060 NRS provides as follows: Such maps and plats when made, acknowledged, filed
and recorded with the county recorder shall be a dedication of all such avenues, streets, lanes,
alleys, commons or other public places or blocks and sufficient to vest the fee of such parcels
of land as are therein expressed, named, or intended, for public uses for the inhabitants of the
town or for the public for the uses therein named or intended. The title given to this section
by the code revisor is Dedication of Streets and Public Places by Recording Plat. This
section corresponds with NCL 1345 and RL 958, and with the statute of 1905. The recording
of the plat was followed by the sale of a number of lots, and by occupation of the land by the
school district and by the construction of a 7-foot cyclone fence completely surrounding the
parcel and having one gate, controlled by the defendant. The parcel was used as a playground
for the school children during the noon recess and other recesses and was under teachers'
supervision at these times.
The case of Allied American Inv. Co. v. Pettit, 65 Ariz. 283, 179 P.2d 437, is directly in
point. In that case a park was shown on the plat, but the owner's certificate of dedication
made no reference to said park. Lots were sold and the purchasers used the park. The issue
declared by the Arizona court was: Did the dedicator in the instant case by inscribing the
word Park' on Block 5 comply with [the statute] wherein it says that the owner shall by
proper dedication, dedicate the avenues, streets, parks' etc. The court held: We are of the
opinion that the entire plat as filed, showing some 17 blocks, 11 streets, numerous alleys, and
hundreds of lots, with their specific locations, dimensions, and boundaries, together with the
block labeled Park,' constitutes the entire dedication. The rule expressio unis est exclusio
alterius' has no application. The entire plat expressed everything; nothing was left
unexpressed. (Emphasis supplied.) The making and recordation of the plat coupled with the
sales of lots therein constituted the dedication. * * * The use by the purchasers of lots and the
general public constituted a sufficient acceptance. * * *
By the statutes in effect at the time the dedication was made, the fee in the dedicated property
passed to the county in trust for the public and for the uses described. The Arizona court
applied statutes not dissimilar from those of Nevada.
[Headnote 2]
The issue in the case at hand can be stated thus. Did the dedicator by inscribing the words
School Site on the plat evidence an intent to dedicate said portion in accord with NRS
278.420? The learned district judge held that the filing of the plat itself evidenced a
dedication. With this we agree. 6 Powell on Real Property 351; Allied American Inv. Co. v.
Pettit, supra; cf. McKernon v. City of Reno, 76 Nev. 452, 357 P.2d 597; Shearer v. City of
Reno, 36 Nev. 443, 136 P. 705.
[Headnotes 3-6]
Appellants rely upon the absence of a finding by the court that there was an intent to
dedicate. In this respect they rely upon the testimony of Peccole that when recording the plat
containing the designation of School Site, it was not his intention to make a dedication but
merely to indicate that this land would be reserved for sale to the school district at some
figure to be agreed upon. Appellant therefore claims an absence of animus dedicandi. Such
testimony, however, at the best but raised a question of fact for determination by the trial
court. Daugherty v. Sowers, 243 Minn. 572, 68 N.W.2d 866. The lower court's conclusion
that by filing the plat, a valid and binding dedication had taken place implies a finding that
there was an intent to dedicate. Chisholm v. Redfield, 75 Nev. 502, 347 P.2d 523. The record
amply supports such finding. Under NRS 116.060 the dedication vested the fee in the
defendant (now Clark County School District) for public use.
Affirmed with costs.
____________
79 Nev. 482, 482 (1963) Cloward v. Pappas
E. R. CLOWARD and VERNA W. CLOWARD, Husband and Wife, and G. C. RODGERS
and ERMA C. RODGERS, Husband and Wife, Appellants, v. NICK PAPPAS, VASALIE
PAPPAS, ALEX POULOS, MARGARET POULOS, PAUL PAPPAS, AND JUNE
PAPPAS, Doing Business as PONY EXPRESS MOTEL, Respondents.
No. 4634
December 5, 1963 381 P.2d 97
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Motel guests' action against motel owners for loss of personal property left in motel room,
for personal injuries and incidental medical expenses and for loss of automobile as result of
motel fire. The lower court entered a judgment for the motel owners and the guests appealed.
The Supreme Court, Thompson, J., held that the evidence sustained finding of no negligence
on part of motel owners and the rule respecting innkeepers' common law insurer's liability
was not applicable to automobile parked in adjoining carport by guest who kept the keys.
Judgment affirmed.
Loyal Robert Hibbs, of Reno, for Appellants.
Vargas, Dillon & Bartlett and Alex. A. Garroway, of Reno, for Respondents.
1. Innkeepers.
Evidence in motel guests' action against motel owners for loss of personal property left in motel room and
for personal injuries and incidental medical expenses resulting from motel fire supported findings that there
was no negligence on part of motel owners or their agent which caused fire and that there was no
negligence by motel owners or agent which caused damage to or loss of property of guests or bodily injury
to them. NRS 651.010.
2. Innkeepers.
Generally, an innkeeper is practically an insurer of safety of property entrusted to his care by guests, and,
in event of loss, may exonerate himself from liability only by showing that such loss or injury resulted from
an act of God, act of the public enemy, or from fault of the guest himself. NRS 1.030.
3. Innkeepers.
Rule respecting innkeepers' common law insurer's liability for loss of goods entrusted to his care by guest
was not applicable to loss of motel guest's automobile parked in adjoining carport before fire by guest who
had kept keys. NRS 1.030.
4. Innkeepers.
There was no bailment of automobile by motel guest to motel owner where guest parked automobile in
adjoining carport and kept keys.
OPINION
This litigation arose from the fire of March 14, 1961 which destroyed the Pony Express
Motel on South Virginia Street in Reno, Nevada. Mr. and Mrs. Cloward and Mr. and Mrs.
Rodgers, invited guests of the motel, joined as plaintiffs in an action against the owners. They
sought to recover damages for the loss of personal property left in their rented motel rooms,
for the loss of Mr. Cloward's car which was parked in a carport adjoining his room, and for
personal injuries and incidental medical expenses incurred by each. As to the chattels which
were left in their rooms the plaintiffs charge the owners with gross negligence. NRS
651.010.
1
The claim of Mr. Cloward for the loss of his car is based on a common law
concept that an innkeeper is liable as an insurer for the loss of his guests' personal property
from fire. For the personal injury claims and kindred expenses a third standard for recovery is
urgedthat the owners breached their duty of ordinary care to invitees. Worth v. Reed, 79
Nev. 351, 384 P.2d 1017; Gunlock v. New Frontier Hotel, 78 Nev. 182, 370 P.2d 682.
The case was presented to the court without a jury. Only the issue of liability was tried. If
liability was found, then the claims for damages were to be litigated later.
____________________

1
651.010. Civil liability of innkeepers limited. No owner or keeper of any hotel, inn, motel, motor court, or
boardinghouse or lodginghouse in this state shall be civilly liable after July 1, 1953, for the loss of any property
left in the room of any guest of any such establishment by reason of theft, burglary, fire or otherwise, in the
absence of gross neglect upon the part of such keeper or owner.
later. NRCP 42(b). The court found that the owners were not liable to the plaintiffs. We are
asked to review this ruling.
The Pony Express Motel was composed of two strings of units separated by an inner
courtyard. One string ran along the southern boundary of its property, and the other along the
northern boundary. The office was to the east and adjoined the manager's living quarters.
Extending west from the office and the manager's unit was the southerly series of motel
rooms. They adjoined each other in pairs, each pair being separated by double carports. There
were oil burning, forced air furnaces in the rear of the carports for units 3 and 10. Mr. and
Mrs. Cloward occupied unit 6, and Mr. and Mrs. Rodgers unit 7 of the southerly series of
units. The Cloward car was in the carport adjoining his motel room.
The fire probably started near 10 p.m. The exact time of its inception is not known. The
point of origin was believed to be the furnace room adjacent to unit 3. The sole evidence as to
the cause of the conflagration was the opinion offered by an investigator of the Reno Fire
Department. He believed that a strong wind caused a downdraft in the flue, forcing the fire
out of the furnace firebox and igniting nearby material. He supposed that, but for the strong
wind, the fire would not have occurred. One or two days before, the furnace had been
repaired. Whether it was in good working order on the day of the fire was a controverted
issue of fact which the court resolved in favor of the owners.
[Headnote 1]
A guest in unit 3 notified the motel manager of the fire, who, in turn, telephoned the fire
department. After doing so, the manager and her husband gathered a few personal belongings
(the dog, a bird cage, some medicines, etc.), got into their car, and left. She was concerned for
her husband's welfare as he was afflicted with a heart disease. The first fire unit was on the
scene by 10:21 p.m. (within 4 minutes after receiving notice) and radioed for additional help.
The motel manager did not notify any of the motel guests that a fire was in progress.
Her husband had requested an unknown volunteer to do so. The record is silent as to what, if
anything, the unknown helper did. None of the plaintiffs was notified. They learned of the fire
themselves and evacuated in haste, leaving behind the chattels for which they now seek a
recovery in money damages. We do not know whether a prompt warning by the motel
manager would have enabled the plaintiffs to avoid damage, nor indeed whether a warning
could have been given under the circumstances. Both the time available to warn the motel
guests, and the speed with which the fire spread from unit to unit is not made clear.
Reasonable, but opposing, inferences could be drawn from the evidence introduced. From
these facts and from the inferences to be drawn therefrom, the trial judge concluded: There
was no negligence on the part of defendants or their agent which caused the fire, and there
was no negligence by defendants or their agent which caused damage to or loss of the
property of plaintiffs or bodily injury to them. Mrs. Taylor (the manager) and her husband
acted as reasonably prudent persons under all the circumstances. There was no credible
evidence as to time of the fire, its spread or the acquisition of knowledge of its existence. A
determination in favor of the defendants necessarily results. It seems to us that each of the
trial court's conclusions could properly be made from the facts as we have related them. The
issues of negligence and proximate cause were fact issues about which reasonable minds
could differ. Therefore we affirm the judgment denying plaintiffs a recovery for their personal
injuries and related expenses, as their claims were premised upon the charge of ordinary
negligence. We must also affirm the judgment denying plaintiffs relief for the loss of property
left in their motel rooms, for if the defendants were not negligent, a fortiori, they were not
grossly negligent so as to impose a liability under NRS 651.010.
There remains for determination the issue posed by the claim of Mr. Cloward for the loss
of his car which was parked in the carport adjoining his motel room. As to this claim it is
urged that the motel owners have the liability of an insurer.
to this claim it is urged that the motel owners have the liability of an insurer. The trial court
did not deal specially with this proposition. We must assume from the conclusions made by
that court (hereinbefore quoted) that a liability for the property of guests not left in their
rooms would exist only if the owners were found to be negligent. That court apparently
rejected the so-called common law insurer's liability rule. We must decide whether it was
correct in doing so.
[Headnotes 2-4]
NRS 1.030 provides that the common law is the rule of decision in Nevada unless
repugnant to or in conflict with the laws or constitution of this State or of the United States.
What was the common law rule which the plaintiffs ask us to apply? In general terms it is that
an innkeeper is practically an insurer of the safety of property entrusted to his care by a guest
and, in the event of loss, he may exonerate himself from liability only by showing that such
loss or injury resulted from an act of God, or of the public enemy, or from the fault of the
guest himself. The cases regarding this rule are collected in the annotations, 63 A.L.R.2d 495
and 156 A.L.R. 233. See also a comment in 15 Albany Law Review 236. We do not think
that this rule has application to the case before us. Mr. Cloward's car was not entrusted to the
care of the motel operator. The possession and control of the car remained with Mr. Cloward.
He kept the keys. Sewell v. Mountain View Hotel, Inc., 45 Tenn.App. 604, 325 S.W.2d 626.
Nor was there a bailment of the car. Cf. Gaudin Motor Co. v. Wodarek, 76 Nev. 415, 356
P.2d 638; Manhattan Ins. Co. v. Central Garage, 54 Nev. 147, 9 P.2d 682.
2
The lower court
did not err in filing to apply the common law insurer's liability rule.
Affirmed.
____________________

2
Had the car been entrusted to the custody and control of the innkeeper, an interesting problem would have
been presented: Would the common law insurer's liability rule apply, the rule governing the liability of a bailee
for hire, or some other concept? We intimate no answer.
____________
79 Nev. 487, 487 (1963) Manville v. Manville
ANITA MANVILLE, Appellant, v. THOMAS F. MANVILLE, Jr., CHRISTINA
MANVILLE, PAT GASTON and JOHN SUTTON, Respondents.
No. 4637
December 10, 1963 387 P.2d 661
Judge.
Independent action to set aside decree of divorce entered in plaintiff's favor. The lower
court granted the motion to dismiss and an appeal was taken. The Supreme Court, McNamee,
J., held that, although alleged fraud consisting of twin sister's impersonation of wife in
divorce proceeding was extrinsic, where wife knew of fraud on same day that divorce decree
was granted but took no action to set decree aside until nearly seven years later, proceeding
was barred by the statute of limitations.
Affirmed.
Harry E. Claiborne, of Las Vegas, for Appellant.
Bradley & Drendel, of Reno, for Respondents.
1. Divorce.
Fraud consisting of failure to establish proper residence for divorce was intrinsic. NRCP 60(b).
2. Divorce.
Relief from intrinsic fraud in divorce proceeding must be sought not later than six months after decree is
entered. NRCP 60(b).
3. Judgment.
Purpose of rule regarding independent action to relieve party from judgment, order, or proceeding, or to
set aside judgment for fraud upon court, is to afford relief upon proof of extrinsic fraud. NRCP 60(b).
4. Judgment.
Six months' limitation has no application to action for relief from judgment because of extrinsic fraud.
NRCP 60(b).
5. Divorce.
Although alleged fraud consisting of twin sister's impersonation of wife in divorce proceeding was
extrinsic, where wife knew of fraud on same day that divorce decree was granted but took no action to set
decree aside until nearly seven years later, proceeding was barred by the statute of
limitations.
seven years later, proceeding was barred by the statute of limitations.
6. Limitation of Actions.
When defense of statute of limitations appears from complaint itself, motion to dismiss is proper.
OPINION
Pursuant to NRCP 60(b) appellant filed this independent action in the court below to set
aside a decree of divorce entered in her favor on September 13, 1955 against respondent
Thomas F. Manville, Jr., upon the ground of fraud. The alleged fraud consisted of coercion
and threats of bodily harm on the part of said respondent which forced the appellant to go to
Reno, Nevada, and file a complaint for divorce in the district court there without establishing
a proper residence, and that thereafter respondent fraudulently connived to have appellant's
twin sister, Juanita Ingraham, impersonate appellant at the trial, thereby surmounting
appellant's refusal to proceed with her action. Upon Juanita's testimony the divorce was
granted. It is not denied that on September 13, 1955 appellant initiated the divorce action by
signing and verifying the complaint for divorce.
Appellant learned of the impersonation on the same day the decree of divorce was granted,
and accepted the benefits of the divorce by way of alimony.
1
On February 24, 1957 she and
respondent John Sutton were married, which marriage was not terminated until June 2,
1960.
____________________

1
In this connection, respondents' brief recites: Respondents respectfully call to the Court's attention that the
Trial Court took judicial notice of the property settlement incorporated in the Decree of Divorce which
Appellant, by this action, seeks to have set aside. Immediately following the entry of the Decree of Divorce on
September 13, 1955, Appellant presented a certified copy of the Decree of Divorce to the First National Bank of
Nevada and picked up $120,000, per the property settlement agreement and signed an escrow receipt therefor. In
addition, the property settlement agreement incorporated in said Decree of Divorce provides for payment to
Appellant of the sum of $1,000 per month for a period of ten years, commencing October 1, 1955. These
monthly payments have been made by Respondents pursuant to the Decree of Divorce and have been accepted
by Appellant. These statements are not denied by appellant.
24, 1957 she and respondent John Sutton were married, which marriage was not terminated
until June 2, 1960. Subsequent to September 13, 1955 respondent Thomas F. Manville, Jr.,
married Christina Manville, one of the respondents, who is still his wife.
Upon these facts appearing from the complaint, the lower court granted respondent's
motion to dismiss.
[Headnotes 1, 2]
Insofar as those elements of the alleged fraud consisting of threats of bodily harm and
coercion are concerned, had appellant appeared at the trial, this claim of fraud would have
been intrinsic. Calvert v. Calvert, 61 Nev. 168, 122 P.2d 426. Whether her failure to appear at
the trial made this fraud extrinsic we need not decide for the reasons hereinafter stated. The
fraud consisting of the failure to establish a proper residence for divorce was intrinsic. Colby
v. Colby, 78 Nev. 150, 369 P.2d 1019; Confer v. District Court, 49 Nev. 18, 234 P. 688, 236
P. 1097. Relief from intrinsic fraud, under NRCP 60(b), must be sought not later than six
months after the decree was entered.
[Headnote 3]
NRCP 60(b) provides in part: This rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding, or to set aside a
judgment for fraud upon the court.
[Headnote 4]
The purpose of this part of the rule is to afford relief upon proof of extrinsic fraud, and the
said six months' limitation has no application.
The fraud consisting of Juanita's impersonation of appellant is extrinsic. Murphy v.
Murphy, 65 Nev. 264, 193 P.2d 850; Chamblin v. Chamblin, 55 Nev. 146, 27 P.2d 1061.
This fraud however was known to appellant on September 13, 1955, the same day the decree
of divorce was granted, and she took no action to set the decree aside until June 22, 1962,
when she filed this suit for relief more than six years and nine months later.2
decree aside until June 22, 1962, when she filed this suit for relief more than six years and
nine months later.
2

[Headnotes 5, 6]
The statute of limitations is applicable to a proceeding to set aside a decree of divorce
procured by extrinsic fraud.
3
Howard v. Howard, 69 Nev. 12, 239 P.2d 584. It is therefore
unnecessary to discuss the question of laches.
When the defense of the statute of limitations appears from the complaint itself, a motion
to dismiss is proper. Cf. Nevada-Douglas Consolidated C. Co. v. Berryhill, 58 Nev. 261, 75
P.2d 992. That the statute was tolled, as claimed by appellant, does not appear from the
record on appeal.
Affirmed.
____________________

2
Appellant's argument that she did not know the decree could be challenged until her marriage to Sutton was
terminated and that therefore the statute of limitations, if applicable in this case, would not commence to run
until that time is without merit. Her complaint alleges: In the month of October, 1955 the plaintiff herein
contacted her said attorney, Mr. W. C. McCluskey, to inquire as to the validity of the divorce, and was advised
by said attorney that it was valid upon its face, that is that it was considered legal until such time as proceedings
were instituted to correct the fraud perpetrated upon the court on the 13th day of September, 1955.

3
We are not here concerned with a decree which is void on its face.
____________
79 Nev. 490, 490 (1963) Wilmurth v. State
BENNIE WILMURTH and MARY ANN WILMURTH, Appellants, v. THE STATE OF
NEVADA, and DR. JULES MAGNETTE, Acting Superintendent, Respondents.
No. 4705
December 13, 1963 387 P.2d 251
Appeal from an order of the First Judicial District Court, Ormsby County; Richard L.
Waters, Jr., Judge. On motion to dismiss appeal.
Proceeding wherein an appeal was taken from an order of the lower court dismissing the
state as one of several defendants.
several defendants. The Supreme Court held that the order was not a final order and appeal
could not be taken therefrom absent any express determination that there was no just reason
for delay.
Motion granted and appeal dismissed.
Bradley & Drendel, of Reno, for Appellants.
Harvey Dickerson, Attorney General, and Gabe Hoffenberg, Chief Deputy Attorney
General, for Respondents.
Appeal and Error.
Order dismissing state as a defendant in action in which it was one of several defendants was not a final
order and appeal could not be taken therefrom absent any express determination that there was no just
reason for delay. NRCP 54(b), 72(b).
OPINION
Per Curiam:
On December 4, 1963 respondent, the State of Nevada, filed its motion herein to dismiss
the appeal of appellants from an order dismissing the State of Nevada as a party defendant
made and entered on the 10th day of June, 1963. Several grounds are stated in the motion for
dismissal of the appeal. Only one need be considered.
Respondent State of Nevada maintains that an order dismissing one of several defendants
is not an appealable order as it is not a final judgment. NRCP 72(b) specifies determinations
from which an appeal may be taken, one of which is that an appeal may be taken from a final
judgment in an action or proceeding commenced in the court in which the judgment is
rendered. It is the contention of appellant that the order dismissing the State of Nevada as a
party defendant is a final judgment within the meaning of this rule. This contention must be
rejected.
NRCP 54(b) provides in part that when more than one claim for relief is presented in an
action, the court may direct the entry of a final judgment upon one or more but less than all of
the claims only upon an express determination that there is no just reason for delay and
upon an express direction for the entry of judgment.
express determination that there is no just reason for delay and upon an express direction for
the entry of judgment. In the absence of such determination and direction, any order or other
form of decision, however designated, which adjudicates less than all the claims shall not
terminate the action as to any of the claims, and the order or other form of decision is subject
to revision at any time before the entry of judgment adjudicating all the claims.
The lower court in directing entry of judgment in favor of this movant on June 10, 1963
did not make an express determination that there is no just reason for delay, as provided by
NRCP 54(b). Therefore, the order of dismissal entered on June 10, 1963 was not final. Tobin
Packing Co. v. North American Car Corp., 2 Cir., 188 F.2d 158; Garbose v. George A. Giles
Co., 1 Cir., 183 F.2d 513.
The motion to dismiss the appeal is granted without prejudice to the right of the appellants
to present any grievance to this court after a final judgment on the merits in the court below.
____________
79 Nev. 492, 492 (1963) Ex Parte Hansen
In the Matter of the Application of ROY PETER
HANSEN for a Writ of Habeas Corpus.
No. 4710
December 18, 1963 387 P.2d 659
Original proceeding. Application of Roy Peter Hansen for a writ of habeas corpus.
Habeas corpus case wherein petitioner who was being detained in county jail on robbery
charge claimed that he was entitled to dismissal of the charge for failure to set second trial
within 60 days after declaration of mistrial. The Supreme Court, McNamee, J., held that fact
that calendar was entirely occupied with criminal matters prior to date set for second trial was
good cause for failing to bring defendant to trial within 60 days regardless of whether the
matters already set were of lower priority or another department was able and would
consent to accept assignment of the case for trial within the 60-day period.
were of lower priority or another department was able and would consent to accept
assignment of the case for trial within the 60-day period.
Proceeding dismissed.
Earl M. Hill, of Reno, for Petitioner.
William J. Raggio, District Attorney, and Herbert F. Ahlswede, Deputy District Attorney,
Washoe County, for Respondent.
1. Criminal Law.
Statute makes it imperative to order dismissal of information unless good cause is shown for not bringing
defendant to trial within 60 days, and prosecution has burden of showing good cause. NRS 178.495.
2. Criminal Law.
Statute providing 60-day period for bringing defendant to trial after finding of indictment or filing of
information is intended to prevent arbitrary, willful, or oppressive delays. NRS 178.495.
3. Criminal Law.
Prosecution was not required to show that criminal matters already set during 60-day period following
mistrial were prosecutions for felony, although defendant was in custody. NRS 174.510, 174.520,
178.495.
4. Criminal Law.
Statute regarding order of disposition of issues on calendar was intended to govern action of courts in
cases wherein clerk prepares criminal calendars in accordance with statute regarding calendar of criminal
actions. NRS 174.510, 174.520.
5. Criminal Law.
That calendar was entirely occupied with criminal matters prior to date set for second trial following a
mistrial was good cause for failing to bring defendant to trial within 60 days after mistrial, regardless of
whether the matters already set were of lower priority or another department was able and would consent to
accept assignment of the case for trial within the 60-day period. NRS 174.510, 174.520, 178.495.
OPINION
This is an original proceeding for a writ of habeas corpus.
Petitioner is being detained in the Washoe County jail on a charge of robbery. An
information was filed to which he pleaded not guilty.
to which he pleaded not guilty. His initial trial which commenced on September 23, 1963
terminated in a mistrial on September 24, 1963. On the latter date the district court set
December 16, 1963 as the date for the second trial over petitioner's objection that he was not
being brought to trial within 60 days after the mistrial.
All of the proceedings in the district court took place in Department 2 thereof.
The oral arguments herein were heard on December 13, 1963 at which time an order was
entered denying the writ, this court at that time reserving the right to file a written opinion at
a later date.
It appears from the agreed statement of facts that more than 60 days after the mistrial
petitioner moved said district court for an order dismissing the information.
In denying the motion on December 10, 1963 the district judge held:
1. That each department of the Second Judicial District Court of the State of Nevada is
autonomous; that each department is without power to assign or transfer criminal cases to any
other department for trial.
2. That the trial calendar of Department 2 of said Court was entirely occupied with
settings of criminal matters during the period from September 24, 1963, to December 16,
1963; that said condition of the calendar existed at the time of the determination of
Petitioner's mistrial on September 24, 1963.
3. That the foregoing facts and circumstances constitute good cause within N.R.S.
178.495 for the setting of Petitioner's trial beyond the statutory sixty (60) day period.
At the hearing on the motion to dismiss the information, although the district judge stated
that the case could not be transferred to another department for trial, no showing was made
with respect to the calendars of the other three departments of the district court. Nor was any
showing made with respect to the nature of those criminal matters occupying the calendar in
Department 2.
[Headnote 1]
NRS 178.495 provides:
If a defendant whose trial has not been postponed upon his application is not brought to
trial within 60 days after the finding of the indictment or filing of the information, the court
shall order the indictment or information to be dismissed, unless good cause to the contrary is
shown.
It is imperative under this statute for the district court to order dismissal of an information
on motion of the defendant if he is not brought to trial within the statutory period, unless
good cause is shown, and the burden of showing good cause for delay is on the prosecution.
Ex parte Morris, 78 Nev. 123, 369 P.2d 456.
[Headnote 2]
The statute is intended to prevent arbitrary, willful, or oppressive delays. Ex parte Larkin,
11 Nev. 90.
In order to comply with the statute, the court would have been obligated to set the trial for not
later than November 27, 1963. In setting it for December 16, 1963, 23 days later, it does not
appear to us, under the circumstances of this case, that the court's action was arbitrary,
willful, or oppressive.
As stated in State v. Squier, 56 Nev. 386, 403, 54 P.2d 227, 234: It is undesirable that one
charged with crime should be held in prison, after pleading not guilty and demanding a
speedy trial, for a longer period of time than is reasonably necessary. On the other hand, a
defendant cannot require of the trial court that it disregard the condition of its calendar, the
pendency of other cases, public expense, and the convenience or health of judge, court
officers, and jurors. See also Ex parte Groesbeck, 77 Nev. 412, 365 P.2d 491.
[Headnote 3]
Petitioner contends that it was incumbent on the prosecution to show that the criminal
matters which were already set during the 60-day period were prosecutions for felony where
the defendant was in custody; otherwise, under NRS 174.520, they would not have priority
over petitioner's trial. We reject this contention.
[Headnote 4]
NRS 174.520 was intended to govern the action of courts in those cases where the clerk
prepares criminal calendars in accordance with NRS 174.510.
[Headnote 5]
We are of the opinion that when it appeared that the court's calendar was entirely occupied
with criminal matters prior to December 16, 1963 which had already been set for hearing, the
prosecution had satisfied its burden of showing good cause why there could not be an earlier
trial, and the prosecution is not required to go further to show that any of those matters
already set were of lower priority, or that another department of the court was able and would
consent to accept an assignment of petitioner's case for trial within the 60-day period.
Our prior order denying the writ will not be disturbed. It is ordered that this proceeding be
dismissed.
____________
79 Nev. 496, 496 (1963) Nevada Indus. Comm'n v. Underwood
NEVADA INDUSTRIAL COMMISSION, Appellant,
v. SYLVIA UNDERWOOD, Respondent.
No. 4636
December 20, 1963 387 P.2d 663
Appeal from judgment of the First Judicial District Court, Ormsby County; Frank B.
Gregory, Judge.
Widow of deceased employee brought action against the Nevada Industrial Commission to
recover death benefits. The lower court entered judgment adverse to the Commission, and the
Commission appealed. The Supreme Court, Thompson, J., held that where employee was
hired in Idaho, was regularly employed in Nevada, and was accidentally killed in Utah, and
employee's widow presented claim for compensation to Industrial Accident Board of Idaho,
and compensation carrier for employer paid death benefits provided for by Idaho law without
formal award, and widow reserved her rights to claim death benefits under Nevada
Industrial Insurance Act, widow irrevocably waived right to compensation under Nevada
Industrial Insurance Act providing that commencement of proceeding in another state to
recover compensation shall constitute irrevocable waiver of any and all compensation in
Nevada.
rights to claim death benefits under Nevada Industrial Insurance Act, widow irrevocably
waived right to compensation under Nevada Industrial Insurance Act providing that
commencement of proceeding in another state to recover compensation shall constitute
irrevocable waiver of any and all compensation in Nevada.
Judgment reversed.
William J. Crowell, of Carson City, for Appellant.
Goldwater, Taber and Hill, of Reno, for Respondent.
1. Workmen's Compensation.
Workmen's Compensation Act of more than one state may apply to single compensable injury, so long as
each state has relevant interest.
Where Workmen's Compensation Act of more than one state applies to injury, successive awards are
permissible in absence of contravening statutory provision purporting to bar second recovery, but generally
amount paid on first award will be credited on second.
Exclusive remedy clause commonly present in statutes governing workmen's compensation is exclusive
only in sense that no other common law or statutory remedy under local law may be sought and does not
bar foreign compensation proceeding.
Where employee was hired in Idaho, was regularly employed in Nevada, and was accidentally killed in
Utah, and employee's widow presented claim for compensation to Industrial Accident Board of Idaho, and
compensation carrier for employer paid death benefits provided for by Idaho law without formal award,
widow irrevocably waived right to compensation under Nevada Industrial Insurance Act providing that
commencement of proceeding in another state to recover compensation shall constitute irrevocable waiver
of compensation in Nevada. NRS 616.101 et seq., 616.045, 616.050, 616.370, 616.520, 616.530.
OPINION
Action was brought against the Nevada Industrial Commission to recover death benefits
allegedly due the surviving widow and three minor children of Robert Underwood. Following
a pre-trial conference, at which an agreed statement of facts was reached, the case was
submitted for decision without trial.
an agreed statement of facts was reached, the case was submitted for decision without trial.
The sole question presented was whether the plaintiffs had irrevocably waived their rights to
compensation under the laws of Nevada. NRS 616.530(1).
1
The lower court found that a
waiver did not occur and entered judgment for the plaintiffs. The Commission appeals.
Robert Underwood was employed by Holmes Construction Company, a subcontractor of
Morrison-Knudson Company who had been engaged to perform highway construction work
near Austin, Nevada. Each company had accepted the terms and provisions of the Nevada
Industrial Insurance Act. Employees of Holmes Construction were also covered under the
Workmen's Compensation Law of Idaho.
Underwood was hired in Idaho. He was an equipment operator. The performance of his
employer's subcontract in Nevada was to require about six weeks. On August 17, 1957
Underwood boarded his employer's private plane at Austin, Nevada, destination Hayburn,
Idaho. The purpose of the trip was to get equipment from the shop at Hayburn for use on the
Nevada job. Enroute to Hayburn mechanical trouble developed. The plane was forced to land
at Lucin, Utah. Underwood alighted from the plane before its propeller stopped. He
apparently walked into the path of the rotating propeller and was instantly killed. The parties
to this case agree that his death arose out of and in the course of his employment. NRS
616.520.
2

A claim for benefits was first presented to the Nevada Industrial Commission and rejected.
Subsequently a claim was presented to the Industrial Accident Board of Idaho.
____________________

1
NRS 616.530(1) reads: 1. If an employee who has been hired or is regularly employed in this state
receives personal injury by accident arising out of and in the course of such employment outside this state, and
he, or his personal or legal representatives, dependents or next of kin shall commence any action or proceeding
in any other state to recover any damages or compensation on account of such injury or death from such
employer, the act of commencing such action or proceeding shall constitute an irrevocable waiver of any and all
compensation on account of such injury or death to which persons would otherwise have been entitled according
to the laws of this state.

2
NRS 616.520 reads: 1. If an employee who has been hired or is regularly employed in this state, receives
personal injury by accident arising out of and in the course of such employment outside of
claim was presented to the Industrial Accident Board of Idaho. Following this event the
workmen's compensation carrier for Holmes Construction Company commenced paying the
death benefits provided for by Idaho law. These payments were voluntary in the sense that
they were made in the absence of either a formal award by the Idaho Industrial Accident
Board or court adjudication. The insurance carrier and the claimant agreed that the latter
reserve her rights to claim death benefits under the Nevada Industrial Insurance Act. The
Idaho payments have continued and, in addition, the plaintiffs have obtained a Nevada
judgment (from which this appeal is taken) ordering the Nevada Industrial Commission to
pay the death benefits provided for by Nevada law.
[Headnote 1]
In general terms this appeal puts into focus the successive award problem in workmen's
compensation law. Here the employee was hired in Idaho, regularly employed in Nevada, and
accidentally killed in Utah. A statute of more than one state may apply to a single
compensable injury, so long as each state has a relevant interest. 2 Larson, Workmen's
Compensation Law, Sec. 85.00, p. 358. Idaho's interest arose from the fact that Underwood
was hired there. 11 Idaho Code 72615; Alaska Packers Assoc. v. Industrial Accident
Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044. Nevada's interest flows from that
part of NRS 616.520 (regarding accidents outside the state) which provides compensation for
the injured employee (or his dependents in case of death) when regularly employed in this
state.
[Headnote 2]
In the absence of contravening statutory provision purporting to bar a second recovery,
successive awards are permissible. Industrial Commission v. McCartin, 330 U.S. 622, 67
S.Ct.
____________________
this state, he, or his dependents in case of his death, shall be entitled to compensation according to the law of this
state, and such compensation shall be the exclusive remedy of such employee or dependents.
2. The provisions of this section shall apply only to those injuries received by the employee within 6
months after leaving this state, unless prior to the expiration of such 6-month period the employer has filed with
the commission notice that he has elected to extend such coverage a greater period of time.
U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140, 169 A.L.R 1179 (where a prior Illinois award did not
preclude a later Wisconsin award because there was nothing in the Illinois statute designed to
bar additional recovery in another state); 1948 amend. Restatement, Conflict of Laws 403.
As a general rule the amount paid on the first award will be credited on the second, in accord
with an underlying policy that a claimant is entitled to no more than the highest compensation
allowed by any single state having an applicable statute.
[Headnote 3]
Our study of Idaho law in effect when the present claim arose does not disclose a provision
designed to bar additional recovery under the laws of another state.
3
It is settled that the
exclusive remedy clause commonly present in statutes governing workmen's compensation
(see NRS 616.370 and NRS 616.520; 11 Idaho Code 72-203) is exclusive only in the sense
that no other common law or statutory remedy under local law may be sought. Industrial
Commission v. McCartin, supra. That clause alone does not bar a foreign proceeding. Though
Idaho law does not bar the present proceeding in Nevada, the Nevada Industrial Commission
urges that Nevada law, NRS 616.530(1) affords a complete defense to the case, which the
lower court should have respected. We turn to discuss this central issue.
In short, NRS 616.530(1) provides that the act of commencing an action or proceeding
in another state to recover damages or compensation, shall constitute an irrevocable waiver
of any and all compensation in Nevada. The terms action and damages apparently refer to
a common law action for damages in another state. NRS 616.050. Such an action was not
commenced in Idaho.
____________________

3
In 1955 Nevada adopted such a provision. NRS 616.525. It purports to forbid a second recovery under the
laws of another state by one who has first accepted compensation or benefits under the Nevada Industrial
Insurance Act. Presumably, this provision and NRS 616.530 came about because of the United States Supreme
Court opinions in Industrial Commission v. McCartin, supra, and its predecessor Magnolia Petroleum Co. v.
Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149, 150 A.L.R. 413.
in Idaho. The terms proceeding and compensation presumably refer to a proceeding to
recover the money allowance payable under the workmen's compensation law of another
state. NRS 616.045. Whether such a proceeding occurred in this case is the point we must
determine. It is the position of the Commission that, by filing a claim for benefits with the
Industrial Accident Board of Idaho, a proceeding to recover compensation was commenced
and an irrevocable waiver of Nevada compensation resulted therefrom. Opposing this
position is the claimants' argument that the Idaho payments were voluntarily made, with an
express reservation of rights to claim death benefits under Nevada law; that there was no
award by the Idaho board; that the cases concerning successive awards are not applicable.
They urge that the prohibition of NRS 616.530(1) does not touch these circumstances.
4
Our
attention is especially called to Cline v. Byrne Doors, 324 Mich. 540, 37 N.W.2d 630, 8
A.L.R.2d 617; Industrial Exchange v. Industrial Accident Commission, 80 Cal.App.2d 480,
182 P.2d 309; Miller v. National Chair Co., 19 N.J.Misc. 275, 18 A.2d 847, affirmed 127
N.J.S. 414, 22 A.2d 804; Annot., 8 A.L.R.2d 628. In each case it was held that a voluntary
payment in one state did not bar a subsequent claim in another, though prior payments would
be credited to the later award.
5
Yet, close examination of those cases shows that the state to
which the later application was made did not have a statute similar to Nevada's irrevocable
waiver law. Accordingly, their effect upon the resolution of the point before us is
considerably diminished, if not eliminated entirely. Here we are faced with a legislative
declaration of policy that was not present in the Cline, Industrial Exchange and Miller cases.
Though it may be argued (as, indeed, the claimants-respondents do contend) that a careful
dissection of the Idaho compensation act will show that a "proceeding for compensation"
was not commenced there,6 a contrary position is equally tenable.
____________________

4
Plaintiffs do not contend that the reservation of rights to proceed in Nevada avoids the prohibition of the
statute, if it is otherwise applicable.

5
Voluntary payment in this context means the payment of compensation by agreement of the parties and in
the absence of a formal award by the state industrial commission or a court.
Idaho compensation act will show that a proceeding for compensation was not commenced
there,
6
a contrary position is equally tenable. In the final analysis, our task is to accord
appropriate significance to the policy of Nevada as declared in its legislative enactment.
[Headnote 4]
We find no other state with a statute identical to NRS 616.530. Its apparent purpose is to
compel a claimant to elect between proceeding in Nevada or in any other state. It assumes
two coexisting remedial rights, cf. McColl v. Scherer, 73 Nev. 226, 315 P.2d 807, and has
application only where a claimant is entitled to compensation under the laws of more than
one state.
7
The forced election is designed to assure those who contribute to the Nevada
State Insurance Fund, NRS 616.430 (and who also pay premiums in another state to
provide compensation for the same occurrence), that an employee, or his dependents, shall
receive compensation from one state only. In the legislative scheme it is the counterpart of
NRS 616.525 to which we have heretofore referred. Though some may think the legislative
purpose severe in application (preferring as a policy the idea that the claimant should be
permitted to obtain the highest compensation allowed by any single state having an
applicable statute, without penalty for having made application in another state), yet it is
within its province to so provide.
____________________

6
Claimants primarily rely on 11 Idaho Code 72-402. It reads: No proceedings under this act for
compensation for any injury shall be maintained unless a notice of the accident shall have been given to the
employer as soon as practicable but not later than sixty days after the happening thereof, and unless a claim for
compensation with respect to such injury shall have been made within one year after the date of the accident; or,
in the case of death, then within one year after such death, whether or not a claim had been made by the
employee himself for compensation. Such notice and such claim may be made by any person claiming to be
entitled to compensation or by some one in his behalf. If payments of compensation have been made voluntarily
the making of a claim within said period shall not be required. Claimants construe this language to mean that
the mere filing of a claim followed by voluntary payments does not amount to the commencement of a
proceeding under Idaho law, in the absence of some further action, such as the request for a hearing. Such a
construction would lead to the incongruous result that a request for a board hearing following the carrier's denial
of a claim would be an irrevocable waiver, while filing a claim and receiving benefits would not be a waiver of
rights under Nevada law.

7
If a claimant commenced a proceeding, or an action for damages in another state, but was denied
compensation by a final board or court determination NRS 616.530 could not be invoked to bar compensation in
Nevada.
should be permitted to obtain the highest compensation allowed by any single state having an
applicable statute, without penalty for having made application in another state), yet it is
within its province to so provide. It is not within ours to interfere. We therefore conclude that
the judgment below must be reversed and the cause dismissed.
____________
79 Nev. 503, 503 (1963) Golden v. Tomiyasu
RICHARD GOLDEN and AUDREY Y. GOLDEN, Appellants, v. BILL YONEMA
TOMIYASU, KIYO TOMIYASU, UWAMIE TOMIYASU, and NANYU TOMIYASU,
Respondents.
No. 4625
December 23, 1963 387 P.2d 989
Marshall, Judge.
Action to set aside a trustee's sale on foreclosure of a deed of trust. The trial court entered
judgment for plaintiffs and defendants appealed. The Supreme Court, Badt, C. J., held 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 trustee's sale on foreclosure of a deed of trust.
Reversed.
Babcock & Sutton, of Las Vegas, for Appellants.
Harry E. Claiborne, of Las Vegas, for Respondents.
1. Mortgages.
Trustee's sale of property en masse was entirely discretionary, and could not be considered a basis for
setting aside the sale where it was pursuant to terms of the deed of trust and statute, and was with consent
of all persons present. NRS 107.030, subd. 6.
2. Mortgages.
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 a trustee's
sale on foreclosure of a deed of trust.
3. Mortgages.
Evidence, in action to set aside a trustee's sale on foreclosure of a deed of trust, was insufficient to
suggest inadequacy of price, if any, resulted from fraud, conspiracy, collusion or other fault.
OPINION
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.
The Tomiyasus had executed a second deed of trust to a trustee to secure the payment of
$13,564 to the predecessors and assignors of the First National Bank. This was subject and
subordinate to a first deed of trust in the sum of $38,968.29. On default of the second deed of
trust the trustee, pursuant to demand of the bank as beneficiary, proceeded to sell the property
under the powers of the second deed of trust. A public sale was had, at which the Goldens
became the purchasers for the sum of $18,025.73. The Tomiyasus, trustors, commenced this
action in the court below to set aside the trustee's sale and to cancel and annul the deed
executed pursuant thereto and tendered into court the amount of the purchase price and
offered to pay any accrued costs. Such tender was made with the filing of the complaint on
June 14, 1962, some 50 days after the sale.
The case was tried to the court without a jury. The court rendered a judgment as prayed,
setting aside the sale and annulling the deed and ordering the clerk of the court to pay to the
Goldens the amount deposited by the Tomiyasus. This appeal followed.
The learned trial judge filed a written decision in which he reviewed each of the reasons
advanced by respondents, why the sale should be set aside. Each of such reasons was rejected
by the court as being sufficient in itself to require the setting aside of the sale, but stated that
the reasons asserted and discussed in the opinion do indicate that because of voluminous
irregularities the sale must be set aside.
Following the recitals contained in the decision, the court directed findings to be prepared,
and signed the formal findings, including findings XVI and XVII which had not been
mentioned in the findings contained in the written decision. The added findings are as
follows:
XVI. The court finds that the irregularities and confusion heretofore mentioned would
have been, and was misleading, to prospective bidders, and would have discouraged, and did
discourage, the attendance of prospective bidders at the sale, which could have, and did,
result in the property being sold for an inadequate price to the injury of the trustors.
XVII. The court finds that the trustee, Nevada Title Insurance Company, their agents and
employees, in exercise of their power under the trust deed, was an agent of both parties and it
was its duty on making the sale to act in good faith as an indifferent person, exercising good
faith and a just and fair discretion in protecting the rights and interests of the trustors with all
reasonable effort to make the sale beneficial to such parties by obtaining the full value of the
property, or the best price possible, or a reasonable amount, but intentionally, or
unintentionally, failed in its said duty in that regard in the manner hereinabove mentioned in
these findings.
Although the evidence is in conflict, there is substantial support of the court's finding that
the land has a market value of $2,500 an acre. As five acres had been released from the deed
of trust, there remained approximately 80 acres valued at a total of approximately $200,000.
As against the inadequacy of the bid of $18,025.73 as compared with this valuation, the
following facts should be noted: {1) The deed of trust here involved was subject to a lien of
a prior deed of trust in the sum of $3S,96S.29.
(1) The deed of trust here involved was subject to a lien of a prior deed of trust in the sum
of $38,968.29.
(2) Said first deed of trust called for monthly payments of $709.00 each.
(3) The Tomiyasus became delinquent in their payments on the first deed of trust to the
extent that the First National Bank, beneficiary under the second deed of trust, was compelled
to advance, up to the time of the foreclosure sale, the sum of $5,809.52. The total under the
two deeds of trust amounted to approximately $57,000.
(4) The Tomiyasus were in continual default also in payments of the second deed of
trustthe sum secured thereby having increased to $18,024.73 from the original
indebtedness of $13,564.
(5) On October 26, 1961, the First National Bank, beneficiary under the second deed of
trust, notified Nevada Title Insurance Company, the trustee, that the trustors were in default,
in that the last payment on the principal had been paid in October, 1960, and interest had been
paid only to March 11, 1961. Accordingly, the trustee was instructed to prepare notice of
default and election to sell in accordance with the provisions of the deed of trust. Copy of the
bank's said letter was mailed to Bill Yonema Tomiyasu. The notice of breach and election to
sell were duly recorded as required by the deed of trust. Publication of notice of trustee's sale
was duly made and notice that the publication was running was mailed to Bill Yonema, said
sale being noticed for March 13, 1962, at 10 a.m., at the front entrance of the Nevada Title
Insurance Company.
(6) From September to November, 1961, Bill Yonema (the father) was absent in Japan and
handed the management of the property over to his son, Nanyu, who continued such
management but kept his father fully advised. Bill Yonema knew of the delinquency, the
imminence of foreclosure, the receipt of the notices from the trustee, and they made various
attempts to refinance the loan through other sources.
(7) The advertised sale was postponed on seven separate occasions, the final sale date
being April 25, 1962.
Each of such postponements was for the benefit of the Tomiyasus, who were making constant
efforts to raise the necessary funds. Each postponement was proclaimed from the front door
of the trustee's office. On none of these occasions did any other buyers appear. If on some of
these occasions the trustee waited an additional ten or fifteen minutes before proclaiming the
postponement, this cannot be termed even an irregularity. Its actual effect was to give further
opportunity for bidders to appear.
(8) At the sale the agent of the trustee read the notice of the sale but when he came to the
description, gave a general description of the four parcels without reading the lengthy
description of the legal subdivisions, which description appears in the record as some two and
one-half typewritten, legal-sized pages. All parties present knew exactly what land was being
sold. He announced that, with the consent of those present, he would use that method. No
objection was voiced. After reading the notice he explained that five acres had therefore been
released from the deed of trust.
(9) The First National Bank, beneficiary, bid the amount of its debt, $18,024.73. The
Goldens bid a few cents more and the trustee suggested that their bid should be at least $1
more, so they bid $18,025.73. There were no further bids and the property was knocked down
to them for their bid.
(10) They went into the trustee's office and Mrs. Golden wrote out a personal check on the
First National Bank for the amount bid. The trustee telephoned the bank and asked if it would
honor said check and was advised that it would. The trustee thereupon accepted the same. At
the bank this check, which was made payable to the trustee, was replaced by a cashier's check
to the trustee which then drew its own check in favor of the bank, the beneficiary.
The learned trial judge held that inadequacy of price standing alone would not be sufficient
to justify setting aside the trustee's sale. He also stated that the failure of the trustee to sell for
cash standing by itself would seem to have little merit. He also noted that the sale en masse
and not in separate parcels was no irregularity, as it was within the discretion of the
trustee and that in any event he could have received no bid if he offered the property in
separate parcels.
en masse and not in separate parcels was no irregularity, as it was within the discretion of the
trustee and that in any event he could have received no bid if he offered the property in
separate parcels. He noted the claim of irregularity in the fact that the description did not list
the water well, buildings, plants, trees, and shrubbery, and was therefore inadequate. As to
this, the notice of sale used the same description as that contained in the deed of trust and
which also included the appurtenances.
Reference has been made to the court's rhetorical questions and its review of certain
circumstances. It thought that the bid of the First National Bank of $18,024.73 should have
been accepted. It asks, Why did Mr. Adams [the vice-president and agent of the trustee]
advise Mrs. Golden to increase her bid? This could hardly be characterized as an increase.
Over $18,000 in round figures, it brought the bid to $18,025.73 instead of $18,024.73. Why
did they accept a check in the amount of $1.00 more than the mortgage holder had bid?
These matters hardly require argument or answer, as the court frankly followed with this
statement: These matters do not readily convince the court that anything was wrong * * *.
This in turn, however, is qualified by doubts in the court's mind as to why the trustee
presumed to give the Goldens any advice. The court then ponders the question as to a
possible right of redemption from the bank, which was foreclosed by the action of the trustee
and the cooperation of the defendants. As to this, the court again remarks: This item,
standing alone, would be of no particular consequence but, however, as we pass on, other
comments will develop. The court then turns to the value of the land as $2,500 per acre and
the sundry postponements of sale, and asks the one salient question: Was the sale calculated
to make it possible for [the Goldens] to bid without competition? This is apparently the sole
irregularity that the court did not itself dispose of.
As noted, the court's formal finding No. XVI was that irregularities in the postponements
of the sale were "misleading, to prospective bidders, and would have discouraged, and did
discourage, the attendance of prospective bidders at the sale, which could have, and did,
result in the property being sold for an inadequate price to the injury of the trustors."
misleading, to prospective bidders, and would have discouraged, and did discourage, the
attendance of prospective bidders at the sale, which could have, and did, result in the property
being sold for an inadequate price to the injury of the trustors. An intense examination of the
entire transcript reveals that there is not a word of testimony to support this finding. During
the oral argument counsel for the respondents was asked by members of this court to point to
anything in the record indicating that any irregularity in the matter of any of the
postponements or the proclamation thereof had any such effect or any effect damaging or
prejudicial to the respondents. Counsel's reply was that the inadequacy of the price received
was the damage, but was unable to point out any damage or disadvantage or harmful effect by
way of preventing or discouraging the attendance of prospective bidders. As noted heretofore,
no bidders, other than the parties now before the court, appeared at the original time set for
the sale or at any of the postponements.
We are compelled to dispose of the various grounds on which respondents attempt to
support the judgment as follows:
(1) As to the asserted deficiency in the trustee's notice of salethis was given in strict
compliance with the terms of the deed of trust and the statute.
(2) As to asserted irregularities in the sundry postponements of the saleeven assuming
such irregularitiesevery postponement was made for the benefit of the trustors and there
was no evidence that any bidders were deterred from bidding or appearing.
[Headnote 1]
(3) As to the attack on the trustee's sale of the property en masse, this was entirely within
the discretion of the trustee, NRS 107.030(6), (incorporated by reference in the deed of trust),
Py v. Pleitner, 70 Cal.App.2d 576, 161 P.2d 393, was pursuant to the terms of the deed of
trust and the statute, and was made with the consent of all persons present.
(4) As to the release of the five-acre parcel as noted when the notice of sale was read, we
can see no prejudice to any party involved. The five acres were released to the attorney for the
Tomiyasus.
(5) As to the acceptance of the bidder's check in place of the cash sale required, it was
immediately determined that the First National Bank, which was also the beneficiary, advised
that it would honor such check, and it did so on presentation. No objection was made.
(6) As to the conduct of the trustee, the record is devoid of any evidence supporting the
finding that intentionally, or unintentionally, [it] failed in its said duty * * * to act in good
faith as an indifferent person, exercising good faith and a just and fair discretion in protecting
the rights and interests of the trustors with all reasonable effort to make the sale beneficial to
such parties by obtaining the full value of the property, or the best price possible, or a
reasonable amount * * *. The trustee gave every notice required by the terms of the trust
deed and by the statute.
(7) The learned trial judge apparently thought, and respondents urge, that there was
something suspicious in the fact that the trustee notified the Goldens of the sale and notified
no other parties. But the Goldens, and no other parties, had asked for this information. In any
event, the Goldens' bid inured to the benefit of the trustors.
(8) This leaves as our sole consideration the question whether the inadequacy of the price
standing alone justified the setting aside of the sale. Respondents contend that when the
inadequacy is so great as to shock the conscience, this is sufficient justification for the
judgment. Respondents rely for this conclusion on the statement contained in 59 C.J.S.,
Mortgages 601, at 1055-1057: The inadequacy of the price, in order to furnish a basis for
setting aside or avoiding the sale, must be gross, and such as to shock the conscience of the
court, or to suggest fraud, misconduct, or the like. The inadequacy, if any, must be
determined on the basis of the real value of the land at the time of the sale and its relation to
the total debt against the property, and the sale will not be set aside where there is a
substantial dispute as to the market value of the property or as to the fairness of the price
paid.
relation to the total debt against the property, and the sale will not be set aside where there is
a substantial dispute as to the market value of the property or as to the fairness of the price
paid. On the other hand, where the price realized at the sale was so grossly inadequate as to
shock the conscience, it may by itself raise a presumption of fraud, trickery, unfairness, or
culpable mismanagement, and, therefore, be sufficient grounds for setting the sale aside. In
the final analysis, the question whether the price was grossly inadequate necessarily depends
on the peculiar facts of the given case. Respondents also quote the following:
At page 1056, 59 C.J.S., Mortgages 601, it is said:
In the case of a very great disparity, the Court will be astute to extract from the facts of
the case sufficient to justify it in annulling the sale by reason of mistake, surprise, unfair
conduct, or the like.'
The foregoing is just a part of a very lengthy section. Many cases are cited in the footnotes.
We have studied a vast number of these cases, as well as the cases cited in A.L.R., Annot., 8
A.L.R. 1001, under the title Sale under power in mortgage or trust deed as affected by
inadequacy of price. The rule as there stated is the one cited by the learned trial judge: Mere
inadequacy of price alone is not sufficient to invalidate the sale of land under a power in a
mortgage or deed of trust. In support, many cases are cited where the inadequacy of price
was far greater than appears here. In the present case, accepting the court's conclusion that the
value of the land was $2,500 an acre or an aggregate in round figures of $200,000 as against
the aggregate debt evidenced by the first and second deeds of trust of approximately $57,000,
the property sold at approximately 28.5 percent of its value. The A.L.R. note cited refers to
numerous cases in which the property was sold for a far smaller proportion of its value than
28.5 percent, in which cases the court refused to invalidate the sale. The cases cited are too
numerous to discuss. It is true, as asserted by respondent, that many cases in approving the
rule that mere inadequacy standing by itself is not sufficient to set aside the sale, qualify it by
saying, "unless the inadequacy is so gross as to shock the conscience."
the sale, qualify it by saying, unless the inadequacy is so gross as to shock the conscience.
In a few jurisdictions the rule is expressed that mere inadequacy of price is not sufficient to
set aside a sale unless it be so gross as to raise the inference of fraud or imposition, or similar
language. However, a study of the cases indicates that the courts in thus parroting the rule had
no occasion to insert the shock-the-conscience clause in the particular cases under
consideration, and such quotation appeared in virtually every case to be pure dictum, as there
were other elements indicating fraud or imposition on the debtor, or such irregularities as
would throw doubt on the good faith of the trustee.
The reason for the insertion of such clauses seems clearly to be that courts of equity are
averse to tying their hands against equitable relief whenever it might seem justifiable. It is not
strange to find courts of equity thus desiring to protect themselves. They should, however, not
feel under such necessity. Each case is precedent only under the facts of that case. Here we
find scores of cases refusing to grant relief upon the ground of inadequacy of price alone. It
should be unnecessary to qualify such holding by saying that they will not be bound to it
when other factors exist.
Indeed the same language was used by this court in Dazet v. Landry, 21 Nev. 291, 298, 30
P. 1064, but it was entirely unnecessary to the decision itself and was pure dictum. The case
involved the propriety of a sheriff's sale of mining property to the second highest bidder. The
appellant had bid $8,500, but, not having the cash, asked for 15 minutes' time to get the
money. This was granted and the sheriff requested in the presence and hearing of the plaintiff
that all bidders and bystanders remain, as there would be no sale until the plaintiff's return
within the time mentioned with the money to make his offer good. The people did remain and
the sheriff waited 30 minutes, and as the plaintiff did not return, proceeded to resell the
property and sold it to one Lacrouts for $6,100, the highest bid. This court held that no fraud
or collusion was shown to exist between the officer and any bidders, and this court affirmed
the sale to Lacrouts.
and this court affirmed the sale to Lacrouts. It will readily be seen that there was no occasion
to refer to the shock-the-conscience theory.
The early case of Runkle v. Gaylord, 1 Nev. 123 (Vol. 1-2 Nev. 100) (1865), is discussed
in the A.L.R. annotation 8 A.L.R. 1001, 1010, and refers to a private sale. The court's
language was quoted as follows:
To say that a mortgagee with power to sell, who has an incumbrance on the estate of less
than one-third of its valuean incumbrance which five or six months' rent will
dischargehas the right to sell the estate absolutely to the first man he meets who will pay
the amount of incumbrance, without any attempt to get a larger price for it, would in our
opinion be equivalent to saying fraud and oppression shall be protected and encouraged.
Before using this language the court had reviewed at length facts indicating collusion and
fraud. The headnote referred to the purchaser as one who knows the mortgagee is sacrificing
the property, selling it at a small fraction of its value, and that, too, when [the mortgagee]
could collect his debt out of the rents in from two to five months without sale, is not an
innocent vendee, and will not be protected in his purchase.
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.
Respondents insist that there is no divergence in the authorities to the effect that a judicial
sale will be set aside for inadequacy of price alone when such inadequacy is so gross as to
shock the conscience. Six cases are cited in support of this contention. They are cited in the
margin.
1
In each of such cases the inadequacy in price is coupled with fraud, unfairness,
concealment, oppression, or other satisfying grounds to warrant the court in its judgment
setting aside the sale.
____________________

1
Foge v. Schmidt, 101 Cal.App.2d 681, 226 P.2d 73; Gandy v. Cameron State Bank, 2 S.W.2d 971
(Tex.Civ.App. 1927); Linney v. Normoyle, 145 Va. 589, 134 S.E.554; Jackson v. Fuller, 66 U.S. App. D.C. 239,
85 F.2d 816, 819; Winbigler v. Sherman, 175 Cal. 270, 165 P. 943; Bank of America Nat. Trust & Savings v.
Reidy, 15 Cal.2d 243, 101 P.2d 77.
price is coupled with fraud, unfairness, concealment, oppression, or other satisfying grounds
to warrant the court in its judgment setting aside the sale. Such being the case, the recital of
the rule relied on by respondents is dictum.
[Headnote 2]
To discuss the hundreds of cases involving attacks on public sales by trustees under the
powers of a deed of trust where inadequacy of price is claimed, with or without the additional
elements of fraud, would be neither necessary nor desirable. We adopt the rule laid down in
Oller v. Sonoma County Land Title Company, 137 Cal.App.2d 633, 290 P.2d 880. There the
suit to set aside the sale contended that the foreclosure proceedings were improper; that the
trustee was guilty of bad faith; and that the property was sold for a grossly inadequate price.
The court held that when the offer at the time and place fixed in the original notice of sale
and without further publication and posting by oral proclamation, postponed the sale to a
definite future date, he was acting validly within the express provisions of the deed of trust,
and that no other notice of postponed sale need be given.' Since the rule in this state is so
well established, any discussion of the cases from other jurisdictions cited and relied upon by
plaintiffs' counsel would appear unnecessary. The court then referred to the inadequacy of
the consideration and said: However, even assuming that the price was inadequate, that fact
standing alone would not justify setting aside the trustee's sale. In California, it is a settled
rule that inadequacy of price, however gross, is not in itself a sufficient ground for setting
aside a trustee's sale legally made; there must be in addition proof of some element of fraud,
unfairness, or oppression as accounts for and brings about the inadequacy of price.' Several
earlier California cases are cited. The allegation of value was $25,000 and the testimony as to
value was conflicting. The sale price was $5,025. (In approving the rule thus stated, we
necessarily reject the dictum in Dazet v. Landry, supra, implying that the rule requiring more
than mere inadequacy of price will not be applied "if the inadequacy be so great as to
shock the conscience.")
than mere inadequacy of price will not be applied if the inadequacy be so great as to shock
the conscience.)
One of the cases relied on in Oller v. Sonoma County Land Title Company, supra, is Odell
v. Cox, 151 Cal. 70, 90 P. 194, in which the Supreme Court of California, after citing many
cases, said: The effect of this rule is that where such inadequacy stands alone,
unaccompanied by any unfairness or other inequitable incident, it will not authorize the
vacating of the sale. But it is universally recognized that inadequacy of price is a
circumstance of greater or less weight to be considered in connection with other
circumstances impeaching the fairness of the transaction as a cause of vacating it, and that,
where the inadequacy is palpable and great, very slight additional evidence of unfairness or
irregularity is sufficient to authorize the granting of the relief sought. * * * We think there can
be no doubt under the authorities that where, in addition to gross inadequacy of price, the
purchaser has, in the language of the United States Supreme Court, been guilty of any
unfairness or has taken any undue advantage,' resulting in such gross inadequacy and
consequent injury to the owner of the property, he will be deemed guilty of fraud warranting
the interposition of a court of equity in favor of the owner who is himself without fault.
(Emphasis supplied.)
The California Supreme Court referred to Graffam v. Burgess, 117 U.S. 180, 6 S.Ct. 686,
29 L.Ed. 839, supporting the rule of gross inadequacy if, in addition, the purchaser has been
guilty of any unfairness or has taken any undue advantage, or if the owner of the property or
the party interested in it has been for any reason misled or surprised.
It also referred to Schroeder v. Young, 161 U.S. 334, 16 S.Ct. 512, 40 L.Ed. 721, an
appeal from the judgment of the Supreme Court of the Territory of Utah affirming the decree
of the territorial trial court setting aside a judicial sale. Mr. Justice Brown, delivering the
unanimous opinion of the United States Supreme Court, said:
While mere inadequacy of price has rarely been held sufficient in itself to justify setting
aside a judicial sale of property, courts are not slow to seize upon other circumstances
impeaching the fairness of the transaction, as a cause for vacating it, especially if the
inadequacy be so gross as to shock the conscience.
of property, courts are not slow to seize upon other circumstances impeaching the fairness of
the transaction, as a cause for vacating it, especially if the inadequacy be so gross as to shock
the conscience. If the sale has been attended by any irregularity, as if several lots have been
sold in bulk where they should have been sold separately, or sold in such manner that their
full value could not be realized; if bidders have been kept away; if any undue advantage has
been taken to the prejudice of the owner of the property, or he has been lulled into a false
security; or, if the sale has been collusively, or in any other manner, conducted for the benefit
of the purchaser, and the property has been sold at a greatly inadequate price,the sale may
be set aside, and the owner may be permitted to redeem. (Emphasis supplied.)
After reciting numerous acts of oppression and fraud, the opinion goes on as follows:
There are other circumstances also found by the court below, which, taken in connection
with the grossly inadequate price paid, render it still more inequitable that purchasers
standing in the position of the defendants in this case should insist upon the letter of the
bargain, and throw something more than a mere doubt upon the fairness of the transaction.
(Emphasis supplied.)
Texas observes the same rule. In Klein v. Glass, 53 Tex. 37, the court's final conclusion
was: We do not think, under the testimony as presented by the record, that there was any
such fraud, irregularity, or unfairness in the sale as would authorize us to set it aside for
inadequacy of price. The sale brought $100. The value of the property sold was $2,000.
It will be recalled from our statement of the facts that the court below rejected all claims of
fraud and collusion except the instance of the Goldens' coming into the sale by reason of the
information given them by the trustee and their bidding one dollar more than the bid on
behalf of the beneficiary. It is quite evident, however, that this created simply a suspicion in
the court's mind. During the oral argument counsel for respondents disavowed any claim that
there was fraud or conspiracy. He stated that all he claimed was that there was collusion
between the trustee and the Goldens.
the trustee and the Goldens. It would seem to us that for the trustee to bring another bidder to
the sale could result only in benefit to the trustors. With the case of the Goldens it resulted in
raising the bid only one dollar. The beneficiary under the deed of trust naturally bid only the
amount of its debt, particularly in the realization that it was only buying the equity subject to
the first mortgage. When the Goldens raised the bid, the beneficiary was not called upon to
make a further bid. Nothing in the case warrants a conclusion of collusion to defraud the
Tomiyasus. There is no support for the trial court's intimation that there would have been a
right of redemption as against the bank but not as against the Goldens.
[Headnote 3]
To sum up, respondents seek to support the judgment by coupling inadequacy of price
with one or all of the following: (1) insufficiency of the notice of salebut this was given
strictly in accordance with statute; (2) the several postponements of the salebut these were
all for the benefit of respondents; there were no irregularities, and no prospective bidders
were misled. As to the absence of bidders, this court said in McLaughlin v. M. B. & L. Assn.,
57 Nev. 181, 60 P.2d 272: We are not aware of any authority holding that a sale of this kind
is void, for the single reason that no persons were present except the trustee and the
beneficiary's attorney or agent. (3) the sale of the property as a whole and not by
parcelsbut there was no abuse here of the exercise of the trustee's discretion, and no one
requested a sale by parcels; (4) the release of the five-acre parcelbut the five acres released
were to the attorney for the respondents; (5) the acceptance of the check of the high
bidderbut this was almost immediately converted into a cashier's check; (6) the attack on
the conduct of the trustee in alerting the Goldens to attend the sale and bid, and later in the
suggestion that the Goldens' raise in the bid be by one dollar instead of by a few centsbut
nothing in this suggests fraud, conspiracy, collusion or other fault. To these observations
there should be added the long-existing default; the fact that the trustee gave information and
knowledge to the trustors in addition to that required by statute, and particularly putting
them on notice that foreclosure was imminent; the many continuances of the sale to give
the trustors an opportunity to refinance; the actual assistance given them by the trustee;
the entire absence of anything tending to support the accusation that other bidders were
discouraged.
gave information and knowledge to the trustors in addition to that required by statute, and
particularly putting them on notice that foreclosure was imminent; the many continuances of
the sale to give the trustors an opportunity to refinance; the actual assistance given them by
the trustee; the entire absence of anything tending to support the accusation that other bidders
were discouraged. To this must be added the consideration of the practical fact that the
beneficiary was only bidding in the equity of the trustors. When bidding for the property
subject to the provisions of the first deed of trust, the beneficiary was to all intents and
purposes assuming the obligation to meet the monthly payments of $705 under the first deed
of trust, or, in default of this, in the realization that the first deed of trust could be foreclosed
and wipe out the equity purchased by the beneficiary here involved.
In virtually all foreclosures the trustor or mortgagor suffers a loss.
2
He has not been able
to meet his obligation and loses the property. When the sale is by a trustee, as in the present
case, he loses it without an equity of redemption. If the sale is properly, lawfully and fairly
carried out, he cannot unilaterally create a right of redemption in himself. If the sale is made
under a mortgage subject to redemption, he cannot unilaterally extend the period of
redemption beyond his statutory right. These are all situations which a borrower must
recognize in executing a mortgage or deed of trust. We regret, as do all courts facing such a
situation, that the mortgagor or trustor must lose his property, but we cannot arbitrarily afford
relief under such circumstances as here exist.
Reversed and remanded with instructions to enter judgment denying relief to the
respondents.
____________________

2
1. From time immemorial such irreparable injury' has been the lot of mortgagors and trustors who have
been unable to meet their obligations. Bankers Trust Co. v. Bordwell, 79 Nev. 473, 386 P.2d 732.
____________

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